Chief P. U. Ejowhomu V. Edok-eter Mandilas Limited (1986)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C.

The main issue involved in this appeal concerns the question whether the Court of Appeal was entitled to consider and indeed determine the appeal on an issue not before it. The determination of this appeal rests entirely on the answer to this question.

Appellant, the Plaintiff in the High Court, Benin City brought an action claiming against the Respondents as defendants as follows:

“…….. the sum of N176,RR6.45 (One hundred and seventy six thousand, eight hundred and eighty six naira, forty five kobo) being special and general damages peculiar to the Plaintiff and suffered by him in his peculiar circumstance as the owner of Puejo-Edaff Poultry farm resulting from the nuisance and/or unlawful damage caused by the defendant in that during the substantial part of the month of July 1982, the defendant deliberately, wrongfully and/or negligently damaged and/or rendered impassable to vehicular the Kokori Inland to Oko Idgerhe section of the Kokori Inland-Eku Road, along which the Plaintiff’s Puejo-Edaff Poultry farm aforesaid lies and situate in Okori Village Kokori inland of Aghon clan…..”

The particulars of special damages were set out in the statement of claim as follows:-

(a) 2,035 layers at N7 each. N14,245.00

(b) 1,000 seriously underweight layers

sold at N3.00 less the expected price 3,000.00

(c) Expected full lays of eggs by 2,035

dead birds i.e. 54 1/4 crates of eggs

(30 eggs in a crate) daily at N4 each

crate for 12 months 79,233.25

(d) Expected full lay of eggs for 1,000

birds which laid for 3 months only

i.e. 262/, crates daily at N4 each for

9 months 28,798.20

(e) Drugs and Medical care to keep layers

alive due to lack of food 300.00

(f) Extra cost of transporting mash-food 720.00

(g) Cost of labour and materials used for

improvised temporary wooden bridge 600.00

General Damages 50,000.00

….N176,886.45

The defendants denied liability; pleadings were ordered, filed and exchanged and the action went for trial. Although the learned trial Judge dismissed the claim of the Plaintiff he made certain findings of fact which Appellants relied upon on appeal as the fulcrum of their case in the court below, and also now in this court. In his judgment he found as follows- at pages 90 –

“Having listened to the address of learned counsel and the entire evidence adduced in this case by both sides I hereby make the following findings of fact:-

1. That Abbi-Orogun-Kokori-Eku Road was completely bulldozed in 1982 and that this was as a result of a contract for the reconstruction of the Road given to the Defendant in January, 1981 by the Government of Bendel State.
2. That Puejo-Edaff Farm belongs to the plaintiff and it is situated at the material time to this action, in a village called Okori village along the Road which was the subject of the contract of reconstruction referred to above.
3. That by reason of the construction of this road, it became impassable by motor vehicles and plaintiff could not get to his farm.
4. That Puejo-Edaff Farm which is a poultry farm was situated in Okori Village on the Kokori inland/Eku portion of the said Road. which the Defendant had rendered impassable.”

After these findings of fact the learned trial Judge found also as a fact at p.93 that Plaintiff’s enjoyment of his property the Puejo-Edaff Farm has been interfered with by acts or omissions of the defendant on the Abbi Orogun- Kokori-Eku Road, by destroying the three bridges the only means of access across the Omuen River to the Plaintiff’s farm. In his consideration of the evidence in respect of the special damage claimed by the Plaintiff the learned trial Judge said at p.93-

“Plaintiff said he had lost his birds in Puejo-Edaff Farm as a result. No evidence that he did not. No evidence that other members of the public there suffered more damages than the Plaintiff.”

The learned trial Judge considered the defence that the construction which resulted in the damage was in respect of the execution of a contract with the Bendel State Government and said at p. 95-

“However, if the job-being done by the defendant constitute a nuisance. It is no defence that it was executing a legitimate contract. If the job is done negligently it will create the nuisance. In this case negligence is not relied on by the plaintiff. His cause of action is nuisance in that the three bridges on that portion of the road were removed by the defendant and not replaced. nor alternative access created by the Defendant which could be motorable and passable by the- public and the plaintiff in particular. To this extent the plaintiffs right to bring this action is established. See A.G. vs. P. Y. A. Quarries Limited (1957) 1 All E.R. 894, 908.”

It seems to me to follow from the findings of fact made by the learned trial Judge and the conclusions arrived at, that the Plaintiff established his claim in nuisance, and that the defendant having controverted the evidence of the Plaintiff with respect to his losses or that no member of the public had suffered more damages than the Plaintiff; he was right to proceed to consider the question of damages; the issue of liability having already been determined.

In his assessment of damages the learned trial Judge relied on Moses v. Christchurch Rural District Council (1925) 2 K.B. 750 where it was held that where property is damaged as a result of nuisance, the measure of damage is the difference between the money value of the owner’s interest in the property before and after, the damage was done, and not the cost of repair. Applying this rule, and the foreseability test, the learned trial Judge rejected all the claims in (a) – (g) as outside the ambit of damages which can be claimed in an action for nuisance, The learned trial Judge stated quite pedantically that the claim for general damages was not available.

Accordingly he dismissed the claims in their entirety. Plaintiff appealed to the Court of Appeal. I consider it particularly relevant to my consideration of the judgment of the Court of Appeal appealed against to reproduce in full the grounds of appeal before that court. The appeal was by the Plaintiff. The defendant has neither cross-appealed on any grounds to sustain the judgment nor asked that the judgment of the learned trial Judge be affirmed on other grounds found in their favour at the trial. The five grounds of appeal, all relating to the determination and assessment of damages in claims founded on nuisance are as follows:

GROUNDS OF APPEAL:

“1. Having found that the plaintiff/Appellant suffered particular damage in this case over and above that experienced by other members of the public, the learned trial Judge erred in law and on the facts in not assessing and awarding special and general damages in favour of the plaintiff/Appellant on the materials contained in his uncontradicted evidence before the court.

2. The learned trial Judge was in error in refusing to award damages in favour of the Plaintiff/Appellant against the defendant/respondent in spite of the specific finding by him that the plaintiff/appellant’s enjoyment of his Puejo-Edaf Farm and property had been interfered with by the unlawful/wrongful acts of the defendant/respondent in rendering impassable the portion of road along which the plaintiff/appellant’s farm is situated.
3. The learned trial Judge misdirected himself in law and on the facts in applying the principle governing the assessment of damages in respect of private nuisance and/or diminution in property to the instant case in which the facts constitute a public nuisance causing the destruction of the plaintiff/appellant’s poultry and occasioning him other losses; and he thereby came to a wrong decision.
4. The learned trial Judge erred in law in holding that general damages are not recoverable by the plaintiff/appellant in respect of his claim in public nuisance when:

(a) the learned trial Judge expressly found that the plaintiff/appellant had suffered particular damage; and

(b) the particular damage suffered by the plaintiff/Appellant includes general damages by reason of the substantial inconvenience, delay and discomfort etc. suffered by him over and above that suffered by the general public at large.

5. The learned trial Judge misdirected himself in law and on the facts in holding:

“In Moss v. Christchurch R.J.C. (1925) 2 K.B. 750 the general rule, where property is damaged as a result of the nuisance, is that the measure of damage is the difference between the money value of the owner’s interest in the property before and after the damage was done, the cost of repair ….. In short no claims in a, b, c, d, e, f and g are within the contemplation of the law as losses recoverable in an action for nuisance.”

PARTICULARS

1. Both before and after action brought, the defendant/respondent knew about the existence and location of the plaintiff/appellant’s poultry farm as established by the evidence as well as paragraphs 6, 20 and 21 of the statement of defence filed in this case.
2. That birds lay eggs is a notorious fact and/or course of nature of which the court ought to take judicial notice.
3. As set out in grounds 3 and 4 above.

I have already stated that respondent did not appeal against the findings of fact made by the trial Judge, and actually contended in the Court of Appeal that no such findings of fact were made. Understandably, counsel to the Appellants in the Court below, as in this Court, submitted and properly too, that Counsel having not appealed against the specific findings of fact could not be heard to challenge the findings of fact so made. Counsel relied on Gravesham v. British Railways Board (1978) 3 ALL ER. 853 and Halsbury’s Laws of England 3rd Ed. Vol. 28 para. 226.

The Court of Appeal in their consideration of the grounds urged upon them which were confined to the issue of damages, decided to reopen the whole question of the liability of the Respondents. This was notwithstanding the fact that appellant has not appealed against liability and the findings of fact by the learned trial Judge. The Court of Appeal rightly observed-

“that there is no cross-appeal on the part of the respondent in regard to the trial Judge’s finding that the respondent had committed a public nuisance”. The Court however went on to give the reasons why the Court would gratuitously deal with the issue of fact not on appeal before it as follows:-

“But there is a noticeable trend of the people in this State to sue construction companies engaged in executing works that are meant for the public good, and a variety of claims is raised against them and people are forgetful of the amenities that are intended for the people. Not that the acts of such companies must be immune from all challenges in the courts, but I believe it is proper to define, in a way, the limitations that there may be to such claims some of which are frivolous in essence.”

The Court of Appeal also thought it derived support for adopting this unusual approach in this Appeal from the dictum of this Court in Akibu v. Opaleye & Anor. (1974) 1 All NLR (Pt. 11) 344 where it was said, at p. 356-

“Although this Court rehearse a case on appeal it does this only on the records and, where it is quite clear that evidence has been led in the lower Court which establishes a fact, it will make the necessary finding which the lower court failed to make.”

The court also referred to Fatoyinbo v. Williams (1956) 1 FSC. 87 at p. 89 and to the third proposition of Lord Thankerton in Thomas v. Thomas (1947) A.C. 484, 487, 488 where it was said-

“The Appellate Court, either because the reasons given by the trial Judge are not satisfactory or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.”

The Court of Appeal observed that the law as to the rights of an individual to sue and recover damages for injuries arising from public nuisance has not been dealt with properly in this case and proceeded to do so regardless of the issues for determination before it. The Court proceeded to point out matters which were not considered by the trial court but were necessary for its decision, such as whether the act of the defendant was necessary or wrongful or unreasonable. The Court decided to evaluate the evidence of the witnesses and came to the conclusion that there were conflicts and contradictions in plaintiff’s case of such a nature that there could be no finding that there had been a public nuisance and plaintiff’s claim could not lie. Since the Plaintiff’s claim has failed having not established that a cause of action for nuisance lies, the Court declined to consider the question of damages which was the issue before it.

Appellant has appealed to this Court against this aspect of the judgment. The grounds of appeal filed against the judgment are as follows:-

Grounds of Appeal

“(1) There being no appeal filed by the Respondent against the judgment of the lower Court the Court of Appeal had no jurisdiction or power to reverse the findings of fact made by the trial Court in favour of the Appellant.

(2) It was wrong in law for the Court of Appeal to have reviewed and reappraised the findings of facts made by the trial Court in favour of the Appellant, at the instance of the Respondent who has not cross-appealed.

(3) Having held that the learned trial Judge proceeded on a wrong principle with respect to the issue of damages (i.e. difference between value before the act complained of and the value after the injury – diminution in value), the Court of Appeal erred in law and on the facts in not assessing and awarding damages to the Appellant on the materials contained in his uncontradicted evidence on record.

(4) The Court of Appeal was in error in affirming the refusal of the learned trial Judge to award damages in favour of the Appellant against the Respondent in spite of the specific finding of the lower Court that the Appellant’s enjoyment of his Puejo-Edaff farm and property had been interfered with by the unlawful/wrongful acts of the Respondent in rendering impassable the portion of road along which the Appellant’s farm is situated.

(5) The judgment of the Court of Appeal is against the weight of evidence on record.”

Counsel for Appellant and Respondent filed briefs of argument. They relied on their briefs and elaborated on them in their oral argument before us. The issues arising in the appeal are common ground between the parties. These are:

“Issues Arising in the Appeal

Two issues arise for determination in this appeal. namely:-

1. Whether the Court of Appeal had jurisdiction or power to impugn and reverse the specific finding of fact of the learned trial Judge in favour of the Appellant as regards the liability of the Respondent for public nuisance, in the absence of an appeal and/or cross-appeal by the Respondent against such finding.
2. Whether, having held that the learned trial Judge proceeded on a wrong principle with respect to the issue of damages and/or the measure of damages, the Court of Appeal was right in refusing to assess and award special and/or general damages in favour of the Appellant on the basis of the evidence on record.”

In his brief of argument Dr. M. Odje S.A.N., pointed out that Respondent did not lodge an appeal or cross-appeal against the judgment or any specific findings of fact of the learned trial Judge. He referred to the observation of the Court of Appeal to that effect. It was therefore submitted that in the circumstance the Court of Appeal had no jurisdiction to go into the appraisal of the evidence of the witnesses and eventually to reverse the findings of fact as it did. Counsel relied on the recent decisions of this Court in Chief Ebba v. Chief Ogodo & Anor. (1984) 4 S.C. 84 at p. 112 where it was stated.

“…it should be plain to a Court of Appeal that when an issue is not placed before it. it has no business whatsoever to deal with it. A Court of Appeal is not a Knight errant looking for skirmishes all about the place.”

Mr Azeta, of Counsel. for the Respondent has contended before us that the Court of Appeal in rehearing the case on appeal was entitled to make the finding which the trial court has failed to make in consideration of the decision. In his submission, this can be done even without an appeal against the judgment on findings of fact. Counsel cited several decisions of this Court in support of the contention. The cases relied upon are Lawal v. Dawodu & Anor. (1972) 1 All NLR (Pt. 2) P 270 at p. 286; Fatoyinbo & Ors. v. Williams (1956) 1 FSC 7R; Omoreghe v. Ehigiator Edo SC. 142/69, 29/10/71; Chief Frank Ebba v. Chief Warri Ogodo & Anor. (1984) 4 SC 84 at p. 99; Fabumiyi & Anor. v. Obaje & Anor. (196R) NMLR 242; Benmax v. Austin Motor Co. Ltd. (1955) AC 370; Akinola & Anor. v. Oluwo & Ors. (1962) All NLR 224. Counsel then submitted that where the facts found by the Court are wrongly applied to the circumstances of the case or where the inferences drawn from these facts are erroneous or indeed where the findings of fact are not reasonably justified or supported by the credible evidence given in the case, a Court of Appeal is in as much a good position to deal with the facts and findings as the Court of trial.

It seems to me unarguable that Counsel for the Respondent misunderstood the issue involved in grounds 1 and 2 of the grounds of appeal, before us. The issue is simply that there being no appeal against the findings of fact by the learned trial judge, there is no issue before the Court to enable it evaluate any findings of facts made by the trial judge.

Counsel for the Respondent has conceded, and he cannot do otherwise, that there was no appeal to the Court of Appeal against the findings of fact made by the trial Judge but contends that nevertheless the Court can, in rehearing the appeal consider findings of fact even if not appealed against. It is well settled that the Court is only entitled to consider an appeal on the grounds of error of law or fact placed before it in the grounds of appeal filed. An appellant cannot without leave of the Court be heard on any other grounds.

The whole purpose of grounds of appeal is to give notice to the Respondents of the errors complained of – see National Investments and Properties Ltd. v. Thompson Organisation (1969) NMLR 99. Thus where an appellant relies on any ground this must be properly raised either by way of a ground of appeal or as a cross-appeal if a Respondent. Any issue not raised in a ground of appeal in this manner is clearly not before the court. Accordingly, it is not open to the court to raise an issue which the parties have not raised – see Inua v. Ntah (1981) All NLR 576. It has been held that where a Court decides to raise such an issue because it is material for the determination of the appeal before it, the parties must be given an opportunity to argue the point before the decision is taken – see Kuri v. Balogun (1978) 1 S.C. 53.

The proposition is both elementary and fundamental to our judicial system that there is a presumption that the judgment of the trial Court is correct, and the burden of showing the contrary is always on the appellant, – see Williams v Johnson (1937) 2 WACA 253; Kisiredu & Ors. v. Dompreh & Ors. (1935) 2 WACA 286; Akesse v. Ababio (1935) 2 WACA 264; Folorunso v. Adeyemi (1975) 1NMLR 128. It is a well settled rule that findings of fact in a trial are matters especially reserved for the trial Judge who saw and heard the witnesses – see Balogun & Ors. v. Agboola (1974) 1 All NLR (Pt. 2) 66.

Applying these principles to the issue involved in grounds 1 and 2 of the grounds of appeal before us, it is clear that the Court of Appeal had no jurisdiction to raise and consider the issue whether the trial judge was right in his findings of fact that Respondent was liable to the Appellant for nuisance. The Court of Appeal has admitted that Respondent has not appealed against the finding of the learned trial judge. Accordingly, the presumption that the finding of fact by the learned trial Judge is correct stands. The Court of Appeal therefore has no jurisdiction, having not been called upon by the Respondent by a ground of appeal properly filed, to evaluate the evidence and substitute its own views of what it considers the trial Judge ought to have found.

Counsel for the Respondent has submitted that the right to evaluate the evidence even if not called upon to do so is derived from the exercise of jurisdiction under section 16 of the Court of Appeal Act 1976, and Order 1 r. 20(4) & (5), Order 3 r 23 of the Court of Appeal Rules 1981 as amended. I do not think the provisions relied upon by Counsel for the Respondent can be construed to give the effect suggested. The provisions are reproduced below for ease of reference.

Section 16 of the Court of Appeal Act No. 43 of 1976 provides as follows:-

“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other direction as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.”

Order 1 r. 20(4) and (5) of the Court of Appeal Rules 1981 provide as follows:-

(4) “The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require including any order as to costs.”

(5) “The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of court below, or by any particular party to the proceedings in that court, or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties.”

The word “rehearing” within the con of Section 16 of the Court of Appeal Act 1976 has been construed by this Court in Jadesimi v. Okotie-Eboh (1986) 1 NWLR 264 to mean a hearing on the printed record by examination of the whole evidence both oral and documentary tendered before the trial court and forwarded to it. It means an examination of the case as a whole. The purport of Section 16 is to vest in the Court of Appeal all the powers of a court of first instance in the determination of the appeal before it. Counsel for the Respondent relying on Section 16 of the Court of Appeal Act, 1976, has submitted that the Court of Appeal was right in raising suo motu, the question of the liability of the Respondent to the Plaintiff for nuisance based on the findings of fact by the learned trial Judge notwithstanding that Respondent had not appealed against the findings of fact. Counsel for the Appellant has submitted that the Court of Appeal was not competent to consider the issue, since Respondent had not appealed against the finding of fact. I have already reproduced the provisions of order 1 r 20(5) of the Court of Appeal Rules 1981. The part of the Rule relied upon states.

“The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court or that any ground for allowing the appeal or for affirming or varying the decision of the court is not specified in the notice…”

This provision follows immediately after sub-rule (4) of Rule 20 of Order 1, where the Appeal Court is empowered to draw inferences of fact and to give any judgment or make any order which ought to have been given or made, in relation to an appeal before it. It would seem that these provisions read together with Section 16 of the Court of Appeal Act, 1976, leave the Court of Appeal at large by enabling it to raise suo motu and decide findings of fact or issues of law decided by the Court of trial and in respect of which neither party in the Court of Appeal has complained. There is support for this view in Hanson v. Wearmowh Coal Co. & Anor. (1939) 3 All ER 47. In this case Hanson’s house and property were damaged as a result of explosion from gas leakage from a gas main of the Sunderland Gas Co. The gas leakage resulted from the operations of the Wearmouth Coal Co. Hanson sued both the Wearmouth Coal Co. as the 1st Defendant and the Sunderland Gas as the 2nd Defendants claiming damages from them on the grounds of nuisance. The trial Judge dismissed the action against the Coal Co. but found the Gas Co. liable and awarded damages on the ground that they were negligent in not taking steps to prevent the danger resulting from the activities of the Coal Co. The Gas Company appealed on the ground that they had not been negligent. They had not asked for contribution from the Coal Company if they were found to be liable. The Coal Company contended that as the Plaintiff had not appealed against the finding that they were not negligent and therefore not liable, the Court of Appeal were not entitled to consider the question of contribution between the defendants under the Law Reform (Married Women and Tortfeasors) Act 1935. Goddard L.J. rejecting the contention said,

“The gas company were entitled at the trial, by reason of the provisions of the Law Reform (Married Women and Tortfeasors) Act 1935, to show if they could, that the Coal Company were liable in whole or in part for the accident so as to obtain the benefit of indemnity or contribution given by the Act. The duty of the court below was to decide on the rights of the parties at the date of the writ. The Court of Appeal must rehear the case and give the judgment which ought to have been given below and, if the judgment below should have been that both defendants were liable, so that a right of contribution would arise, this Court has power to enter judgment accordingly, even though the plaintiff be content with judgment against one defendant.”

In this case the Gas Company had appealed against liability for nuisance and had not asked for contribution from the Coal Company. Hence, the Court of Appeal dismissing the appeal observed.

“The result is that no question of contribution arises, and the appeal of the gas company against both the plaintiff and the Coal Company accordingly fails…”

Again in Attorney-General v. Simpson (1901) 2 Ch. 671, the judgment of the trial Court was that the public were entitled to pass through the locks without paying any toll, and through the stanch on payment of the statutory toll, and that the Defendant was not liable to maintain or work any of the locks or the stanch. The defendant appealed from the judgment, other than the latter part of the declaration. The Plaintiffs did not cross-appeal. In allowing the appeal and deciding that the defendant was entitled to a reasonable toll for passage of boats through the locks, it was held that the Court had power also, under Order LVIII r. 4, to vary the judgment in favour of the plaintiffs by declaring that the defendant was bound to maintain and work both the locks and the stanch, and the judgment was varied accordingly.

It appears to me clear from the judgments of Vaughan-Williams and Stirling LJJ to which Rigby LJ agreed that the court regarded the delegation to maintain or repair the stanch in such a condition as to keep the river navigable as dependent upon the right to take the toll. It follows therefore that if the defendant was entitled to a reasonable toll for passage of boats he was bound to maintain or repair the stanch for the purpose.

In Hanson v. Wearmouth Coal Co. and Anor. (supra), the Sunderland Gas Co. failed in its appeal asking for contribution from the Coal Company because the Court of Appeal did not find the Coal Company also liable, consequently the question of contribution which would have followed if they had been so held liable did not arise. In Attorney-General v. Simpson (supra) since the obligation to repair or maintain the stanch for navigation purposes was dependent upon the right to take tolls the declaration of such obligation following upon the right to take tolls was appropriate even though there was no appeal by the Plaintiff. The principle would seem to be that in ensuring the determination on the merits of the real question in controversy between the parties, the Court of Appeal in the exercise of its powers of rehearing under section 16 of the Court of Appeal Act 1976, and Order 1 r 20(5) is entitled to make any order or give any judgment as the case may require. The limiting expression in Order 1 r. 20(5) is “ensuring the determination on the merits of the real question in controversy between the parties…..

The rule does not envisage the circumstance where an appeal court would rely upon an issue unconnected with the real question in controversy between the parties, and determine the appeal on such ground. Mr Azeta has submitted to us, and correctly too, that where the learned trial Judge has drawn a mistaken or erroneous conclusion from proved facts, the Court of Appeal is in as much a position to deal with the fact and finding as the court of trial. Counsel relied on Lawal v. Dawodu & Anor. (1972) 1 All NLR (Pt. 2) 270, Fatoyinbo v. Williams (1956) I FSC 78; Maja v. Stocco (1968) NMLR 372; Fabumiyi & Anor. v. Obaje & Anor. (1968) NMLR 242; Awoyale v. Ogunbiyi (1986) 2 NWLR 626 and similar cases where there was appeal against specific findings of fact in the court below.

The circumstances in which the Court of Appeal is entitled to interfere with and reverse the findings of fact of the Court of trial are well settled. A Court of Appeal will only interfere with a finding of fact in the court below when it is clear that the finding is perverse, and not flowing from the facts relied upon, or is not a proper exercise of his judicial discretion – Onowan & Anor. v. Iserhein (1976) 1 NMLR 263. Where also there is ample evidence and the trial Judge has failed to evaluate it and make proper findings, the Court of Appeal is entitled to evaluate such evidence and make the findings which the court below ought to have made except where the matter rests on the credibility of witnesses – Shell-BP Petroleum Development Co. of Nigeria Ltd. v. His Highness Pere Cole & Ors. (1978) 3 S.C. 188. However, there must be before the Court a ground of appeal raising the issue directly or on which the determination of the issue depends – see also the recent decision of this Court in Chief Frank Ebba v. Chief Warri Ogodo & Anor. (1984) 4 SC at p 99.

The issue in the appeal before us is not whether the Court of Appeal should evaluate the findings of fact or whether the issue whether the Defendant is liable for nuisance is before it Again if it is not, as it is common ground that it is not, one of the grounds of the appeal before the Court; is the question of the liability an issue dependent upon and follows upon the determination of damages

It is obvious that the question of the assessment of damages follows upon the determination of liability. The Appellant in this case has not appealed against liability since the finding of fact was in his favour. The Respondent also did not appeal against the adverse finding of fact because the action against him was dismissed. There is some similarity between this case and the case of Rutherford v. Richardson (1923) AC 1, decided by the English House of Lords. The facts of the case were that Mrs Alice Rutherford presented a petition for divorce from her husband Colonel Norman Rutherford on August 4, 1920. She alleged adultery and cruelty. She alleged that the adultery was committed with Ammy Richardson. Colonel Rutherford was served with the petition, he entered appearance but did not defend. Miss Richardson sought and was granted leave to defend the allegation of adultery and asked that the petition should be dismissed so far as it was based upon the allegations of adultery. The trial Judge, Branson J, found both adultery and cruelty proved and granted a decree nisi. On appeal to the Court of Appeal by Miss Richardson, the finding of adultery by the trial Judge was reversed on the ground that the petitioner had failed to establish that adultery had been committed between Colonel Rutherford and Miss Richardson, and directed that the King’s Proctor should argue the question whether the decree nisi should be deemed valid notwithstanding the finding of the Court of Appeal. The Court after hearing the King’s Proctor, the Court of Appeal ordered that the appeal should be allowed, and Miss Richardson, the intervener, dismissed from the suit with costs above and below, and that the decree nisi be rescinded: and that a decree of judicial separation be granted between the petitioner and the husband. This is despite the fact that the husband neither defended the petition nor did he appeal against the decision. The House of Lords held that upon the finding it was the duty of the Court of Appeal and of the House of Lords to rescind the decree nisi and to pronounce the decree of judicial separation which the trial Judge, if he had determined the issue of adultery differently might have pronounced.

In this case the issue whether there was a correct finding of adultery against Miss Richardson, was an issue before the Court of Appeal, and the reversal of that finding automatically affected the verdict against Colonel Rutherford. This is because the decree nisi in favour of the petitioner was based on the erroneous finding of adultery. It therefore was not relevant to the issue whether Colonel Rutherford appealed against the finding so long as a party similarly affected has successfully appealed against the finding. There is no doubt that the trial Judge on a finding of cruelty could only have decreed judicial separation. The Court of Appeal and the House of Lords were therefore entitled to enter such judgment, as the court of trial could have given in the circumstance. An issue is the question in dispute between the parties necessary for the determination by the Court. – See Akintola v. Solano (1986) 2 NWLR 598. It is only that with which the court is concerned.

In each of the cases cited and discussed the ground on which the Court of Appeal acted was an issue before the court even though it was not a ground of appeal relied upon by the Respondent in whose favour the verdict was given by the Appeal Court. This is not the situation in the appeal before us where the issue of liability of the Respondent was not raised in any of the grounds of appeal before the court and the Court of Appeal was therefore not competent to do so. – See Inua v. Nta (1961) All NLR 576. The attitude of this Court in such cases was stated with characteristic lucidity in Chief Ebba v. Chief Ogodo & Allor. (supra) when it declared,

“With utmost respect, it should be plain to a Court of Appeal that when an issue is not placed before it, it has no business whatsoever to deal with it. A Court of Appeal is not a Knight errant looking for skirmishes all about the place.”

What this Court has unequivocally and consistently ruled against is exactly what the Court of Appeal has done in this case. The Court of Appeal was therefore in error to have suo motu raised the issue of the liability of the Respondent and decided the appeal against the Appellant on that ground when that was not an issue before it in any form. In Ogida v. Oliha (1986) 1 NWLR 786,794, the Court of Appeal reversed the decision of the trial Judge on the ground that the respondent’s action was incompetent because appellant was sued in his personal capacity. The capacity in which appellant was sued was not in issue and did not call for decision. Grounds 1 and 2 of the grounds of appeal therefore succeeds. Accordingly the finding of fact by the trial Judge that the Respondent is liable to the Appellant in respect of the acts of nuisance committed by the former which resulted in the damages claimed by the latter remains undisturbed.

This Court has now been invited to assess and award the damages which the Courts below should have on the face of the uncontradicted evidence before them have done. Grounds 3, 4 and 5 of the appellants grounds of appeal were relied upon. The main complaint of the appellant is that the Court of Appeal having been diverted to reverse the finding of fact that respondent was liable on the action did not consider the question of damages which the trial High Court discussed at length, but from an entirely different approach. The Court of Appeal was satisfied that the act of nuisance not having been proved, the issue of damages did not arise. It was said at pp 136-137. “In any event in this case it is not necessary to consider the question of damages for, if I am right in finding that no public nuisance was committed by defendants, then the claim for damages would fail.” This is precisely what appellant is saying. It is that the Court of Appeal was wrong in its finding that public nuisance was not established. This is because it was not an issue before it. The Appellant’s complaint is that the Court of Appeal was required from the grounds of appeal formulated and their stated view of the law to have assessed the damages suffered by the Appellant. Of course this would have followed naturally if the court had not erred in reversing the trial Judge on the finding of fact that respondents were liable. This is beeause in discussing the question of liability for nuisance, they said. at p.13-

“It is the clement of unreasonableness of the action leading to injury, its being unnecessary for what was being done, and its leading to causation of injury that was the direct, natural, immediate and necessary consequence of defendant’s act resulting in the injury to the plaintiff that is paramount in all such cases, if any common feature is looked for.”

They went on to say-

“And, where it is established that a public nuisance has been committed and loss or injury is established the damages recovered are meant to compensate a plaintiff for the loss put upon him by the defendants’ actions. The award is not computed on the basis of the difference between value before the act complained of and the value after the injury. What is generally to be paid for is the loss flowing from the nuisance.”

Dr Odje, SAN, of Counsel to the Appellant has submitted that the Court of Appeal has enunciated the correct principle for award of damages in respect of liability for public nuisance. He pointed out that the principle applied by the trial Judge was applicable only to damages in respect of private nuisance. The trial Judge had relied on Moss v. Christchurch Rural District Council (1925] 2 KB 750 where it was held that the measure of damages in private nuisance is the diminution in the value of the property affected as a result of the nuisance. In Moss v. Christchurch RDC (supra), Mrs. Moss’s cottage was almost completely destroyed by fire caused by a spark from a steam roller which was found to constitute a nuisance. A quantity of the house bold effect was also destroyed. It was held that the defendants were guilty of negligence, and that the steam roller at the time constituted a nuisance, and that the defendants were liable for the fire apart from negligence. Salter, J. held that

“The true measure of damage is the difference between the money value of Mrs Moss’s interest before the fire and the money value of her interest after the fire.”

The Appellant contends that the issue here is one of the obstruction of the public highway and is a public nuisance. The measure of damages in this case is determined on clearly different principles. It was submitted that in public nuisance damages are not necessarily linked with interference with the enjoyment of property only, but are based on the special or peculiar or particular damage suffered by the plaintiff over and above that suffered by the generality of the public. Counsel cited in support Savage v. Akinrinade (1964) B LLR 238, Lyon v. Fishmonger’s Co. (1875 -76) 1 App. Cas. 662; Boyce v. Paddington Borough Council (1903) 1 Ch. 109; Blundy, Clark & Co. v. L & N Railway (1931) All E.R. Rep. 160.

It is common ground that the action arose from injury resulting to the Appellant from the nuisance caused by the Respondent in the construction of a public Highway by blowing up bridges normally used by the Appellant.

The trial Judge has found as a fact that Respondents are liable for committing the nuisance. The finding stands. It is a public nuisance to obstruct or hinder the free passage of the public along the highway. A private individual has a right of action in respect of a public nuisance if he can prove that he has sustained particular damage other than and beyond the general inconvenience suffered by the public. It is not necessary to prove that every member of the public has been affected. It is sufficient if he can show that the injury suffered is a direct result of the nuisance complained of. – See Iveson More (1699) 91 ER. 1224. Hence an action for public nuisance does not necessarily depend upon contiguity of the highway to Plaintiff’s property, but upon whether Plaintiff’s property injured by the nuisance is sufficiently proximate to be affected by the nuisance. – See Rose v. Miles (1815) 4 M & S. 101; Southport Corporation v. Esso Petroleum Co. (1956) AC. at p. 218.

It is necessary for the Plaintiff to prove financial loss resulting from the obstruction of the Highway. It has been held in Winterbottom v. Lord Derby (1867) L.R. 2 Ex. 316 that it is not enough for Plaintiff to prove that he has been put to expense in exercising right of abating the obstruction.

However, particular damage is not limited to special damage. It includes actual pecuniary loss, and general damage such as inconvenience and delay.

The question in this appeal is whether there was sufficient evidence before, the trial Judge and the Court of Appeal upon which the assessment of damages can be based. It is clear that the trial Judge found as a fact that Respondents were liable on the evidence before him, but applied the principle for determining damages in private nuisance to the facts as found, and held that on the basis he could not award any damages.

In coming to this conclusion the learned trial Judge held that there was no evidence of money value on items (a), (b) and (c) claimed, that items (d), (e), (f) were not foreseeable and too remote, and were therefore not damages which could be claimed not being losses which flow from the acts or omissions of the Defendant. It was accordingly held that “no claims in a, b, c, d, e, f and g, are within the contemplation of the law as losses recoverable in an action for nuisance.” It is pertinent to reproduce what the learned trial Judge said,

“I cannot presume any damage in this action which is founded on nuisance since in actions, for damage to property founded on nuisance, the general rule is that the measure of damages is the difference between the money value of his interest after the damage. There appears to be no provision in law for General Damages. I uphold the learned Counsel for the Defendant’s submission here. It is the law that a Public Nuisance is actionable only at the suit of a private person on proof of special damage.”

x x x

“Damages claimed in this case are Special Damages and to succeed in them they should be the money value of the Plaintiff’s interest before and after the wrongful act of the defendants. I therefore reject claims (a), (b), (c), (d), (e), (f) and (g) as outside the ambit of the claimable damages in nuisance.”

Counsel for the Respondent in his brief of argument and in his oral expatiation on it before us, argued that the Court of Appeal was right in not assessing damages for reasons other than those stated by the Court of Appeal itself. The Court of Appeal had stated that since there was no liability for nuisance there was no basis for assessing damages.

Mr. Azeta in supporting the judgment of the Court of Appeal has suggested other reasons. He submitted that Appellant and his witnesses had admitted during cross-examination that certain overheads were not taken into consideration in formulating the claims in respect of items (c), and (d). It was argued that since the Court cannot know what it costs Appellant to earn what was claimed, and having not deducted what it costs to produce what was claimed, it cannot be correctly said that plaintiff proved his claim. Counsel further suggested that the Court of Appeal did not award damages because there were not sufficient materials before it to do so. It was contended that since appellant was claiming for loss of expected future sales of the product of his farm without making allowance for incidental overhead expenses, any award by the Court would have been speculative. It was also submitted that appellant did not establish that he suffered peculiar, particular or special damages, nor did he prove his claims strictly. Finally, it was submitted that the alleged damages were too remote.

The question before us to decide now is only as to the determination of damages. The Court of Appeal has declined to assess damages essentially on the ground that the issue did not arise. The trial Court also adopted a view of the law which made it possible to deny the appellant’s damages after finding the defendants’ liable. Consequently, the issue is not whether the damages awarded was too high or too low, but that none was awarded at all. Under the general powers of this Court in S.22 of the Supreme Court Act, 1960, the Court in the exercise of its appellate jurisdiction has all the powers of the Court below for the purpose of rehearing the case in whole or in part or may remit the case to the court below for such rehearing; and may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of the Court. These powers have been amplified in Order 8 R. 13 of the Rules of the Supreme Court, 1985. Particularly relevant to this appeal is sub-rule 4 of R. 13 of Order 8 which provides as follows:-

“In any case where the Court has power to order a new trial on the ground that damages awarded by the court below are excessive or inadequate, the Court may, in lieu of ordering a new trial:-

(a) substitute for the sum awarded by the court below such sum as appears to the Court to be proper;

(b) reduce or increase the sum awarded by the court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included in or excluded from the sum so awarded; but except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the court below.”

This rule speaks of where the damages awarded are either excessive or inadequate, and empowers this Court to substitute by reducing or increasing for the sum awarded such sum as appears to the Court proper. It is only in the circumstance that this Court shall have the power to reduce or increase the damages awarded by the Court below.

The locus classicus of the grounds upon which the Appellate Court will interfere in the assessment of damages was enunciated in Flint v. Lovell (1935) 1 KB 354 and has been adopted by this Court. In Mutual Aids Society v. Akerele (1965) 1 All NLR 336, this Court held that it will interfere with the award of damages where the award is based on some wrong principles of law. This view has been repeated in other cases and in Eboh v. Akpotu (1968) 1 All NLR 220. In each of these cases damages were awarded on wrong principles of law. In the instant appeal, as was in Overseas Constructions Ltd. v. Creek Enterprises Ltd. & Anor. (1986) 3 NWLR 407, where a wrong principle of law was applied no damages was awarded. It was therefore there, as here, not the case of increasing a ridiculously low award or reducing an excessive award. It was a case of determining whether there is sufficient evidence on which this Court can make an award, or directing the trial Court to assess the damages. This Court was satisfied that it had all the materials with which it can make an assessment of the damages and proceeded to do so.

There is no doubt that in this case the trial Court applied the wrong principle of law for the assessment of damages with respect to public nuisance. The Court of Appeal did not consider it necessary to make an assessment since in its view the defendant was not liable. Thus for this Court to proceed to make an assessment it must be satisfied that there is sufficient material before it to enable it do so. Otherwise the case has to be remitted to the trial Court to assess damages. What then is the nature of the evidence before the Court in support of the claim for damages

Counsel for the Appellant has submitted that Appellant and his witnesses before the trial Judge gave evidence of the special and peculiar damages as well as general damages suffered as a result of the public nuisance created by the Respondent. Appellant led evidence as to the damage to and loss suffered by him in his business of poultry farming as a result of the public nuisance. He further submitted that Respondent neither gave evidence to the contrary nor did he cross-examine appellant and his witnesses, sufficiently to refute the claims.

Counsel for the respondent, though not disputing the assertions of Counsel for the Appellant, has contended that as a result of the gaps in the evidence of Appellant and his witnesses created by cross-examination, it would be impossible to assess correctly the extent of damages suffered. He submitted that it was clear, appellant in computing the injury suffered, did not take into account the over-head expenses or the cost of sales before formulating the claims in items (c) and (d).

Although the Respondent in paragraphs 6, 7, 8, 9, 10, 11, 12 of his statement of defence joined issues with the Appellant in respect of paragraphs 5, 6, 8, 14, 20 of the statement of claim, the Respondents did not lead any evidence in rebuttal of the evidence of Appellants and his witnesses. It is pertinent to observe that the learned trial Judge found as a fact that Appellant lost the use of a vital portion of the Abbi-Orogun-Kokori-Eku road, due to their being bull-dozed away by the Respondents without providing an alternative means of passing and repassing to the public.

In his assessment of the damages claimed the learned trial Judge observed that,

“There is no evidence of money value of the items a, b, & c contained in the special claims in para 20 of the Amended Statement of Claim before and after the damage was done. Item ‘d’ in the claim is not the kind of damage that the Defendant can reasonably foresee. That the birds are expected to lay eggs cannot be reasonably foreseen. I consider this too remote in view of the authority already referred to. Items e, f and g are not within the contemplated damages that the plaintiff can claim. The damages must be the loss whatsoever that are a natural consequence of the wrongful act of the Defendant. I do not consider the purchase of drugs and medical care to keep the layer alive; or extra cost of transporting feed, or cost of construction of wooden bridge, as the natural consequence of the reconstruction of Abbi-Orogun Kokori- Eku Road. Besides, the fact that N7.00 is claimed for 2,035 layers does not mean that the said layers cost N7.00 each when alive or when dead; nor is the sale of 1000 underweight layers for N3.00 less the expected price an averment of what the layers do cost. They don’t even show what they cost before the damage or what they cost after. The expected eggs of 2,035 birds and 1000 birds is unreasonably foreseeable to fall within the damages contemplated by law. In consequence the plaintiff has failed to prove every single item of his claim. The fact that N7.00 each is claimed for the 2,035 birds, it does not mean nor show that N7.00 is the money value of the birds before or after the nuisance complained of. That fact must be pleaded and the resultant money value after the nuisance must be pleaded. As to claims for damages in (c) and (d) in para 20 of the amended Statement of Claim I think this is too remote a damage that would flow naturally and directly from the defendant’s nuisance. Expected eggs from the birds cannot come within the category of claim recoverable in nuisance.”

It seems clear from the observations of the learned trial Judge that he rejected the claims of the Plaintiff because they were not proved with the requisite degree of certainty. He said,

“…. the plaintiff has failed to prove every single item of his claim. The fact that N7.00 each is claimed for the 2,035 birds, it does not mean nor show that N7.00 each is the money value of the birds before or after the nuisance complained of. That fact must be pleaded and the resultant money value after the nuisance must be pleaded. As to claims for damages in (c) and (d) in para 20 of the amended statement of claim, I think this is too remote a damage that would flow naturally and directly from the defendant’s nuisance. Expected eggs from the birds cannot come within the category of claim recoverable in nuisance.”

The learned trial Judge is right to require that the value of the birds lost as a result of the nuisance should be pleaded. He appears to be applying Moss v. Christchurch RDC (supra) when he expected that the diminution in value resulting from the effects of the nuisance should be pleaded. To that extent he has applied the wrong principle. In public nuisance the issue of the measure of damages is the same as that for torts generally. The damages are whatever loss results to the injured party as a natural consequence of the nuisance. – see Grosvenor Hotel Co. v. Hamilton (1894) 2 QB 836, 840. Hence the entire loss which the Appellant has suffered directly as a result of the nuisance from which the Respondents have been held liable is the total damage for which the Respondent will be responsible. Thus not only the value of the birds, but also the cost of the reasonable but futile attempt to save the birds, the extra costs of transporting feed mash to the birds, the cost of building a wooden bridge are all the direct consequences, and immediately traceable to the nuisance created by the Respondent in destroying the bridges and rendering the highway impassable to ordinary road users. Such loss cannot be regarded as too remote.

Again, the learned trial Judge, erroneously was of the view that the law does not provide for general damages in liability for actions in nuisance. He was also of the view that losses of expected eggs resulting from the nuisance could not be quantified and are speculative. Consequently, they are not a natural consequence of defendant’s wrongful act. In other words, it is his view that prospective losses generally are too remote.

Taking the first consideration, the claim for losses involved in the premature death of the birds is not a claim for a prospective damage. It is indeed a claim for actual damage for the worth of the birds both in terms of their sale, and in their value as layers of eggs. Consequently a Plaintiff is entitled to recover damages for their values and incidental expenses incurred as a result of the nuisance. It seems that the learned trial Judge has applied the foreseeability test formulated in the Overseas Tankship v. Morts Dock & Engineering Co. (The Wagon Mound) No. I) (1961) AC 388 without considering that the test did not apply in all cases.

Causation is still the more relevant test in cases such as Ryland v. Fletcher (1868) LR 3 HL 330 where the foreseeability test is not applicable. It is also significant that in the Overseas Tankship (U.K.) v. Morts Docks Engineering Co. (supra) the Judicial Committee dismissed the action for negligence and remitted the case on the issue of nuisance to the Court below, thus suggesting that the test was not in that case on the facts applicable. There is a noticeable trend as in Overseas Tankship (U K.) v. Morts Docks Engineering Co. (No.2) (1961) 1 AC 370 towards applying the same principles of fault in liability for Negligence and Nuisance. But there are still cases of liability for nuisance where fault is regarded as necessary, although negligence may not be in any event, the foreseeability test is applicable to the issue of culpability and cannot be invoked after culpability has been determined to reject the consequences of culpability. By this I mean, having held that defendants were liable for the nuisance, it follows that they are responsible for the loss suffered by the Plaintiff. The test for establishing this loss cannot be the same for establishing culpability. – See Smith v. Leech Braine (1962) 2 QB 405, 414. In Smith v. Leech Braine (supra), Defendant was held liable for the death by cancer of Plaintiff’s husband. The facts were that Plaintiff’s husband suffered a small burn on the lip having been struck by molten metal. This burn affected a tissue in a pre-malignant condition and developed into a cancer from which death resulted. The defendant was held liable, though he could not have foreseen that the burn would cause cancer. – see also Warren v. Scruttons (1962) J. Llyod’s Rep. 497; Vacwell Engineering Co. v. BDH Chemicals (197])] QB 88. In none of these cases was liability held to be remote on the ground that the injury was neither foreseen nor foreseeable.

Appellant has given evidence of the loss suffered as a result of the nuisance. Respondents, though joining issues with Appellant in his statement of defence have not given any evidence challenging Appellant’s evidence. It seems fairly obvious that the evidence of appellant’s losses in the claim appears to be inconclusive. This is a matter which ought to go back to the learned trial Judge for him to take further evidence to enable him assess the losses recoverable and award damages in accordance with the correct principles.

Accordingly, the Appeal of the appellant is allowed. The judgments of the Court of Appeal and the trial High Court dismissing the claim of the Plaintiff/Appellant are hereby set aside. Judgment is hereby entered for the Plaintiff/Appellant against the Defendant/Respondent. The case is however remitted to the trial Court to take further evidence and assess the damages recoverable in accordance with the principles outlined in this judgment.

Appellant shall be entitled to the costs of this appeal assessed at N300 in this Court, and N250 in the Court of Appeal.

OBASEKI, J.S.C. (Presiding): This appeal in the main raises the issue of the jurisdiction of the Court of Appeal to reverse a finding by the trial court against which there has been no appeal. There is also a subsidiary issue of the correct principle to be followed in the assessment of damages for public nuisance in a claim for damages against the respondent.

In the High Court of Bendel State holden at Orerokpe, the appellant instituted an action by writ claiming “the sum of N176,886.45 (one hundred and seventy six thousand, eight hundred and eighty six Naira, forty-five kobo) being special and general damages peculiar to the plaintiff and suffered by him in his peculiar circumstances as the owner of Peujo-Edaff Poultry farm resulting from nuisance and/or unlawful damage caused by the defendant, in that, during the substantial part of the month of July, 1982, the defendant deliberately, wrongfully and/or negligently damaged and or rendered impassable to vehicular (sic) traffic the Kokori Inland to Oko Idgerhe section of the Kokori Inland-Eku Road, along which the plaintiffs Puejo-Eddaf Poultry Farm aforesaid lies and situate in Okori village, Kokori inland of Agbor Clan…”

Pleadings were ordered, filed, and served, and at the trial the plaintiff; and six witnesses testified at the instance of the plaintiff and three witnesses testified for the defence or at the instance of the defendant. The learned trial Judge, after giving due consideration to the evidence led, held that the plaintiff established his right to bring the action for damages for nuisance but failed to prove the various seven heads of claim for damages. In other words, the respondent was liable for creating a public nuisance but no special damages was proved and no general damages could be awarded. To put it in his own words, ‘the learned trial Judge said:

“I now go to the issue whether the damages complained of by the plaintiff is the one that the type the plaintiff can claim in view of the fact that the defendant’s act amounts to public nuisance. In public nuisance it is established that plaintiff can only succeed if he can prove that he has thereby sustained particular damage over and above other members of the public. Plaintiff said that he had lost his birds in the Puejo-Edaff farm as a result. No evidence that he did not. No evidence that other members of the public there suffered more damages than the plaintiff.

The essence of nuisance is a condition or activity which unduly interferes with use or enjoyment of land. I am satisfied from the evidence that the plaintiffs enjoyment of his property, the Puejo-Edaff Farm, has been interfered with by the acts or omissions of the defendant on the Abbi-Orogun Kokori-Eku Road by destroying the three bridges, the only means of access across the Omuen River to the plaintiffs farms.

If the defendant bulldozed the road under the contract with the Bendel State Government, then it is lawful act. The act is warranted by law as a result of the existing contract with the Bendel State Government. However, if the job being done by the defendant constitutes nuisance, it is no defence that it was executing a legitimate contract. In this case, negligence is not relied on by the plaintiff. His cause of action is nuisance that the three bridges on that portion of the road were removed by the defendant and not replaced nor alternative access created by the defendant which could be motorable and passable by the public and the plaintiff in particular. To this extent, the plaintiff’s right to bring this action is established. See A.G. v. P. Y.A. Quarries Limited (1957) All ER 894 at p. 908 per Lord Denning…….In short, no claims in a, b, c, d, e, f and g are within the contemplation of the law as losses recoverable in an action for nuisance. As to General Damage, it is said in Ratchife v Evans (1892) 2 QB P 524 per Lord Bowen, L. J. at p. 528 that damages of the kind which the law will presume to flow from the wrong complained of is known as General Damages. I cannot presume any damage in this action which is founded on nuisance since in actions for damages to property founded on nuisance the general rule is that the measure of damages is the difference between the money value of his interest after the damage. There appears to be no provision for General Damage.” (Italics mine)

There is no doubt that on the issue of damages, there are a few fatal misstatements of the law by the learned trial Judge.

The plaintiff went on appeal to the Court of Appeal on the issue of damages. In view of the specific finding of liability for public nuisance made by the learned trial Judge against the defendant/respondent, one would have thought that the defendant/respondent would take the issue on appeal to the Court of Appeal. But he did not. His failure to appeal left the plaintiff heavily armed with the 4 weighty findings of fact, made by the learned trial Judge in his favour which read:

“(1) That Abbi-Orogun-Kokori-Eku Road was completely bulldozed in 1982 and that this was as a result of a contract for the reconstruction of the road given to the defendant in January, 1981 by the Government of Bendel State:

(2) That Puejo-Edaff Farm belongs to the plaintiff and it is situated at the material time to this action in a village called Okori village along the road the subject of the contract of reconstruction referred to above:

(3) That by reason of the construction of this road, it became impassable by motor vehicles and plaintiff could not get to his farm.

(4) That Puejo-Edaff farm which is a poultry farm was situated in Okori village on the Kokori Inland/Eku portion of the said road, which the defendant had rendered impassable.”

Even where there is an appeal against the findings of fact, a Court of Appeal acts on the presumption that the decision of the trial court on the facts was right and in order to succeed, the appellant must displace that presumption, Kojo II v. Bonsie (1952/54) 14 WACA 242 at 243. Where there is no appeal, the presumption cannot be displaced or rebutted.

The Court of Appeal, instead of confining itself to the issue of failure to assess, quantify and award damages raised in the grounds of appeal, went out of its proper course to re-open and consider the issue of inadequacy of proof of the respondent’s liability for public nuisance.

A trial court may have committed grave errors in its judgment in a matter in a manner which stirs the informed mind of the appeal court Judges for correction, but it is settled law that if the parties to the matter are satisfied with the judgment, there is nothing the justices of the Court of Appeal can do. The Justices can only maintain studied silence or observe that there was no appeal before them on the point. If one of the parties is aggrieved and decides to appeal on grounds which do not raise the grave errors observed as issues to be debated and determined the Justices are still powerless and hamstrung in tackling the errors. But if the party adversely affected by the errors through careful reading, wisdom and vigilance, spots the errors and takes the matter on appeal on grounds complaining of those errors, it is only then that the Court of Appeal under our law can deal with the issue.

Generally, appeal courts without statutory provision, have no jurisdiction to disturb settled issues not properly brought as well as those not brought before them. The Court of Appeal sought to support its action by relying on dicta of the Supreme Court cited from:

(1) Akihu v. Opaleye & Ors. (1974) 1 All NLR. (Part II) 344

(2) Fatoyinbo v. Williams (1956) 1 FSC. 87 at p. 89 and

(3) Thomas or Watt v. Thomas (1947) AC. 484,487,488.

I find these dicta totally inapplicable and lacking in support for the action of the court in proceeding to re-evaluate evidence and reverse a finding of fact on issues which have not been brought on appeal before it.

The three authorities dealt with issues properly brought before the Appeal Court in an appeal to it. There was in each case an appeal in which those issues were raised. Oblivious of this fact, Ikwechegh, JCA. delivering the lead judgment in the Court of Appeal observed and commented as follows:

“I am aware of the fact that there is no cross-appeal on the part of the respondent in regard to the trial Judge’s finding that the respondent had committed a public nuisance….

But the law as to the rights of an individual to sue and recover damages for injuries arising out of public nuisance does not seem to have been properly dealt with in this case. I have pointed out some of the necessary conditions to be satisfied as laid down in Harper v. Haden & Sons Ltd. (1933) Ch. 298. The test of unreasonableness was not satisfied in Dwyer & Anor. v. Mansfield (1946) 1 All ER 247 where the shop-keeper in selling tomatoes to the public led to queues forming in front of the shop. It was held he had done nothing wrongful which was held to mean nothing “unnecessary or unreasonable”.

It was said in Dwyer & Anor. v. Mansfield that if the defendant had not done anything that was not necessary for the bona fide carrying on of his trade, he could not be liable in any claim for damages more so if he had not taken up more time than was necessary. In the present appeal, it would be seen from the judgment that these question were not at all considered by the trial Judge. All the plaintiff laid to the charge of the defendant in the court below was that for a substantial part of July, 1982 the road was in building and that this caused the injury. It was also said that the defendant bulldozed the road and dismantled a bridge or two bridges. Was it not necessary to bulldoze a road that was being constructed which was to be tarred Was it not necessary to remove an inadequate bridge on this road so as to build a modern one for the use of the public Would road construction work be expected to be completed in only a month These and other tests would show the defendant’s activities on the road in question were wrongful in terms of being unreasonable or necessary…….

These questions that I have dealt with in my foregoing examination of this case constrain me to the view that the conclusion that the respondent committed public nuisance is faulty………

This approach which I have had to the determination of this appeal seems to me to be in consonance with the decision of the Supreme Court in the case of Akibu v. Opaleye & Anor. (1974) 1 All NLR. (Part 11) 344.” (Italics mine)

It is in my view that, contrary to the impression of the learned Justice of the Court of Appeal, the case of Akibu v.

Opaleye & Anor. (supra) affords no support to the approach adopted by the Court of Appeal in the determination of the appeal. Sowemimo, J.S.C. (as he then was) delivering the judgment of the Supreme Court in that case said at p. 246:

“In suit 11C180/67 tried by Kazeem, J. at the Lagos State High Court held at Ikeja, judgment was entered in favour of the plaintiffs who are respondents before us, against the defendant, who is the appellant, in the terms of the writ of summons for declaration of title and injuction. The appellant has appealed to this court being dissatisfied with the judgment of the learned trial Judge delivered on 18th of May, 1973.” (Italics mine)

It is therefore to be observed that the defendant, a party to the case, was dissatisfied with the judgment and he appealed against it to the Supreme Court. Then at page 350, the learned Justice of the Supreme Court (as he then was) observed and said:

“At the hearing of this appeal, learned counsel for appellant applied and was granted leave to file and argue four fresh grounds of appeal in substitution for those originally filed with the notice of appeal. His main complaint was that the learned trial Judge failed to consider the unchallenged evidence before him, stretching from 1926 as pleaded and deposed to by the appellant and his witnesses with regard to the defence of long possession. The complaint is embodied in two grounds of appeal, grounds 3 and 4 which read:

“3. The finding of the learned trial Judge that the plaintiffs were in prior possession of the land is

(a) against the weight of evidence

(b) inconsistent with the plaintiffs’ case when based, as the learned trial Judge did. on Exs. A & B (Eyisha conveyances) of 1958, and 1959, the case of the plaintiffs being that the Eyisha family had sold the land 59 years ago to Cardoso and he thereby came to a wrong decision holding that the defendant interfered with the possession of the plaintiffs (p. 51 11.20)

4. The verdict is against the weight of evidence.’

and at p. 357, the learned Justice of the Supreme Court said in conclusion:

“The appeal therefore succeeds and it is allowed. The judgment of the learned trial Judge (Kazeem, J.) delivered on 18th May, 1973, including the award of costs in favour of the plaintiffs/respondents is hereby set aside.”

It is therefore clear that unlike the instant appeal, Akibu v. Opaleye & Anor. shows that the Supreme Court embarked on an examination of the evidence in an appeal properly filed on grounds complaining of the findings of the learned trial Judge and raising the issue of failure to properly consider the evidence before it. When therefore Sowemimo, JSC. (as he then was) said at p.356:

“Although this court rehears a case on appeal, it does so only on the records, and where it is quite clear evidence has been led in the lower court which establishes a fact, it will make the necessary finding which the lower court failed to make.”

It was in the con of the complaint before the Court in the appeal that he stated the law.

When the judgment of the High court (Akenzua, J.) was delivered on the 27th day of April, 1984, the defendant could have appealed against the finding of liability for, by virtue of Section 222 of the 1979 Constitution of the Federal Republic of Nigeria, he is one of those entitled to exercise the right of appeal to the Court of Apeal granted by Sections 220(1) and 221(1) of the Constitution of the Federal Republic of Nigeria.

The Court of Appeal has no supervisory and reviewing jurisdiction over the High Court apart from hearing appeal brought to it by a party in exercise of his constitutional right of appeal. Being a creature of the constitution, it can only exercise the powers granted by the Constitution and other statutes to it. The judgment of the Court of Appeal on the issue of liability is therefore a nullity.

My learned brother, Karibi- Whyte, JSC. has in his judgment delivered a short while ago the draft of which I had the privilege of reading, dealt exhaustively with the above issue of jurisdiction. I agree with him. He has also dealt with the issue of assessment, quantification and award of damages. I agree with him that in the circumstances of this case, the appeal should be allowed, the judgments of the two courts on the issue of damages set aside and the case remitted to the High Court for assessment of damages with liberty to the parties to call evidence on the issue.

I find that the principles on which damages for public nuisance can be based were wrongly stated by the learned trial Judge. The Court of Appeal correctly stated the principles and these have been elaborated upon by my learned brother, Karibi-Whyte, JSC. in his judgment in this appeal. A private individual has a right of action in respect of a public nuisance if he can prove that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public and that the particular damage is direct and substantial.

Benjamin v. Storr (1874) LR 9 CP. 400, Fritz v. Hobson (1880) 12 Ch. D. 542, Boyce v. Paddington Borough Council (1903) 1 Ch. 109 at 114, Vanderpant v. Mayfair Hotel Co. (1930) I Ch. 18, (1930) 1-2 Ch. 138 at 153.

I agree that the particular damage to be proved is not limited to special damages in the sense of actual pecuniary loss. It may consist of general damages, e.g. inconvenience and delay provided that it is substantial and appreciably greater than any suffered by the general public. The principle applies also where the obstruction to the highway causes harm to the plaintiff’s trade on adjacent premises. See Benjamin v. Storr (supra), Fritz v. Hobson (supra), Iveson v. Moore 1 Ld. Raym 486. 91 ER 1224, Hart v. Basset (1681) 4 Vin. Abr. 519, Winterbottom v. Lord Derby LR. 2 Ex. 316.

I agree with my learned brother, Karibi-Whyte, JSC. that in view of the failure of the learned trial Judge to apply the correct principle of law to the assessment of damages in the instant appeal resulting in the dismissal of the claim for damages and the unconstitutional and erroneous approach adopted by the Court of Appeal to dispose of the appellant’s appeal, the appeal to this Court succeeds. I will and I hereby allow the appeal to this Court. The decision of the Court of Appeal and decision of the High Court together with the orders as to costs are hereby set aside. The erroneous principle on which the learned trial Judge acted did not allow a proper appraisal of the evidence on damages. The proper order to make therefore will be an order remitting this case to the court of trial for retrial on the issue of damages.

I hereby, in concurrence with my learned brother, Karibi-Whyte, JSC. remit this case to the trial court to take further evidence and assess the damages recoverable in accordance with the principles outlined in this judgment.

The appellant is entitled to costs assessed at N300.00 in this Court and N250.00 in the Court of Appeal.

ANIAGOLU, J,S.C.: The judgment just delivered by my learned brother, Karibi-Whyte, JSC, was made available to me in draft. I agree with his reasoning and conclusion. I, too, will allow, and hereby allow, the appeal, set aside the judgment of the Court of Appeal and hereby remit the case back to the High Court for that Court to assess damages in favour of the plaintiff, with liberty for the parties to call whatever evidence they consider necessary for the said assessment of damages by that High court in accordance with the principle and procedure laid down by this Court in Ayodele James v. Mid-Motors Nigeria Co. Ltd. (1978) 11 & 12 SC. 31 at 74;Ellochin (Nigeria) Ltd. v. Victor Ngozi Mbadiwe decided on 10/1/86.

That ordinarily should be the end of my contribution in this judgment were it not that I consider it necessary to re-emphasize my support for the often repeated principle, laid down by this Court in a number of cases, namely, that the Appeal Court is not an avant-garde with powers of review of cases decided at the High Court, like an ombudsman, going about raking up, suo motu, decisions of that Court, and looking for mistakes, supposedly made by that Court, with or without applications made to it by a complainant. Such is not among “the wide powers” given to that Court by Section 16 of the Court of Appeal Act 1976.

The jurisdiction of the Court of Appeal is founded upon an appeal lodged to it by a complainant otherwise called an appellant. The Court of Appeal is not a Court of first instance and even though, it possesses the powers of a Court of first instance when determining an appeal, it only embarks upon that determination when proceedings are initiated by a complaint lodged to it by an appellant. Until it is awakened into action from its sleep by such a complaint, it remains a contented tiger sleeping in its lair.

I agree that, in the instant appeal, the Court of Appeal had no jurisdiction to hold, as it held, that the defendant was not liable in nuisance, there being no appeal lodged to it by any of the parties on that issue. See: Chief Frank Ebba v. Chief Warri Ogodo & Anor. (1984) 4 SC 84 at 122.

The issue of liability in nuisance was not a “real question in controversy between the parties”, such as the determination of which would have evoked the powers of the Court of Appeal under Section 16 of the Act. The efforts of the Court in delving into an elaborate discussion of that question were, with respect, wasted efforts.

I abide by the costs as decreed in the lead judgment of my learned brother, Karibi- Whyte, JSC.

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SC.205/1985