Hong Kong Synthetic Fibre V. Monsuru Ajibawo & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
MUHAMMAD, J.C.A.
The respondents as plaintiffs took out a writ dated 6th day of August 1998 at the Ogun State High Court claiming the sum of (N5,000,000.00k) Five million naira special and general damages against the appellant who being the defendant had allegedly, by the nuisance from the effluents and waste water discharged from its premises, caused economic loss to respondents’ otherwise rich land, vegetation, landscape and stream at Ketebo. Respondents also prayed the lower court for injunction to restrain the appellant by itself, Directors, Officers, Servants and Agents from the committal of further acts of nuisance on respondents’ farmland at Ketebo, Ota in Ogun State.
Pleadings were ordered, filed, exchanged and settled. From their pleadings and evidence, respondents’ case is that appellant, a fabric manufacturing company at Ota, was discharging its effluents and waste water through pipes passed directly across respondents’ farmlands to the place of discharge. It was respondents’ case that the effluents and waste water was more alarming and devastating during periods of peak production in appellant company and rainfall when they caused offensive, obnoxious and unwholesome odour. The substances also turned the Ketebo river black, muddy and unsafe for human and animal consumption at the two periods. Economic crops and aquatic lives on which the respondents depended were devastated and destroyed by the incessant discharge. Exhibits A, B, C, D, E and F are correspondences tendered at trial by the respondents and admitted in evidence.
It is respondents’ further case that appellant company was on some occasions shut down by the Ogun State Environmental Protection Agency as a result of the company’s reckless discharge of effluents and waste water. Inspite of these closures, appellant had continued to discharge the harmful substances on respondent’s farmland causing the latter great financial loss and damage thus the claim per paragraph 38 of respondents’ statement for the reliefs adumbrated earlier in this judgment.
The appellant denied respondents’ claim in its statement of defence. The company’s case is that it had at all events treated the waste water it discharged from its premises and that the water neither directly ran through respondents’ farmlands nor damaged any crop or aquatic life on the said farmland.
Counsel on both sides addressed the trial court which in a considered decision dated 28th February 2002 entered judgment for the respondents against the appellant for the sum of N2,490,000.00 special and general damages for the loss the former suffered from the latter’s act of nuisance. An order of injunction against the appellant and its officers was also decreed by the lower court.
Being dissatisfied with the judgment of the trial court, the appellant has appealed against same on an amended notice containing nine grounds of appeal. Briefs have been filed and exchanged. Parties have adopted and relied on their respective briefs at the hearing of the appeal.
In the appellants’ brief, five issues have been distilled from its nine grounds of appeal for the determination of the appeal. The Issues are:-
“1. Whether the learned trial judge ought not to have declared the respondent’s case incompetent and strike out same for misjoinder of parties and cause of action on the ground that it was wrongly instituted and prosecuted in a representative capacity. Grounds1 and 2.
- Whether the learned trial judge rightly admitted and relied on Exhibit F, instead of conducting a visit to the locus in quo having regard to the circumstances of this case. Grounds 3 and 4.
- Whether the respondent proved, by credible evidence that their farmland (if any) was destroyed by the defendants’ waste water. Grounds 3 and 4.
- from the entire evidence at the trial, whether the respondent was entitled to both the special and the general damages awarded by the learned trial judge. Ground 8.
- Whether the plaintiffs are entitled to the Order of injunction made by the learned trial judge. Ground 9.
The respondents’ similarly submitted five issues for the determination of the appeal. The issues read:-
“i. Whether the respondents’ case was wrongly instituted and prosecuted in a representative capacity having regard to the pleadings and evidence adduced before the trial court.
ii. Whether a visit to the locus in quo is necessary in view of the trial court admission of exhibit F in this case.
iii. Whether the respondents have discharged the onus of proof on the totality of evidence before the trial court.
iv. Whether the trial court was right in awarding general damages in addition to the special damages awarded in this case.
v. Whether the respondents have established their right to an order of injunction as granted by the trial court.”
I prefer to deal with appellant’s set of issues for the determination of the appeal since the issues portray its dissatisfaction with the judgment appealed against and it is on that basis the appeal should ordinarily be determined. It is important to consider the first issue since it questions the competence of the action and jurisdiction of the trial court to determine same. If the court had no jurisdiction and proceeded to determine the action, it had, no matter how diligently conducted, a futile exercise. The fact whether respondents herein had proved their case or not and were rightly awarded the two categories of damages in the absence of the trial court’s jurisdiction would not even arise.
On this all important issue, learned appellant counsel referred to paragraphs 5 and 6 of respondents’ statement of claim and appellant’s denial thereto in paragraph 3 of the statement of defence and contended that the lower court was wrong in its failure at resolving whether respondent’s suit for the tort of nuisance instituted in representative capacity was competent. Since parties had joined issue on the capacity in which respondent instituted the action, failure to pronounce on respondent’s capacity to institute the action, on the authority of Supreme Court’s decisions on Okonkwo & Ors v. Ndinaeze (1997) NWLR (Pt.499) 251 and Adediran v. Interland (1991) 19 NWLR (Pt.24) 155, 2 NSCC 707 @ 722, is fatal and having caused the appellant injustice justifies interference with the trial court’s decision. Learned counsel argued that the respondents could not commence action in tort on behalf of persons who neither had common cause of action nor suffered common injury. The respondents and each and everyone of those they represented in prosecuting the claim must show individual injury they sustained by virtue of the nuisance to be able to obtain the remedy claimed.
In further argument, learned counsel asserted that respondents did not establish the collective entitlement of the Ajibawo family to the farmland affected by the nuisance so as to show the common interest and grievance necessary for the relief they sought of the lower court. The evidence on record, learned appellant counsel argued, is that each member of the family had his separate portion of the land which he carried his or her individual farming. Since the various farms on the Ajibawo family farmland were not jointly owned, individual injuries arising from the same nuisance constituted separate tort actionable at the instance of the person who suffered it. Learned appellant counsel relies further on Ndulue v. Ibezim (2002) 12 NWLR (Pt. 780) 139; Amachree v. Newington (1952) 14 WACA 97 and Kukoyi & Ors v. Ladunni (1976) WACA 582 at 587 and urged us to hold that the instant suit was wrongly constituted, resolve this issue in their favour, strike out the action, allow the appeal and set-aside the lower court’s decision.
Replying to appellant’s argument under the first issue, learned counsel to the respondents submitted that the capacity in which the respondents commenced the instant suit against the appellant had never been in doubt. The endorsement in the writ, paragraphs 5 and 6 of their statement of claim and the testimonies of all the witness who gave that respondent are the accredited representatives and principal members of the Ajibawo family of Isolosi compound. They also brought the action against the appellant on behalf and with the consent of all the other members of the Ajibawo family. The general denial averred to in paragraph 3 of appellant’s statement of defence does not remove this fact. From their pleadings and evidence, respondents have shown that they have common interest, common grievance and the reliefs they claimed were beneficial to all of them. The respondents and all the members of the Ajibawo family suffered a common injury from appellants and all the members of the Ajibawo family suffered a common injury from appellant’s nuisance which devastated respondents’ farmlands and all the economic trees the latter communally enjoyed. Learned counsel urged that the testimonies of particularly PW1, PW2 and PW3 which tend to suggest individual fanning and separate injury be discountenanced. Their testimonies are contrary to the pleadings of the respondents and must go to no issue. Counsel referred to the cases of David Ituama v. Friday Jackson Akpe-Ime (2000) FWLR (Pt.16) 2809 at 2829; (2000) 12 NWLR (Pt. 680) 156, (2001) 11 NWLR (Pt.728) 659 Inspector Kayode v. Alhaji J.A.O. (2001) FWLR (Pt.57) 975 at 987 – 988 and SFDC Nig. Ltd v Chief Joel Amaro & Ors (2001) FWLR (Pt.50) 1815 and 1848 ;(2000) 10 NWLR (Pt.675) 248 in support of his submissions.
Learned counsel further contended that the two cases heavily relied upon by the appellants counsel, Okonwko Ukatta & Ors v. James Ndinaeze (1997) 4 NWLR (Pt.499) 251 at 275 and Adeniran v. Inlerland (1991) 22 NSCC (Pt.2) 707 at 722; (1991) 9 NWLR (Pt.214) 155 are distinguishable from the facts of the instant case. The decisions on these cases cannot rule this matter. Instead, decisions which facilitate the commencement of action in representative capacity to reduce cost and save time such as Chief Engr. R.A. Obioha & Ors v. Mil Admin. Imo State (1998) 10 NWLR (Pt. 569) 205 at 219 and Lawrence Elendu & Ors v. Felix Ekwoaba & Ors (1998) 12 NWLR (Pt.578) 320 at 331-33, counsel commended, should inform the decision in the instant case. Learned counsel re-emphasized that since the persons represented have common interest and grievance there was no misjoinder of parties and/or causes of action to render the suit incompetent. Non-joinder or misjoinder of parties in a suit is never fatal to proceedings counsel cited Cross River State Newspapers Corporation v. Mr. J.I. Oni & Ors (1995) 1 NWLR (Pt.371) 270 at 291, he prays that this issue be resolved against the appellant.
The dominant question raised by this appeal is on the mis-joinder of parties and causes of action in the instant suit. Appellant’s overriding complaint is that the lower court had no jurisdiction to proceed on an action commenced in utter breach of Order 11 Rule 8 of its Rules of Practice which provides:-
“Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the court, be authorized by the other persons interested to sue or defend in such suit for the benefit of or on behalf of all parties so interested.”
Learned appellant counsel is right in his submission that by the above rule of court as interpreted in some judicial authorities respondents’ action in representative capacity for nuisance from appellant’s premises is properly constituted only where from the pleadings and evidence respondents are shown to have suffered common injury and the relief being claimed is of common benefit to the plaintiffs as well as those they represent in the action. The reliance of learned appellants’ counsel on the Supreme Court’s decisions in Okonkwo Ukata v. Ndinaeze supra and Adediran v. Interland supra is apt and justified. In Okonkwo v. Ukatta supra, the Supreme Court while considering similar facts and applicable rules of court as in the instant case stated as follows:-
“The defendants/respondents and those they represent (Alugburu and Nkurume families) are not persons having the same interest in one suit within the meaning of Order 4 Rule 3 of the said High Court Rules. The plaintiffs are therefore not entitled to bring the representative action. See the cases of Amachree & Ors v. Newington (1952) 14 WACA 97 and Market & Co Ltd v. Knightsteam Co. Ltd (1910) 2 KB 1021. Order 4 Rule 3 which is in part material with Order 4 Rule 3 former Supreme Court (Civil Procedure) Rules 1948; permits joinder of plaintiffs where there is common ground of action but not joinder of causes of action.”
In the instant case, the respondents had as plaintiffs averred in paragraphs 5-7 of their statement of claim as follows:-
“5. The plaintiffs are the accredited representatives of and principal members of the Ajibawo family of Isolosi compound; Osi quaners Ota;
- The plaintiffs bring this action against the defendant for and on behalf of the Ajibawo family of Ota;
- The plaintiffs state that the Ajibawo family is and was at all times the occupier and owner the farmland at Ketebo consisting of various cash and food crops which serve as their means of livelihood.”
Appellant joined issue with the respondents as to the ownership of the land affected by appellant’s alleged nuisance and the capacity in which the respondents commenced action against the appellant in paragraphs 1 and 3 of the latter’s statement of defence.
PW1 in testifying in proof of respondents case see, page 45 – 51, inter alia stated as follows:-
” … I am a member of Ajibawo family. I am a principal member/representative of the family …. Each member has been permitted certain portions to cultivate. Children and grandchildren are only permitted to them … I am a successful tailor. I use the proceeds from tailoring for C agriculture. I employ labourers to cultivate and plant for me ….. ”
PW2 in his testimony stated that the action was brought on behalf of the Ajibawo who owns the land affected by appellant’s nuisance and that the land had not been partitioned. PW3 was employed by Raimi Ajibawo for who he cultivated a portion of the land during the latter’s lifetime. Raimi Ajibawo paid PW2 for his labour. PW4 is late Raimi Ajibawo’s son. He stated that the Ajibawo family consisted of 2 Idi Igis: the Langbo side, which he comes from, and the Omodele side. The farmland, he further stated, had not been partitioned.
From the forgoing pleadings and testimonies, it is reasonable to infer that although title in the land affected by the nuisance from appellant’s premises had continued to be communal, individual members of the family had cultivated parcels of the same land allotted to them. The testimony of PW1 and PW2 in particular clearly suggest that PW1 and late Raimi Ajibawo, not withstanding the fact that the ownership of the entire farmlands was vested in the Ajibawo family, the two had specific portions of the farmlands, which they personally cultivated and controlled.
In the light of all these, it cannot be seriously contended that the alleged injury caused by the discharge of effluents and untreated water by the appellant is a common ground of action within the contemplation of Order 11 rule 8 of the lower court’s Rules of Procedure which allows a restricted liberty of joining plaintiffs with separate causes of action. In Adediran v. Interland supra, the Supreme Court had held in respect of action for nuisance commended on representative capacity thus:-
“For an action to lie in a representative capacity;
i. there must be common interest;
ii. a common grievance
iii. and the relief claimed must be beneficial to all. The rule applies only where the representatives as well as those represented have the same interest in the action before the court. In the law relating to nuisance, all those who claimed to have been injured by the nuisance complained of must show substantial injury to them individually arising from the nuisance. The existence of the nuisance parse does not provide a remedy”. (Italics for emphasis)
In the case at hand, learned appellant counsel is right that respondents’ action for nuisance brought in representative capacity is incompetent because the representatives and those they represented do not share “common interest”, “common grievance” and the reliefs they claim cannot be said to benefit all of them equally. They cannot maintain an action that falls in breach of Order 11 Rule 8 of the trial court’s adjectival law. It is for this reason that the first issue is resolved in favour of the appellant. This would have ordinary determined the appeal as well. In case however, I am wrong in the resolution of the issue and deciding that respondents’ action is incompetent, let me address the other issues raised in the appeal. Reproduced hereunder are the arguments in respect of these other issues.
Under the 2nd issue, learned appellant’s counsel argued that exhibit F, a video cassette produced by PW5 is a copy of the original. The original had been given to Raimi Ajibawo by PW5 who so deposed at page 58 of the record. Appellant counsel’s objection that exhibit F could not be admitted in evidence without the proper foundation in place was wrongly overruled by the lower court. Counsel submitted that but for exhibit F the trial court would have had nothing to rely on and find for the respondents. The necessity of the court’s visit to the locus in quo by virtue of Section 77 of the Evidence Act as gleaned through judicial decision including Oragbo v. Una (2002) 9 – 10 SC and Obi v. Mbionwu (2002) 6 SC (Pt.11) 73 at 90 would have persisted. Without the visit to the locus in quo and the non-availability of exhibit F, parties could not be said to have had the full opportunity of putting their case across to the court. This lapse constitutes such a miscarriage of justice on the basis of which, submits learned appellant’s counsel, this issue and the appeal should succeed as well.
For the 3rd issue, learned counsel, submitted that in civil cases the plaintiff’s success depends upon his pleadings and the evidence in proof of same. Section 135(1) and (2) and Section 136 of the Evidence Act, learned counsel argued, had placed the burden of proof of their case on the respondents. Counsel also relied on Eseigbe v. Agholor (1993) 9 NWLR (Pt.316) 128 at 141. By the law and the decided authority, respondents had the burden of proving that the waste water emanating from appellant’s premises was not treated and was of such nature to cause the damage alleged. Learned counsel contended that respondents did not establish a prima facie case that appellants’ waste water was untreated and that it was the cause of the damage to their farmland and crops. By virtue of section 57(1) of the Evidence Act only scientific evidence would suffice and PW6’s testimony was not only incredible but fell short of the special evidence required. PW6 never produce a report and the trial court, submitted learned counsel, should have presumed that had such a report been produced it would have been against respondent’s interest. Counsel referred to Onwujuba v. Obienu (1991) 4 NWLR (Pt.183) 16 and Shell v.Tiebo VII (1996) 4 NWLR (Pt.445) 657. The court’s failure to so hold had placed undue burden on the appellant of proving that the waste water discharged from its premises was treated.
Learned counsel further argued that even if it were conceded that respondents had established that the waste water from appellant’s premises had not been treated, respondents who had claimed for a total of thirty nine acres of farmland and crops thereon by exhibit C, proved owing only ten acres. The finding of the court at page 123 of the record of appeal is, submitted learned counsel, manifestly wrong for the simple reason that the respondents had only proved entitlement for a lesser acreage than what they pleaded. Parties, it was submitted, must be bound by their pleadings as held in George & Ors v. Dominion Flour Mills Ltd (1963) NLR 71; (1963) 1 SCNLR 117; Shell Pet. Dev. Co. (Nig.) Ltd. v. Amaro (2000) 10 NWLR (Pt.679) 248 @ 270 and Ogbobu v. Ogbuegbu (2003) 4 SC (pt.!) 69 at 81. Counsel contended that the trial judge’s comments accepting respondents explanation that the damaged crops were inter-planted is not feasible as the respondents never pleaded those facts. Any evidence of unpleaded facts must be discountenanced. What comes through from the pleadings and evidence before the court at the end of trial is that credible evidence was lacking to support the findings made by the trial court as to the cause and extent of damage which affected the respondents. The lapse justifies the resolution of this issue and the appeal in appellant’s favour. Learned counsel relied on Thompson v. Arowolo (2003) 4 SC (Pt.2) 108 at 131; (2003) 7 NWLR (Pt.818) 163 and Awara v. Alalibo (2002) 12 SC (Pt.1) 77 at 135; (2000) 18 NWLR (Pt.799) 484 and so urged.
The contention of learned appellant’s counsel pursuant to their 4th issue is that both the special and general damages awarded the respondents cannot be sustained by the evidence available to the lower court, special damages must be specifically pleaded and strictly proved by the claimant. Where a plaintiff’s claim for special damages is based on a precise calculation, he must give the defendant access to those facts which made the calculation possible. Respondents, learned counsel argument did not lead credible evidence showing that the special damages they claimed was capable of precise calculation as required by law. Such an unjustified award should be set aside. Counsel relied on Dumez (Nig.) Ltd. v. Ogboli (1972) All NLR 241; Nzeribe v. Dave Co. Ltd (1994) 8 NWLR (Pt.367) 124.
As to general damages, learned counsel contended that the award of 80,000 naira to the respondents should not be allowed to stand since the award was also based on wrong principles. He argued that the quantum of the loss incurred by the respondents have remained unascertainable thereby making award of general damages untenable. The law further frowns at double compensation. Both categories of compensation which were not merited by the respondents should be set aside on the further authorities of U.B.N. Ltd v. Odusote Bookstores Ltd (1995) 9 NWLR (Pt.421) 558 and Ezeani v. Ejidike (1964) 1 ANLR 402 and ONAGA v. Micho & Co. (1961) 2 SCNLR 101.
For appellants 5′” issue, learned counsel submitted that the respondents who did not establish their case had no right to protect by the perpetual injunction they acquired from the lower court. Counsel argued that the grant be set aside. He relied on Biyo v. Aku (1996) 1 NWLR (Pt. 422) 1 and A.G., Anambra State v. Okafor (1992) 2 NWLR (Pt.224) 396.
On the whole, learned counsel argued that the appeal be allowed. In replying to arguments under the 2nd issue, learned respondents’ counsel contended that PW5 whose record exhibit F had fully deposed to facts on what led to and the recording of the video cassette. These facts had been alluded to in paragraph 37 of respondents’ statement of claim. The trial court rightly ruled on the relevance of the cassette which more than anything made the cassette admissible.
Counsel relied on Dr. Torti Ufereukpobi v. Chief Chris Ukpabi & 2 Ors (2000) FWLR (Pt.29) 281 and Joseph Agbastonavo & 2 Ors v. Apato Eduyegbe (1999) 2 SCNJ 94 at 103. Learned respondents’ counsel submitted that exhibit F qualified as secondary evidence under section 97(d) of the Evidence Act. The impossibility of physically transporting respondents damaged farmlands to the court made the admittance of exhibit F in evidence necessary. Such a decision from the principles enunciated in Okonkwo Okonji v. George Njokanma (1999) 2 SCNJ 259 at 289 and (1999) 14 NWLR (Pt.638); Obanor v. Obanor (1976) NSCC (Vol. II) 69 at 71, counsel contended, should not be interfered with.
Under the 3rd issue, Learned counsel relied on the decision in Obanor v. Obanor supra and submitted that apart from the testimonies of the other witnesses which showed the amount of damages on respondents’ farmlands, that of PW6 decidedly gave the specific explanation as to the cause of the damages: the discharge of the substances from appellant’s premises. These testimonies, which are in terms of the pleadings of the respondent, have remained unchallenged and uncontroverted. The lower court, counsel contended, was right to have accepted and relied on the evidence to find for the respondents. Appellant’s quarrel with the acreage claimed by the respondents as evidenced to show that there was inter planting on the land, which made the acreage larger than it seemed. Respondents, after all, were only required to prove facts and not the evidence by which the facts were to be proved. Appellant’s grouse in this regard should, urged learned counsel, by virtue of the decision in MSC Ezemba v. S.O Ibeneme (2004) 10 MJSC 54 at 71; (2004) 14 NWLR (Pt.894) 617, be ignored. Learned counsel finally submitted that if the evidence of both sides to this action is put on the imaginary scale, that of the respondents weighs more and thus the decision in their favour. The lower court’s decision having been reached in this way cannot be tempered with. Learned counsel relied on Mobil Oil Nig. Ltd v. National Oil & Chemical Marketing Co. Ltd (2002) FWLR (Pt.24) 139 at 140 – 143 and asserted that the issue favours the respondents and should be so resolved. They urge that we dismiss the appeal.
The question to answer is: did the respondents prove the case they averred to and in respect of which the lower court found and granted them the reliefs thereto? I answer this in the negative.
In their pleadings, respondents averred that the suit was commenced at the instance of the entire members of the Ajibawo family. In the same statement of claim however, see paragraph 9 thereof, it was pleaded that individual members of the Ajibawo family had carried out regular farming activities. In proof of these seemingly contradiction averments, the respondents called five witnesses PW1, PW2 and PW3 in particular stated in tandem with the averments in paragraph 9 of the statement of claim that some members cultivated and controlled their individual farms on the family land. Reference had already been made to these testimonies earlier in this judgment.
Respondents who at one breadth averred theirs was an action for and on behalf of all members of the Ajibawo family and in respect of the communally held farmlands affected by appellants act of nuisance also averred that individual members had cultivated their separate farms on the communally held farmlands. A plaintiff in an action for nuisance, nor in any action cannot approbate and reprobate as to their nature of the claim and the relief he seeks from the court. The essence of pleadings is to give one’s adversary the clear and true picture of the case he is to meet at trial. In the instant case, the respondents who had pleaded that the action was in representative capacity was in no position to detract from this initial averments and prove separate injuries of the members of the Ajibawo family they subsequently pleaded. Respondents must be consistent in their pleadings. Order 25 Rule 11 of the lower court’s procedural Rules provides thus:-
“No pleadings, not being a petition or summons, shall except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”
See also Obot v. CBN (1993) 8 NWLR (Pt.310) 140 at 159-160 and Akeredolu v. Akinremi (1989) 3 NWLR (Pt.108) 164 at 172. In the result, respondents who had failed to establish the initial averment in their pleadings that the farmlands were held in common, that the injury caused the land by appellant’s nuisance had commonly affected all the members of Ajibawo family and that the reliefs commonly benefit all rather than individual members, cannot be said to have proved their case to be entitled to the reliefs they acquired. The principle is that a plaintiff’s action fails where he fails to prove the capacity made out in the writ of summons and statement of claim. See Duke v. Henshaw (1940) WACA 200 and Disu v. Adele (1959) LLR 131.
Having decided that respondents had not made out their case and so not entitled to the reliefs they received, it is academic to consider whether or not the award of damages and injunction by the trial court had been in accordance with accepted principles. Needless to say, these awards being unmerited are perverse. Appellant’s 2, 3, 4 and 5″ issues are all resolved against the respondents. Respondents’ action that has not been proved is dismissed. The appeal is accordingly allowed.
I assess the cost of this appeal at N30,000 in favour of the appellant.
Other Citations: (2008)LCN/2662(CA)
