Mr. Bayo Ayadi & Ors V. Mobil Producing Nigeria Unlimited (2016)

LawGlobal-Hub Lead Judgment Report

IBRAHIM SHATA BDLIYA, J.C.A. 

By an Amended Statement of claim filed on the 5th of September 2005, the appellants (as plaintiffs) claimed against the respondent (then defendant) the sum of Forty-four million six hundred and ninety six thousand naira only (N44,696,000.00) being special and general damages caused to them by the respondent’s oil spill of February-March 1998 while carrying out their fishing activities. At the trial, the appellants called four (4) witnesses and tendered documents which were admitted as Exhibits ?A-H?. The respondent called six (6) witnesses and tendered documents which were admitted as Exhibits ?J and K”. Learned counsel to the parties filed written addresses which were accordingly adopted. The learned trial Judge of the Federal High Court, Kaduna Division, (the lower Court) delivered his judgment on the 24th of April, 2012, wherein the claims of the appellants were dismissed in its entirety. Aggrieved by the decision of the lower Court, the appellants filed Notice and grounds of appeal on the 20th of July 2012 challenging the decision of the lower Court.

In accordance

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with Rules of Court, 2011, the appellants filed brief of argument on the 26th of May, 2015, wherein three (3) issues were distilled out of the grounds of appeal on page 4 thereof. The respondent filed brief of argument on 29th of February 2016, with leave of Court. The respondent compressed the 4 issues contained in the appellants’ brief of argument into one issue on page 3 of the brief of argument. The appellants filed a Reply brief which was deemed filed on 1st of March 2016.
The 3 issues contained on page 4 of the appellants’ brief of argument which the respondent compressed into one issue, are these:
(a) Whether the learned trial Judge erred in law when he held that PW2 and PW4 are not expert witnesses (GROUND 3)
(b) Whether the learned trial Judge misdirected himself when he held that the appellants who raised the doctrine of res ipsa loquitor still had the burden of proving negligence (GROUND TWO)
(c) Whether the learned trial Judge erred in law when he held that the appellants as plaintiffs did not discharge the burden of proof (GROUNDS ONE AND FOUR).

RESOLUTION OF ISSUES
Issues 1, 2 and 3 are hereunder resolved

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seriatim.

ISSUE 1
Whether the learned trial Judge erred in law when he held that PW2 and PW4 are not expert witnesses? On this Ishola Esq., of learned counsel to the appellants referred to Section 68 of the Evidence Act, and submitted that where an opinion on any issue/matter is required from a person specialized in that thing, such opinion is admissible under Section 68 of the Evidence. That such opinion is admissible if it is from a person who has special knowledge, training or experience in the matter in question. That such person is referred to as an expert. The cases of Azu v. The State (1993) 7 SCNJ P. 151 and Seismograph Services Ltd v. Onokpasa (1972) 4 SC 110 @ 112 cited and relied on to buttress the submissions supra. Counsel pointed out that it is necessary to ascertain if a person whose opinion is required is an expert; the issue on which the opinion is required; and also whether the person is an expert on the point in issues or not.

?Learned counsel further adumbrated that the case of the appellants was that the respondent’s Oil Spill caused damages to their fishing business and equipment entitling them to damages. That in order to

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prove their case the opinion of a person specialized in oil spill and the damage it could cause are relevant. That PW2 and PW4 testified expressing their opinion on the issue, as well as tendering Exhibits F and H which the learned trial Judge of the lower Court did not rely on because he held that they were not experts without giving reasons for such decision. That the learned trial Judge was wrong in not relying on the evidence and the documents prepared by PW2 and PW4 without giving reasons for doing so which is contrary to the decision of the Supreme Court in the case ofAgbanielo v. UBN (2000) 4 SC (Pt. 1) P. 233 @ 239.
?
It has been submitted that the learned trial Judge ought to have accepted and relied on the evidence of PW4 as evidence of an expert because of his qualification, training and various previous works and engagements in the relevant field or business involving environmental activities, Oil spillage and pollutions in coastal communities over the years. Learned counsel referred to and listed various works and engagements by PW4 in the field of environmental assessment in oil spillage, pollution in the coastal areas testing the presence of

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crude oil and its impact in the Aquatic Environment. That in view of the foregoing, PW4 is an expert whose evidence could have assisted the lower Court in arriving at a just decision, which the learned trial Judge rejected without proffering reasons.

As to PW2, it was submitted that the purpose of his testimony was to assess the value of the appellants’ properties (i.e, outboard engines, fishes and nets) which were damaged by the Oil Spill. That the resolution of this issue would have assisted the learned Judge of the lower Court in assessing the value of the special damages claimed by the appellants. Counsel referred to the Dictionary meaning of a valuer, which PW2 was, having obtained the necessary qualification from the University of London and being a member of the Institute of Valuers in Nigeria and the United Kingdom. That he has been carrying out valuing from 1966 to the time of his testimony. That when cross-examined, he said he qualified to value chattels and machines. Counsel submitted that with the foregoing qualifications and experience, PW2 qualified as an expert contrary to the opinion held by the learned trial Judge of the lower Court.

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Counsel did urge the Court to hold that PW2 and PW4 are experts whose evidence are admissible under Section 68 of the Evidence Act. That Exhibits “F” and “H” are reports prepared and made by experts, contrary to the decision of the learned trial Judge of the lower Court. That the erroneous decision of the learned trial Judge on the admissibility of the evidence of PW2, PW4, and Exhibits “F” and “H” lead to the dismissal of the appellants’ case, which occasioned a miscarriage of justice. The cases of Asari v. FRN (2007) 5- 6 SC 150 and APGA v. Umeh (2011) 2-3 SC (Pt. 1) P. 139 cited and relied on to buttress the submissions supra. Counsel urged this Court to hold that PW2 and PW4 are experts, and in consequence set aside the holding of the learned trial Judge that they were not.

Ezediaro Esq., who settled the respondent’s brief of argument, adumbrated that in determining whether PW2 and PW4 are expert, it is pertinent to find out the intendment of the provisions of Section 68 of the Evidence Act. That it is also necessary to know the nature of the inquiry being conducted by the lower Court and whether expert opinion was necessary or not. Counsel submitted

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that Section 68 of the Evidence Act provides for how a Judge is to consider a person as an expert whose opinion may be helpful in the determination of a specific issue or matter by the Court in an area regarding special knowledge or skill , by a person who is called an “expert”. That to qualify as an expert, a person must be specially knowledgeable, skilled and having experience in that particular issue or under inquiry by the Court. That whether a person is an expert or not, is for the Judge to decide on the evidence before him. The case of Oko Agwu Azu v. The State (1993) 6 NWLR (Pt. 299) P. 303 @ 311 cited and relied on by counsel. That the issue in contention between the appellants and the respondent at the lower Court is of a technical nature requiring the evidence of specially qualified persons in the relevant area or subject – matter of the dispute. The case of Seismograph Service, Ltd v. Onokpasa (1992) NSCC P. 231 @ 235 cited in aid.

Counsel cited and relied on the cases of Ogiale v. SPDC Nig. Ltd (1997) 1 NWLR (Pt. 480) P. 148 @ 165 and Seisamograph v. Ogbeni (1976) 1 NMLR P. 290 @ 299 wherein

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an expert has been defined, and what qualifies a person to be an expert under the repealed S.7(1) and Section 56 (1)(2) of the Evidence Act, 1990, the provisions of which are not dissimilar to Section 68 of the Evidence Act, 2011. Counsel urged this Court to hold that PW2 and PW4 are not experts having regard to the evidence before the lower Court. That it is not correct to say that the learned trial Judge did not give reason why he held that PW2 and PW4 did not qualify as experts as then the provisions of Section 68 of the Evidence Act. Counsel contended that the learned trial Judge gave reasons in his ruling on the issue within the intendment of the provisions of Section 68 of the Evidence Act.

On who qualifies as an expert, learned counsel submitted that the Court has to be satisfied as to the credentials of a person before he could be regarded as an expert. The case of Ude v. Osuji (1990) 5 NWLR (Pt. 151) P. 488 2 513 wherein the case of Ado Kufar Wambai v. Kano N.A (1965) NMLR P. 15 @ 17 was relied on has been cited to reinforce the submissions supra. As to whether the learned trial Judge gave reasons for rejecting PW2 and PW3 as experts, counsel

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submitted that, if a decision is right in law, it does not matter whatever reason was given or no reason was given at all. The case of Integrated Timber & Plywood Products Ltd v. UBN Plc (2006) 12 NWLR (Pt. 995) P. 483 @ 504 relied on to reinforce the submissions supra. In conclusion, learned counsel did urge the Court not to interfere with the decision of the learned trial Judge that the PW2 and PW4 were not experts when they gave evidence before the lower Court. Counsel did urge that issue 1 be resolved against the appellants.

On page 647 lines 21 to 25 to page 648 lines 1-6 of the printed record of appeal, the learned trial Judge of the lower Court held thus:
“In the case of Ojo v. Gharoro (2006) 10 NWLR (Pt 987) 173 at 187-188, it was held that in a complicated and highly professional case where the plaintiffs as in the instant case also relies on the doctrine of res ipsa loquitor, it is expected that the plaintiffs would call expert evidence. Neither PW2, the valuer who produced Exhibit F nor PW4 who testified that he saw the rusted pipes being removed and replaced are experts. Thus, Exhibits F and H are not report prepared by expert

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witnesses?.

Was the learned trial Judge right when he found and held that PW2 and PW4 were not experts, therefore Exhibits “F” and “H” prepared by them were not prepared by experts? The relevant provisions of the Evidence Act, on who is an expert on a particular issue is Section 68, which provides that:
“68. When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible.
(2) Persons so specially skilled as mentioned in Subsection (1) of this Section are called experts?.
?By the provisions of Section 68(1) of the Evidence Act, 2011, when the Court has to form an opinion upon a point of science, the opinions upon that point of persons specially skilled in such science is admissible, and such persons so specially skilled are called “experts”. The Supreme Court gave an interpretation of this provision when it held that a

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person is an expert on such point of science when there is evidence that:
(a) He has special knowledge, training or experience in the matter in question. See Azu v. The State (1993) LPELR 689 (SC) @ Pg 11 para C-F / (1993) 7 SCNJ 151, or
(b) He has made a special study of the subject or acquired a special experience on the subject matter. See Seismograph Services Ltd v. Onokpasa (l972) 4 SC 110 @ 112.
The import of the above authorities is that where a person has a special training in or made a special study of or acquired special experience in the matter in question, he is an expert on the matter. Possession of one criterion; be it training or special study, knowledge or experience; by a person, will suffice to qualify the person as an expert on such matter. In Azu v. The State (1993) 6 NWLR (Pt. 299) P. 303 @ 311, the Court stated what qualifies a person to be an expert thus:
“to qualify as an expert under the Evidence Act, the witness must be specially skilled in the field in which he is giving evidence and whether or not a witness can be regarded as an expert is a question for the Judge to decide but the decision must be based on

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legal evidence before him.”
This Court, in the case of Ogiale v. Shell Petroleum Dev. Co. of Nigeria Ltd (1997) 1 NWLR (Pt.480) 148 @ 165; Services Ltd v. Benedict Etedjare Onokpaja when dealing with who is an expert, and the need for opinions of an expert witness under Section 57(1) and (2) of the Evidence Act, 1990 (repealed) which are not dissimilar to the provisions of Section 68 of the Evidence Act, 2011, per Akintan J.C.A (as he then was) said:
“An expert is definitely a person specially skilled in a particular field of study enumerated in Section 57(1) of the Evidence Act 1990. The correct test of the relevance of witness’s opinion as that of an expert is whether he is specially skilled on the particular field in question. See Seismograph Services Limited V. Onokpasa (1972) 1 All NLR (Pt. 1) 343”.

In the consideration of whether to treat a person called as a witness to testify on a specific issue as an expert witness, the Judge or the Court has to be satisfied as to his qualification or credentials to be so treated. This Court in Ude v. Osuji (1990) 5 NWLR (Pt. 151) P. 488 @ 513 had this to say:
“For as stated by Hurley C.J in Ado

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Kofar Wambai v. Kano N.A. (1965) NMLR 15 @ 17, In certain cases evidence of opinion of an expert is relevant. But he must be called as a witness and must state his qualifications and satisfy that Court that he is an expert on the subject in which he gave his opinion. And he must state clearly the reasons for his opinion?.
It must be pointed out at this juncture that it is entirely the duty of a trial Judge to determine whether or not a particular witness is to be regarded as an expert as provided by the provisions of Section 68 of the Evidence Act 2011. Furthermore, the Court or the trial Judge, as the case may be, has to be satisfied as to the credentials of a witness before he can be regarded as an expert. See Ude v. Osuji (1990) 5 NWLR (Pt. 181) p. 488 @ 513. This means that, in the determination of whether a witness can be regarded as an expert, the trial Judge or the Court is to give due consideration to his qualification and experience of the witness must be related to the inquiry or what the evidence of the witness is intended to prove or establish. In order to resolve whether the learned trial Judge was right or not is regarding PW2 and PW4

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as not expert witnesses, their credentials is to be examined, that is, their qualification, experience and other related matter vis-a-vis the inquiry being conducted by the Court. For as pointed out in the case of Ojo v. Gbaroro (2006) 10 NWLR (Pt. 987) P. 173 @ 187, in complicated and highly professional cases, where the doctrine of res ipsa loquitor is relied on by a party to prove his case, the evidence of an expert would be necessary to assist the Court to determine the dispute justly and fairly.

In determining whether PW2 and PW4 could be regarded as expert witnesses or not, an examination of their credentials, that is, qualification, experience and what they have or had done prior to their testimony at the lower Court, is pertinent. PW2, Chief Olu Adama, gave evidence at the lower Court which has been recorded on pages 544 to 547 of the printed record of appeal. The material and relevant portion of his evidence are on pages 544 – 545 which are as follows:
“I am a chartered valuer and I hold Bsc Estate Management from University of London and I am a fellow member of institutes of Valuer United Kingdom and also a fellow member of the Institute of

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Valuers in Nigeria I was called in June 1960 and I started working as a Valuer since 1966. I worked with N/Nig. Housing Corporation in lbadan; 1961 – 67; Private Co. of URVAN Properties 1967 – 69. I went to England and worked with City of Shepfiled in 1970 – 75. Since January 1972 I have been on my own till date.?

When cross-examined, he said as follows as recorded on pages 546 – 547 of the record of appeal.
“Yes I am a Chartered Valuer and I am a Fellow of Institute of Valuers in U. K. and Nigeria. I am qualified to value all interest inlanded properties and chattels. I am qualified to value things that are not within Estate Management. Before this I had cause to value oil spillages. I work for Fishermen in Ilaje Local Government where Chevron is operating. I have not dealt with valuation for oil spillage in the past but for other damages?.

On page 547 of the record of appeal the witness further said thus under cross-examination :
“I am qualified to value machines not to repair it. I am not qualified to give expert opinion on mechanical aspects of the out boat engines but my assessment of the damage was as a result of my

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physical examinations as some engines looked more roasted than others probably because of the time laps”.
?
The purpose for which PW2 gave evidence was to assess the value of the appellants? properties (the outboard engines, fishes and nets) damaged by the oil spillage. The purpose of the evidence of the witness was also to assist the learned trial Judge in evaluating the special damages claimed by the appellants. A valuer is a person who evaluates something to ascertain its worth. The witness testified that he was a qualified chartered valuer having obtain Bachelor of Science in Estate Management from University of London. He also said he was a fellow member of the Institute of Valuers in Nigeria and the United Kingdom. That he has been in valuing from 1966 to the time of his testifying at the lower Court. He said he was qualified to value chattels and machines. In view of the foregoing I am of the firm view that PW2 having obtained Bachelor Degree in Estate Management, being a Fellow of the Institute of Valuers in Nigeria and United Kingdom and being a chartered valuer in chattels and machines qualified him to be an expert within the provisions of

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Section 68 Evidence Act, 2011.

PW4, Sunday Sylvester Orhier testified at the trial before the lower Court. His testimony has been record on pages 558 to 565 of the printed record of appeal. On pages 558 to 559, his evidence has been recorded thus:
“I am an environmentalist. I hold a Diploma in Forestry; Post Graduate Diploma in Wild Life Management from college of wild Life Management Tanzania. I have specialist courses in environmental Forestry from U.K; by Diversity Management from Smith Sonia Institute U.S.A. I also have specialist training in Environmental Impact Assessment techniques from CASSAD Ibadan. Since I left college; I have been working with environment all my life. In 1971, I joined Forestry Research Institute of Nigeria as a Research fellow and worked in different ecological zones in Nigeria where researching in various plants and animal species, soil science and Forest community Development. In 1980 I was in Tanzania for 2 years. In 1982 I became pioneer staff of wild Life research and training School in Kanji, Niger State till 1989 when I voluntarily retired and joined Nigerian conservation Foundation as a Project Manager. By 1990 I

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had a training in England on environmental Forestry with specialization on erosion control and land scaping. I worked for 4 years in Ondo State as project manager and transferred to Lagos until 1997. But before 1997 I had the crastal training. After training I was appointed a member of FEPA EIA review panel. Before I started working I was given orientation on EIA on the attributes of EIA and what look for as a member of the panel, I served in that capacity and later joined a review of EIA from Mobil, ELF Cross River State Government. By 1997 I had a problem with Nigerian Conservation Foundation and I left. I joined Africa Inter Environmental monitor working with coastal communities about pollution and dealings in Fishing?.
?
The purpose of PW4’s evidence was to show that there was oil spillage from the respondent into the area where the appellants were fishing, and that the spillage caused damage to the appellants’ properties. PW4’s credentials that he has had (i) special training in environmental assessment and experience in coastal pollution, (ii) experience and knowledge in environmental impact assessment, (iii) knowledge of the methodology of

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testing the presence of crude oil in the aquatic environment, coupled with his answers to question put to him under cross-examination that:
(a) when there is a spillage, one would carry out an environmental audit report;
(b) that a party involved in oil spillage is to carry and post-environmental inspection assessment;
(c) to test for the scientific presence of crude oil in a substance, one can identify hydro-carbon through laboratory analysis; and
(d) that a geo-printing is used to identify the ownership of a spilled crude oil.

The foregoing qualifications, knowledge and experiences of PW4, in assessing the impact of pollutants, and crude oil on the aquatic environment, which were necessary in assisting the lower Court to decide the dispute before it, the said witness cannot but be an expert. PW2 and PW4 ought to have been regarded as expert witnesses. Exhibits “F” and ?H” prepared by them ought to have been taken and or regarded as reports prepared by expert witnesses. Whether the evidence of PW2 and PW4 were cogent and credible, to have sustained the claims of the appellants was a different issue that the learned trial Judge

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would have to consider, after taking the evidence of witnesses for the respondent, before taking a decision.

For as enunciated in the case of Ngige v. Obi (2006) All FWLR (pt.330) p. 330 @ 1041 particularly @ 1165, the Supreme Court said:
“An expert witness is in the same position as a witness of fact. An expert’s evidence is necessarily founded on his training and experience both of which entail acceptance of hearsay information. Experts may be called to give evidence; they do not decide issues; for the trial Judge retains the power of decision which he must not abdicate”

In view of the foregoing, I resolve Issue 1 that the learned trial Judge was not right when he held that Pw2 and PW4 were not expert witnesses.

ISSUE 2
Whether the learned trial Judge misdirected himself when he held that the appellants who raised the doctrine of res ipsa loquitor still had the burden of proving negligence. On this issue, Ishola Esq., submitted that the learned trial Judge of the lower Court misdirected himself by failing to examine the plea of res ipsa loquitor raised by the appellants by placing the burden to prove negligence on them. Counsel

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contended that the learned Judge correctly stated the position of principles of the doctrine of res ipsa loquitor on pages 648 – 649 but reached an erroneous decision on page 650 of the printed record of appeal. It has been further contended that the learned trial Judge did not consider whether there was evidence adduced to sustain the plea of res ipsa loquitor by the appellants. Rather, it was contended, the learned Judge placed the burden to prove negligence on the appellants, and dismissed their case having not proved negligence by the respondent. Counsel submitted that it was wrong for the learned Judge to have done so, and urged that this Court should find and hold otherwise.

Ezediaro Esq., of learned counsel to the respondent, submitted that the learned Judge was right in his findings and decision that the appellants did not prove negligence though they pleaded same in their Amended statement of claim. That having failed to prove negligence, the doctrine of res ipsa loquitor, was not available to them. Counsel submitted that mere pleading of res ipsa loquitor is not enough to establish negligence by relying on res ipsa loquitor, that where the plea

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of the doctrine of res ipsa loquitor is denied by a respondent, a plaintiff must adduce evidence proving negligence. That it is not correct to say the learned trial Judge did not consider and evaluate the evidence of both parties before arriving at his decision that res ipsa loquitor was not proved by the appellants to have entitled them to the judgment at the Court.

In resolving the issue whether the learned trial Judge misdirected himself when he held that the appellants even though they raised the doctrine of res ipsa loquitor, they still had to prove negligence. It is pertinent to examine the provisions of Sections 131 to 133 of the Evidence Act, 2011 which deal with the burden and standard of proof in civil cases. The said provision are reproduced hereunder for easy comprehension and appreciation.
“131 (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that Person.
132 The burden of proof in a suit or proceeding

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lies on that person who would fail if no evidence at all were given on either side.
133 (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be give if no more evidence adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence”.
By the provisions of Section 133(2) of the Evidence Act, 2011, in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings. If such

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party adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced; and so on successively until all the issues in the pleadings have been dealt with.

Thus, in civil cases, the onus of proof is not as fixed on a plaintiff as it is on the prosecution in criminal cases. It continually shifts from side to side in respect of a fact in issue until it finally rests on the party against whom judgment will be given if no further evidence is proffered before the Court. Adegoke v. Adibi (1992) 5 NWLR (Pt 242) 410; A.G. Lagos State v. Purification Tech. (Nig) Ltd (2003) 16 NWLR (Pt. 845) 11 F.A.T.B Ltd v. Partnership Inv. Co. Ltd (2003) 18 NWLR (Pt. 851) 35.
In the case of (Mrs) Orji v. Orji iles Mills (Nig) Ltd (2009) 18 NWLR (Pt. 1173) P. 467 @ 489, the Apex Court, per TOBI J.S.C, lucidly expounded the provisions of Section 133(2) of the Evidence Act 1990, which are impari materia, with Section 133(2) of the Evidence Act, 2011, thus:
?By the Section, the burden of proof is not static. It

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fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give judgment if no evidence is adduced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party by virtue of Subsection (2). And so the burden changes places almost like a chameleon or the weather cock in climatology until all the issues in the pleadings have been dealt with?

Did the learned trial Judge place the burden to prove negligence on the appellants having pleaded res ipsa loquitor? On page 650 of the printed record of appeal, the learned trial Judge, after evaluating the evidence adduced by the appellants and respondent, held thus:
“It is apparent from the evidence led by the plaintiffs that they did not prove any negligence on the part of the defendant. Also, in JUMBO V. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (supra), it was held that in an action for negligence, the burden is on the plaintiff not only to plead particulars of negligence but also to lead evidence in proof….. Thus, the

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totality of the evidence adduced by the plaintiffs fall short of the evidence required to prove negligence on the part of the defendant and in consequence thereof, the plaintiffs? claim is bound to fail in that respect”

It is correct as contended by learned counsel to the appellants, that the doctrine of res ipsa loquitor was pleaded by the appellants in their Amended Statement of claim, but the respondents denied same, and went ahead to adduce evidence which negated the applicability of the doctrine of res ipsa loquitor, shifting the burden of proof on to the appellants. It is at this stage that the provisions of Section 133(2) (then 137(2) of the Evidence Act applied which justified the learned trial Judge in arriving at the decision on page 650 of the printed record of appeal, which has been reproduced supra. The learned trial Judge did not therefore, misdirected himself when he held that the appellants did not prove negligence, notwithstanding the plea of res ipsa loquitor. Issue 2 is hereby resolved against the appellants.

ISSUE 3
Whether the learned trial Judge erred in law when he held that the appellants (as plaintiffs) did not

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discharge the burden of proof, therefore were not entitled to judgment? Ishola Esq., of learned counsel, submitted that having regard to the evidence adduced before the lower Court by the parties, the judgment of the Court is against the weight of evidence that is, if the learned trial Judge had properly weighed the evidence, judgment ought to have been in favour of the appellants. Counsel contended that the learned trial Judge did not properly evaluate the evidence, if he had done so, the judgment would have been otherwise, that is, in favour of the appellants. Counsel then urged the Court to evaluate the evidence and arrive at a just decision. On the powers of an appellate Court to evaluate evidence on appeal, counsel cited and relied on the case of Afolabi & Ors v. WSW Ltd & Ors (2012) 7 SC P.64 @ 80 and Order 4 Rule 3 of the Court of Appeal Rules, 2011. Counsel adumbrated that res ipsa loquitor, by itself, is evidence of negligence, therefore, where pleaded by a plaintiff in an action, the burden of proving there was no negligence is on the defendant. That in such a situation, the defendant has the burden to prove he was not negligent. The case of

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Management Enterprises Ltd v. Otusanya (1987) 4 SC P. 251 @ 266 cited to buttress the submission supra.

Submitting further, counsel contended that to sustain the plea of res ipsa loquitor, there must be evidence of the occurrence of an accident and that as a result of the accident, the other party suffered damages or injuries, and that what caused the accident was under the control or management of the defendant. That the accident is such that could not have happen in the ordinary course of event had the defendant not been negligent. The case of Royal Ade (Nig) Ltd v. National Oil Plc (2004) 4 SC (Pt. 1). P. 90 @ 98 cited to reinforce the submissions supra. Counsel referred to the evidence of the witnesses who testified on behalf of the appellants and submitted that no evidence has been adduced by the respondent to challenge or contradict same, therefore, the learned trial Judge should have relied on same in arriving at his decision. The cases of Cameroon Airline v. Otutuiz (2011) 1-2 SC (Pt. 1111) P. 280 @ 237 and Omoregbe v. Lawani (1980) 3-4 SC P. 70076 cited and relied on to buttress the submissions supra. It is counsel’s further submission that since

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the evidence adduced by the appellant on (i) Oil spillage by the respondent (ii) that the spillage got to Lagos; (iii) that the crude oil presence at the high sea where the appellant had their fishing nets and boats in Lagos; (iv) that the oil also got to the coastal line where the appellant had their fish ponds and (v) the ownership of the oil in Lagos admitted by the respondent, were not challenged by the respondent, it has been established that the oil spillage spread to Lagos high sea and the coastal areas where the appellants had their fishes, and fishing equipments, therefore, the appellant had prove their case.

On the damages caused by the oil spillage to the appellant’s properties, counsel referred to the evidence of PW1, PW2, PW3 and PW4 and contended that the respondent did not by credible evidence debunked the evidence of those witnesses, therefore, the learned trial Judge ought to have relied on same in arriving at a decision. In conclusion, counsel did urge the Court to hold that the decision of the lower Court was against the weight of evidence because the learned trial Judge failed to evaluate the evidence adduced by the appellants on res

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ipsa loquitor and did not apply the rule in Ryland v. Fletcher, which could have made a difference in the judgment of the lower Court.

Ezediaro Esq., for the respondent, submitted that the contention of learned counsel to the appellants, that the learned trial Judge did not evaluate the evidence or if he did, it was not properly done, in arriving at the decision dismissing the appellants’ case cannot be correct. That the learned trial Judge did evaluate the evidence and ascribed probative value to the evidence of each witness as enumerated in the case of Odofin v. Mogaji (1978) vol. 11 NSCC P. 275, in arriving at the decision dismissing the appellants’ case for not having been proved as required by law. Counsel pointed out that the learned trial Judge evaluated the evidence as could been seen on Pages 647 to 648 of the printed record of appeal. On the invitation of learned counsel to the appellants to this Court to re-evaluate the evidence and arrive at a just decision, Counsel submitted that, it is not at all times that an appellate Court can re-evaluate evidence on appeal. There must be in existence cogent and justifiable reason for an appellate Court

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to interfere or disturb the evaluation of evidence and ascription of probative value thereto. That the appellants have not shown any cogent and justifiable reason for this Court to interfere with the evaluation of evidence when he arrived at a decision dismissing the case of the appellants because it was not proved as required by law.

Counsel further contended that the learned trial Judge had a summary of the evidence of the witnesses for the parties and proceeded further to evaluate same, whereby he ascribed probative value thereto, before arriving at a decision.

On the issue of damage to the appellants which was denied by the respondent, counsel submitted that the law is trite, where the claim is in the nature of special damages, same must be proved by cogent and credible evidence, which the appellants failed to do so as found by the learned trial Judge. On whether the appellants proved their case entitling them to damages, counsel submitted that having regard to the claim before the lower Court, the appellants, in order to succeed, must have adduced credible evidence that it was the respondent negligence that caused them the damages or injury, the

31

basis of their action against the respondent.

On whether the respondents had controverted the evidence of PW1, PW2, PW3, and PW4, counsel submitted that, if the evidence of DW1, DW2, DW3, DW4, DW5 and DW6 are evaluated vis-a-vis the evidence adduced by the appellants, it would be obvious that the evidence of the respondent’s witnesses carried more weight than that of the appellants. That, indeed, that was the findings and conclusion of the learned trial Judge when he dismissed the appellants? claims having not been proved by the credible evidence. In conclusion, Counsel did content that the decision arrived at by the learned trial Judge dismissing the appellants’ action, cannot be perverse in view of the cogent and credible evidence adduced by the respondent. Issue 3 resolved against the appellants.
?
The claims of the appellants at the lower Court was that the respondent’s oil spill caused damages to their equipment affecting their fishing business, hence they were entitled to damages which was occasioned by the negligence of the respondent. In deciding whether the appellants were entitled to damages as claimed, they called four (4) witnesses

32

and tendered exhibits. The respondent called six (6) witnesses and tendered exhibits in their defence to the claims of the appellants. The law is trite, in civil cases, the onus of proof is on the plaintiff who asserts the positive. To be entitled to judgment the plaintiff has the onus of adducing credible evidences to prove his case. However, the burden of proof is not always on the plaintiff. The onus may shift from the plaintiff to the respondent depending on the state of the pleadings and presumptions of the state of things that may arise in the proceedings before the Court. The foregoing proposition of the principles of law is predicated on the provisions of Sections 131, 132, 133, of Evidence Act, 2011. To comprehend and appreciate the purport of the said provisions they are reproduced hereunder.
“131. (1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
132. The burden of proof in a suit or proceeding lies

33

on that person who would fail if no evidence at all were given on either side.
133. (1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given is no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.
134. The burden of proof shall be discharged on the balance of probabilities in all civil proceedings.”
The provisions of Section 131, to 133 of the Evidence Act have been interpreted and applied by the Courts in plethora of cases but a reference to the case of Mini Lodge ltd. v. Ngei (2009) 7 NWLR (Pt. 117) p. 354 @ 286 suffices.

34

In the said case, the Supreme Court state that:
“By virtue of Section 135(1)(now Section 131(1)) of the Evidence Act, whoever Desires any Court to give judgment as to any legal right or liability depended on the existence of facts which he asserts must prove that those facts exist. Proof in a civil case is on the balance of probability or on the preponderance as to the claim before the Court and judgment will, at the end of the day, be given to the party that the evidence tilts in favour of in the case.”
In Dana Impex Ltd v. Aderotoye (2006) 3 NWLR (Pt. 966) P. 78 @ 102-103, it has been enunciated that:
?Although the onus of proof in civil cases shifts depending on the nature of evidence produced by the parties, the initial duty is always on the plaintiff to prove or establish his case. Thus the popular maxim that, he who asserts must prove. In other words where an allegation is made by a Party, whether affirmative or negative the burden of proving that allegation rests squarely on the party who made it?.
?
The claims of the appellants was rooted in negligence. That the respondent was negligent which caused the oil spill which damaged

35

their fishing business. What then is negligence? Negligence is said to be the omission or failure to do something which a reasonable man, under similar circumstances, would do, or doing of something which a reasonable and prudent man would not do. Negligence can be said to be the failure to exercise that care which the circumstances demand, that is, the absence of care according to the circumstances. It is a fluid principle that has to be applied to the most diverse conditions and problems of human life. Odinaka v. Moghalu (1992) 4 NWLR (Pt. 233) 1.

For a claim in negligence to succeed, the plaintiff must prove that the defendant owed him a duty of care, and was in breach of that duty. Negligence is a question of fact, not of law. Therefore, each case must be decided in the light of its own facts. In all cases, the burden of proving negligence rests with the plaintiff, except where the circumstances permit reliance on res ipsa loquitor. Kalla v. Jumakani Transport Ltd (1961) AII NLR 747.

In most cases where negligence cannot be proved or established by evidence, the doctrine of res ipsa loquitor would be resorted to prove negligence. Res ipsa

36

loquitor means “the thing speak for itself”. The purport of the doctrine is to shift the burden or onus of proof on a defendant to disprove negligence. See P.S.H.M.B v. Goshure (2013) 3 NWLR (Pt. 987) P. 383 @ 395 and 397; Odebunmi v. Abdullahi (1997) 2 NWLR (Pt. 489) P. 526 and Ojogbue v. Nnubia (1972) AII NLR (Pt. 2) P. 226. The doctrine of res ipsa loquitor comes into operation where
(a) there is proof of the happening of an unexplained occurrence;
(b) the occurrence must be one which would not have happened in the ordinary course of things without negligence on the part of somebody other than the plaintiff;
(c) the circumstances must point to the negligence in question being that of the defendant rather than that person.
See Royal Ade (Nig) Ltd v. NOCM Co. Plc (2004) 8 NWLR (Pt. 874) P. 206.
The doctrine of res ipsa loquitor is applicable when in the circumstances of a particular case, there are evidence which, viewed not as a matter of conjecture, but of reasonable argument, makes it more probable that there was some negligence, upon the facts as shown and undisputed, than that occurrence took place without negligence. In other

37

words, the doctrine applies when the facts stand unexplained and therefore the natural and reasonable, not conjectural inference from the facts shows that what had happened is reasonably to be attributed to some act of negligence, on the part of somebody. That is, some want of reasonable care under the circumstances.
When a thing is shown to be under the management of a defendant or his servants and an accident is such as does not occur in the ordinary course of events if the persons who are in management, exercise proper care or diligence, then in the absence of any explanation by those in management as aforesaid as to how the accident happened, the accident is presumed to occur due to lack of care. Thus, negligence is presumed in such cases because in such cases, negligence is inferred to have resulted from the want of care by the persons in the management or their agents or servants. Odebunmi v. Abdullahi (1997) 2 NWLR (Pt. 489) 526.
It is important to note that res ipsa loquitor is a form of circumstantial evidence by which a plaintiff, in an appropriate case, establishes the defendant’s negligence. It raises a rebuttable presumption of

38

negligence by the defendant and presents a question of fact for the defendant to meet with an explanation. See PSHSMB v. Goshwe (2013) 2 NWLR (Pt. 1338) P. 383 @ 402. The presumption of Negligence that res ipsa loquitur imposes on a defendant is rebuttable. It is therefore for the defendant to establish by credible evidence that he was not negligent, therefore, not responsible for the event that caused damage to the plaintiff.

Did the appellants adduce credible evidence proving that there was (i) oil spill, (iii) the oil spill was due to the negligence of the respondent and (iii) the appellants suffered damages or injuries as a result of the oil spillage? On the averments contained in the appellants’ Amended Statement of Claim, the cause of action was rooted or predicated on negligence. Paragraphs 7 to 27 of the Amended Statement of claim are germane. The particulars of negligence have been enumerated in paragraph 27 to 29 thereof; which are hereunder reproduced:
“27. The plaintiffs further aver that the 1st defendant was negligent in the management of the spill and thus the spread to cause damage to the Plaintiff.
PARTICULARS OF NEGLIGENCE<br< p=””

</br<

39

a. The defendant has laid its pipes for over 25 years without changing them.
b. the defendant failed to maintain its pipeline and platform in line with the required international standard.
c. The defendant were supposed to have devices to monitor corrosion along the pipes but never had this hence the pipe rusted and spilled oil.
d. The defendant failed to put in place anti rust devices hence the pipe rusted and spilled oil.
e. The defendant failed to install and or maintain valves to control the oil in the pipes and to shut down the system when the spill occurred to minimize the quantity of oil spilled
f. the defendant’s facilities and technology are obsolete and outdated and … international standard hence the spill.
g. The 1st defendant failed to use adequate oil spill response equipment curtailment on the oil spill but rather the recovery of crude oil is manual
h. The defendant failed to conduct their operations in a manner consistent with “good oil field practice” to prevent the spill which occasioned the pollution
i. The defendant failed to comply with the guidelines and directives of the department of Petroleum

40

Resources and Federal Environmental Protection Agency which requires it to give adequate or timely warning or notice of the escape of crude oil from its pipes. Oil well or flow station by completing and filing STANDARD OIL SPILL REPORT FORMS
j. The defendant failed to comply with FORM B of the Standard Oil Spill Report form which is the progress oil spill report that was to be submitted within fourteen (14) days of the spill incident and also the FORM C of the Standard Oil Spill Report (the clean up report) which was to be submitted within Four weeks of the spill incident and this failure did not allow timeous action to be taken to combat the spill and prevent consequent injury to the plaintiffs
28. ALTERNATIVELY: the plaintiffs aver that at all material time to this case, the pipeline/platform from which the oil was spilled was under the control of the first defendant and that oil spill in the magnitude spilled by the defendant would not in the ordinary course of things have happened without negligence. The plaintiffs here by plead Res ipsa locquitor for the proof of negligence.
29. The plaintiffs aver that the defendant for its own purpose

41

brought, collected and accumulated in its ldoho and Qua Iboe Terminal, pipeline and platform, crude oil which is likely to cause injury if it escapes and the crude oil escaped and caused damage to the plaintiffs. Plaintiffs pleads and shall rely on the rule in Ryland v. Fletcher in this case”.

The appellants called four (4) witnesses who testified on their behalf in support of the averment in paragraph 7 to 29, of their Amended statement of claim. The evidence of PW1 has been recorded on pages 534 to 544, of the printed record of appeal.

The evidence of PW2, Chief Olu Adama, has been recorded on pages 544 to 547 of the record of appeal. Fokosi Okiniji (alias) Edatomolakosi, testified as PW3, his evidence can be found on pages 592 to 556 of the printed record of appeal. PW4, Sylvestor Sunday Orhier testified as recorded on pages 558 to 562 of the record of appeal.

The appellants by their pleadings in paragraphs 29 of the Amended Statement of claim and the evidence of PW1, PW2, PW3 and PW4 relied on negligence which led to the oil spillage which caused damage to their properties and fishing business.
?
The presumption of negligence that res

42

ipsa loquitur imposes on a defendant is rebuttable. It is for the defendant to show that he was not negligent. See PSHSMB v. Goshwe (2013) 2 NWLR (Pt. 1338) P. 383 @ 396. By the pleadings in paragraphs 7 to 29 of the Amended statement of Claim, especially the reliance on the doctrine of res ipsa loquitur, as an alternative to negligence per se, the appellants satisfied the provisions of Section 133(1) of the Evidence Act 2011, which provides that:
“133(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the Pleadings”.

The effect of a successful plea of res ipsa loquitor is that the burden to prove absence of negligence is shifted to the defendant to rebut. See Management Ent. Ltd. v. Otusanya (1987) 4 SC 251 @ 266.

The respondent in its defence to the claims of the appellant averred as follows. See paragraphs 14 to 15 of the Amended Statement of defence reproduced hereunder:
“Contrary to paragraph 26 and 27 of the amended statement of claim,

43

this defendant denies that the oil spill and the alleged loss suffered by plaintiffs were caused by its negligence and that the defendant was negligent in the management and maintenance of its oil platform, pipeline and management of the oil spill.
PARTICULARS
(a) The defendant’s pipelines were constructed and maintained in accordance with established standards and/or the department of Petroleum Resources’ of the Ministry of Petroleum Resources (the statutory supervising authority’s guidelines.
(b) The defendant carried out its operations in strict compliance in strict compliance with the regulations of the Department of Petroleum Resources, the then Federal Environmental Protection Agency (the Federal Ministry of Environment and the Inspectorate Division of the Department of Petroleum Resources.
(c) the defendant’s response and clean-up operations after the oil spill were immediate, timely and effective and those efforts have been commended by the Department of Petroleum Resources and/or the Federal Ministry of Environment as being exemplary;
(d) Right from the day the oil spill occurred and without knowing what negative impact

44

it may cause, this defendant, through various forms of media, embarked upon a widespread publicity campaign to warn inhabitants of coastal areas along the Atlantic coast of Nigeria of the occurrence of the oil spill and of Protective action to take.
The defendant denies that the doctrine of res ipsa loquitor applies to this action”

The respondent called six (6) witnesses who testified on its behalf in support of the averments in paragraphs 14 and 15 of the 2nd Amended statement of defence DW1 Lawrence Inyang testified as recorded on pages 566 to 572 of the record of appeal. Dele Oluwakodeji testified as DW2. His testimony has been recorded on pages 573 to 584 of the printed record of appeal. Professor Babajide Alo was DW3, whose evidence has been recorded on pages 585 to 596 of the printed record of appeal, and professor Kola Kusemiji testified as DW4, his evidence can be found on pages 599 to 605 of the record of appeal. On the 22nd day of July 2009, learned counsel sought and obtained leave of the lower Court to adopt the evidence of PW5 and 6 in suit No. FHC/KD/CS/38/2008 as their evidence in the extant suit No. FHC/KD/CS/37/2008.
?
The

45

appellants? complaint or grouse is that the learned trial Judge of the lower Court did not evaluate the evidence adduced by the parties or if he did, it was not properly done. In Bello v. State (2007) 10 NWLR (pt. 1042) p.564 @ 582, this Court stated that evaluation of evidence entails the assessment of evidence so as to give value or quality to it. There must be stated on record how the Court arrived at its conclusion of preferring one piece of evidence to the other. See alsoAlake v. State (1992) 9 NWLR (Pt. 265) P. 260. In the civil case of llori v. Tella (2006) 18 NWLR (Pt. 1011) P. 268 @ 291 the Court of Appeal held that evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and the disbelief of the other or a reasoned preference of one version of evidence to the other. See also Oyekola v. Ajibade (2001) 17 NWLR (Pt. 902) P. 356 and ldakwo v. Nigerian Army (2004) 2 NWLR (Pt. 857) P. 2419.
In the evaluation of evidence, the trial Judge has to consider or give due regard to, among other things the following:
(i)

46

Admissibility of the evidence
(ii) Relevance of the evidence
(iii) Credibility of the evidence
(iv) Conclusiveness of the evidence, and probability of the evidence in the sense that it is more probable than the evidence of the other party
(v) Finally, the trial Judge, having satisfied himself that all the above requirements have been met, apply the law to the facts presented in the case before arriving at a conclusion one way or the other. See Magaji v. Odofin (1978) 4 SC 91 and Adeyeye v. Ajiboye (1987) 3 NWLR (Pt. 61) P.432.

On pages 630 to 632 of the printed record of appeal, the learned trial Judge of the lower Court did evaluate the evidence adduced by the parties to the dispute before taking a decision in dismissing the appellants? claims.
The learned trial Judge, after evaluating the evidence arrived at decision on pages 650-651 that:
?It is apparent from the evidence led by the Plaintiffs that they did not prove any negligence on the part of the defendant. Also, in Jumbo v. Shell Petroleum Development Company of Nigeria Limited (supra). It was held that in an action for negligence, the burden is on the

47

plaintiff not only to plead particulars of negligence but also to lead evidence in proof. The particulars to be pleaded and proved in negligence are not merely the general principles but the circumstances of the complaint relevant to the case. In the instant case, PW4 while being cross-examined said he never visited ldoho Platform where the spill occurred while PW2 the valuer admitted not to have prior experience in the valuation of any oil spill and hence he is not an expert.
Therefore, none of the witnesses called by the plaintiffs could help the Court determine the relevant questions as to the quantity of the oil spilled and the effect on aquatic lives. Thus, the totality of the evidence adduced by the plaintiffs fall short of the evidence required in proof of negligence on the part of the defendant and in consequence thereof, the plaintiffs’ claim is bound to fail in that respect”.

It is worthy to note that the evaluation of evidence and the ascription of value or quality thereto are the preserve of the trial Judge who would have had the singular opportunity of seeing, hearing and observing the witness(s) giving evidence. In Yadis (Nig) Ltd v.

48

GNIC Ltd (2007) 11 NWLR (Pt. 1055) P. 587 @ 607, it was held that it is the primary duty of the trial Court or trial Judge to evaluate evidence, make findings and apportion probative value thereto, not for an appellate Court to do so, except where the trial Court failed to do so or it was improperly carried out. In Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1125) P. 659 @ 615, it was held that the finding of facts, evaluation of evidence, and the ascription of probative value thereto are the exclusive preserve of the trial Court or trial Judge as the case may be. Where a trial Court properly evaluated the evidence before it and ascribed probative value thereto, an appellate Court has no business to interference with such evaluation and ascription of probative value thereto. It cannot substitute its own findings, evaluation or ascription of probative value merely because it does not agree with the way and manner it was carried out by the trial Court. See NEPA v. Adesanju (2002) 17 NWLR (Pt. 797) P. 38 and Ndidi v. State (2007) 13 NWLR (Pt. 1052) P. 633.

Learned counsel to the appellants further contended that that judgment of the lower Court is against the

49

weight of evidence. When it is alleged that a judgment is against the weight of evidence, what it means is that:
(a) the judgment of the trial Court cannot be supported by the weight of the evidence adduced by the successful Party, which the trial Court either wrongly accepted or that the inference drawn or conclusion reached by the trial Court based on the accepted evidence cannot be justified; or
(b) there is no evidence, which if accepted would support the findings of the trial Court; or
(c) when the evidence adduced by the appellant is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the whole gamut of evidence adduced before the trial Court. SeeAnyaoke v. Adi (1986) 3 NWLR (Pt. 31) 731 referred to (P. 609).

The law is trite, a trial Court has the duty to evaluate the evidence adduced before it and ascribe probative thereto in deciding or preferring which evidence is credible, and which evidence is unreliable, before taking a decision on any matter in dispute. On the duty of a trial Court to evaluate evidence, ESO, JSC (of blessed memory) had this to say in the case of Chief

50

Frank Ebba v. Ogodo LC 499 @ 507- 508:
“Indeed, it was the duty of the trial Court to assess witness, from impressions about them and evaluate their evidence in the light of the impression which the Court forms of them. That is one reason why the trial Court is named “trial Court”. It is the trial Court and hence a Court of Appeal should attach the greatest weight to the opinion of the trial Judge that has the duty to see and indeed in the case, has seen the witnesses and also heard their evidence”
The proper approach to the evaluation of evidence and ascription of probative value to the evidence adduced has been enunciated in the case of Otaigbe v. B.C.C Ltd (2014) All FWLR (Pt.747) P. 707 thus:
“Thus the totality of the evidence led in the action by both sides are put on an imagination scale and weighed together.’ That is the admissible and relevant evidence of the Plaintiff and also the defence, are put on each side of the scale respectively and weighed together in order to determine whose evidence weighed are or is heavier than the other… this will not depend upon the number and quantity of witness for either side but by the QUALITY of

51

probative value of their piece of evidence”.
Therefore, in evaluating any piece of evidence placed before it by parties, a Court of law is duty bound to consider the totality of the evidence led by each of the parties, it shall then place it on the imaginary scale of justice to see which of the two sides weighs more creditably than the other. Thus, evaluation of evidence entails the assessment of same so as to give value or quality to it. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other See Lagga v. Sarhuma (2008) 16 NWLR (Pt. 1114) P.427 @ 460.

The learned trial Judge accepted and relied on the evidence of DW1- DW6 being credible. It is not correct to contend, as the learned counsel to the appellants did, that the judgment of the lower Court is against the weight of evidence. The respondent discharged the burden of proof placed on it by Section 133(2) of the Evidence Act, 2011. The onus of proof then shifted to the appellants as provided by provisions of the aforementioned Section

52

133(1) and (2) of the Evidence, which provides thus:
“133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the Pleadings;
(2) If the party referred to in Subsection (1) of this Section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.
(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence”

As to the evidence of PW2 and PW4, though they are experts, the learned trial Judge was right when he did not rely on same proving the claims of the appellants, for, as expounded in Ngige v. Obi (2006) All FWLR (Pt. 330) P. 1041 @ 1123 ? 1124, that:
?A Court is entitled to accept the evidence of an expert if it is credible, particularly if it is

53

not Controverted or challenged and Comes from an expert with demonstrable skill. However, the evidence of an expert is generally an aspect of the entire evidence to be evaluated by a Court. The trial Court must fully be in control of all the evidence before it and must not abdicate its role to perform its primary duty of assessing the evidence and forming its clear opinion in relation thereto, including any expert evidence. A Court is not bound by the evidence of an expert witness. The Court has an option in the matter, an option which it has to exercise judicially and judiciously in the light of other available evidence”.
After all a Court is only bound to accept and act on the report of an expert if available and is unchallenged and uncontradicted. See Seismography Service (Nig) Ltd v. Akporovo (1974) 6 SC P. 119 @ 136.

The learned trial Judge was therefore right in his judgment on page 650 of the record of appeal when he held thus:
“Therefore, none of the witnesses called by the plaintiffs could help the Court determine the relevant questions as to the quantity of the oil spilled and the effect on aquatic lives. Thus, the totality of the

54

evidence adduced by the plaintiffs fall short of the evidence required in proof of negligence on the part of the defendant and in consequence thereof the plaintiffs? claim is bound to fail in that respect”.

I resolve issue 3 against the appellants. Having resolved issues 2 and 3 against the appellant, the appeal fails. The judgment of the learned trial Judge delivered on the 24th of April, 2012, in suit No. FHC/KD/CS/37/2008 is hereby affirmed. The respondent are entitled to costs assessed at N50,000.00. Same is awarded accordingly’

THE CROSS-APPEAL:
The Notice of cross-Appeal filed on the 12th of May, 2015 consisted of three (3) grounds of appeal, which are reproduced hereunder, without the particulars:
“Ground one
The learned trial Judge erred in law when he held that on the state of the pleadings and evidence led before him, the suit before him was competently brought in a representative capacity.
Ground two
The learned trial Judge erred in law when he held that the Cross-Appellants failed to establish that the fishing activities of the Cross-Respondents were carried on illegally in that the Cross-Respondents did

55

not fish within the inland water ways and therefore the Cross-Respondents did not require license to fish and operate their motorized boats and required by the Inland Fishers Act CAP N47 Laws of the Federation and the National Inland Waterways Act CAP N47 Laws of the Federation.
Ground three
The learned trial Judge erred in law when he held that the burden of proving absence of license even where the Appellants conducted their fishing activities within the inland waterways rested on the Respondents.”
?
The Cross-Appellant’s brief of argument was filed on the 19th of February, 2016 and deemed on the 1st of March, 2016. The Cross-Respondent?s brief of argument was filed on the 16th of February, 2016. Two (2) issues were distilled from the grounds of the cross-appeal, which are thus:
“(i) Whether the trial Court was right when it held that Cross-Respondents were entitled to bring this action in a representative capacity and if not what is the resultant effect?
(ii) Whether the trial Court was right when it held that the Cross-respondents were carrying on their fishing activities illegally and if so, could they seek to take any

56

benefit from this illegally?”

The cross-respondents, in their brief of argument, raised objection to the competency of the issues formulated by the cross-appellant, which are as follows:
“(i) Whether the two issues and the arguments in support thereof of the Cross-Appellant in its brief of argument dated 19 of June, 2015 are liable to be struck out for incompetence’
(ii) Whether, in the event that issue 1 Above is in the affirmative, the three Grounds in the Notice of Cross-Appeal of the Cross-Appellant dated the 7th of November, 2014 and filed on the 12th of May, 2015 are deemed abandoned and liable to be struck out.”

The law is trite, when an objection is raised to the competency of any issue, it must be determined before proceeding with the hearing or conduct of the substantive case or appeal, as the case may be. See E.A. Industries Ltd v. NERFUND (2009) 8 NWLR (Pt. 1144) P. 535; UBA PLC v. ACB (Nig) Ltd (2005) 12 NWLR (Pt. 939) P.232 and Abiola v. Olawuye (2006) 13 NWLR (Pt. 996) P. 1.
?
The two (2) issues in respect of the objection to the competency of the Issues for determination contained in the Cross-Appellants brief of argument

57

are taken together. Counsel to the Cross-respondents submitted that an appeal is a continuation of the case at the lower Court, to review the conduct of a case decided by that Court, in order to see if the lower Court arrived at the right decision. That the two issues formulated by the cross-appellant do not require this Court, the Appeal Court, to determine any decision of the lower Court on the issue so raised, therefore this Court has no jurisdiction to entertain same. That the said issues are rather general limiting this Court to decide on same as it were a trial Court. That none of the issues requires the decision of this Court as to whether such a decision is right or not. That for the foregoing reasons the issues contained in the cross-appellant’s brief of argument are incompetent, and should be struck out.

On the 2nd point of objection, if the issues in the cross-appellant’s brief of argument are incomplete, there is no competent brief of argument filed by the cross-appellant. That this means, that where no issue has been formulated from the grounds of appeal, they are deemed to have been abandoned, and liable to be struck out. Counsel further

58

submitted that if the grounds of appeal and the issues formulated therefrom are struck out, the cross-appeal itself cannot stand, therefore same be struck out for being incompetent in law.

I have considered ground one of the grounds of appeal contained in the Notice of Cross-Appeal. This ground of appeal is questioning the decision of the lower Court that the suit filed by the cross respondents is competent though instituted in a representative capacity. See pages 641 to 644 of the printed record of appeal. The ground of appeal having been predicated on decision of the lower Court is therefore valid in law. The first issue distilled from ground one of the Notice of Cross- Appeal, is therefore competent. As for the competency of ground two of the Notice of Cross-Appeal, same has been predicated on the decision of the lower Court as could be found on pages 643 to 646 of the printed record of appeal. The 2nd issue distilled from ground two of the notice of Cross-Appeal has been distilled from this ground. It is therefore a valid issue for determination in the cross-appeal. In view of the foregoing, the contention of learned Counsel to the

59

Cross-Respondents that the 2 issues distilled out of the 2 grounds of the Notice of Cross-Appeal are incompetent having not be predicated on any decision of the lower Court, cannot be sustained. I hold that the 2 issues for determination in the Cross-Appellant?s brief of argument having been predicated on grounds of appeal related to the decision of the lower Court, are valid and competent in law. The objection raised to the competency of the cross-appeal is dismissed for lacking in merit.

RESOLUTION OF ISSUES IN THE CROSS-APPEAL
ISSUE 1
Whether the learned Judge of the lower Court was right when he held that the cross-respondents were right to have instituted the action in a representative capacity, if not, what is the effect? Learned counsel did contend that the cross-respondents shouldn’t have instituted the action in a representative capacity having regard to the pleadings and the evidence adduced before the lower Court. That the cross-respondents and those they sued for have nothing in common, except for the outboard engines and the fishponds as averred in paragraph 32 of the Amended statement of claim.

For the cross-respondents,

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it has been submitted that the pleadings in the amended statement of claim and the evidence adduced clearly established a common interest in the fishing materials which were damaged by the oil spillage as a result of the cross-appellants negligence. Learned counsel referred to paragraph 4,9,10,33 and 35 of the Amended statement of claim and pin-pointed the relevant averments supporting the cross-respondent basis for the representative action.

Order 12 Rule 8 of the Federal High Court (Civil procedure) Rules, 2000 under which the cross-respondents brought the action in a representative capacity provides as follows:
?Where more persons than one have the same interest in one suit, one or more of them may, with the approval of the Court be authorized by the other persons interested to sue… for the benefit of or on behalf of all parties so interested”
On what to consider in instituting a civil action in representative capacity, the Supreme Court, per Karibi Whyte, J.S.C. in the case of Adediran & Anor v. Interland Transport Ltd (1991) 9 NWLR (Pt. 214) P. 155 @ 182, said that:
“For an action lie in a representative capacity, learned

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counsel to the Plaintiff has stated the Principles correctly and clearly. And this is, that
(i) there must be a common interest
(ii) a common grievance
(iii) and the relief claimed must be beneficial to all.
It is important to observe that the rule applies only where the representative as well as those represented ?have the same interest’ in the action before the Court”
In Bamisile v. Osansaya (2007) 9 NWLR (Pt.1042) P.225@ 274, this Court, stated when it is appropriate to institute a civil action in a representative capacity where:
(a) Those represented have a common interest and a common grievance; and
(b) The relief sought is in its nature, beneficial to all those whom the Plaintiff is representing.
In other words, the persons who are to be represented and the persons representing them must have the same interest, common interest or common grievance. (Busari vs. Oseni (1992) 4 NWLR (Pt. 237) 557.

On page 643-644 of the printed record of appeal the learned trial Judge found and held thus:
?In paragraph 3, 4 and 31 of the Amended Statement of Claim, the Plaintiffs averred that they practiced their

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professional fishing within the Lagos high sea and foreshore under the umbrella society wherein they listed the members for and on whose behalf this action was brought as well as the fishing nets destroyed. PW1 testified that the action was commenced for and on behalf of lrepodun cooperative society in a representative capacity. The implication of the facts shown in the Amended Statement of Claim and the evidence of PW1 is that the present suit was instituted as representative action. I have held that there is no stipulation as to the exact words in which to indicate the capacity suing or being sued. Also considering the fact that failure to express the fact that an action is brought in a representative capacity on the Writ of summons does not ipso facto invalidate the proceedings, the present action is no doubt initiated in a representative capacity. This is premised on the copious averments in the pleadings and the evidence of PW1.?

The averments contained in paragraph 1, 2, 3, and 4 of the Amended Statement of claim, and the evidence of PW1 are germane to the institution of the action in representative capacity.
The averments in the paragraphs

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are reproduced hereunder:
?1. The plaintiffs are members and representative of all members of lrepodun (Ebute llaje) fishermen Co-operative Society with Secretariat at No.8, Ogundimu Street, Iwaya- Yaba, Lagos.
2. The Plaintiffs are professional fishermen registered as Fishermen co-operative society under the Laws of Lagos State. Certificate of registration shall be tendered during trial.
3. The plaintiffs are predominantly fishermen and Fishing is their means of livelihood.
4. The plaintiff under the umbrella of their society Practice their profession or vocation within Lagos State high-sea and Foreshore scattered all over Lagos State”
PW.1, Chief Abiodun Illesimi testified that:
“I am a Fisherman, I know the plaintiffs in this case. The plaintiffs are myself, Chief bayo Ayedi, Chief Daro Erukumehim and Mr. Ola Ayelumu and every members of lrepodun society. We jointly owned two Ayelumu and every members of lrepodun society. We jointly owned two Fish Ponds at Ebute- Ilaje, Iwaya in the coastal Area of Lagos Mainland. We area representatives of lrepodun Cooperative society. However, the other members have already mandated the

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4 (four) of us mentioned above to represent them in this case. We formed the co-operative society in the year 1989 and we got our Registration certificate in 1998 and we have been recognized and have been dealings with the outside world”

The averments contained in paragraph 1-4 of the Amended Statement of claim and the evidence of PW1, taken together have satisfied the requirements of Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rule, 2000, to have warranted the institution of suit FHC/KD/CS/3/2008 of the plaintiffs in a representative capacity for themselves and members of the Irepodun Fishermen’s co-operative society, Iwaya Lagos, in representative capacity. I resolve Issue 1 against the Cross-Appellant.

ISSUE 2
Whether the learned trial Judge of the lower Court was right when he held that the Cross-respondents were carrying on their fishing activities illegally, therefore could not derive or take any benefit from such illegality. Learned counsel pointed out that by the averments in paragraph 8 of the Amended statement of defence, the cross-respondents were carrying out the fishing business within the Inland Waterways of

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Nigeria illegality having not obtained the consent nor license to do so as required by Section 23 of the National Inland Waterways Authority Act, 2004. That the evidence of PW1, supported the contention of the cross-appellant that the cross respondents had no license nor authority to do their fishing business as required by law. That the burden of proof was on the cross-respondent to disprove the averments in paragraph 8 of the Amended statement of defence in view of the National Inland waterways Act. That by Section 131 (2) of the Evidence Act, the cross-appellant had no burden to prove the illegality of the cross-respondents act, rather the burden of prove shifted to the cross-respondents. As to whether the fishing activities of the cross respondents was within the Inland waterways of Nigeria, counsel submitted that Inland Waterways Act has defined the area as well as the Interpretation Act. That there is no difficulty in ascertaining the Inland waterways within which fishing has been prohibited without license for doing so. The case of Eyiniyi v. Adio (1993) 7 NWLR (Pt. 305) P.320 @330 has been cited to reinforce the submission that having pleaded the

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illegality, in their Amended statement of claim, the burden of prove shifted to the cross-respondents to disprove same by cogent evidence which they failed to do so.

For the cross-respondents, it has been submitted that the provisions of Section 23 of the National Inland Waterways Act creates an offence punishable there-under. That there must be evidence that the fishing activities by the cross-respondents was within the Inland waterways. That no evidence has been adduced before the lower Court establishing that the fishing activities by the cross-respondents was within the said waterways.
That the evidence of PW1 cannot be taken as an admission to prove the illegality of the activities of the cross-respondents under Section 23 of the National Inland Waterways, because that has not been expressly admitted by the cross-respondents.
?
The provisions of Section 23 of the National Inland Waterways Act, 2004 created an offence for fishing within the Inland Waterways without license or consent, of the Authority. Inland waterways, has been defined by Section 29 of the Act; to include all waterways, rivers, creeks, lakes, tide land and lagoons below the

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low water baseline. The contention of the cross-respondents is that their fishing activities was on the high sea, and foreshore of Lagos State, not within the Inland Waterways. The burden to prove that the activities of the cross-respondents was within the waterways was on the cross-appellant, which they failed to do so having not adduced evidence proving same beyond reasonable doubt as required by Section 135(1) of the Evidence Act. On pages 644 to 645 of the printed record of appeal, the learned trial Judge considered the pleadings and the evidence adduced on the assertion of fishing within the Inland Waterways contrary to Section 23 of the Inland Waterways Act, without license. The learned trial Judge then arrived at a decision on pages 645-646 that:
“In the light of the above, it is mandatory to obtain a license before conducting a fishing activity within the Inland waterways of Nigeria. It is the case of the plaintiffs that their fishing activities are on the high sea and foreshore of Lagos State not within the Inland Waterways. The burden of proving absence of license even where the plaintiffs conduct their fishing activities within the Inland

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waterways is clearly on the Defendant and the standard of prove is prove beyond reasonable doubt. Sec 135 and 136 of the Evidence Act. Thus, the Defendant has woefully failed to establish that the Plaintiffs are carrying out their fishing activities, illegally.?

I am in full agreement with the decision of the learned trial Judge of the lower Court, which has been reproduced supra. The cross-appellant, by Section 131 of the Evidence Act, 2011 had the burden of proof having asserted that the cross-respondents were illegally carrying out the fishing activities in the Inland Waterways. Having not adduced a scintilla of evidence the provisions of Section 133(1) and (2) of the Evidence Act, 2011 cannot be available to it to shift the burden of proof to the cross respondents.
I resolve issue 2 against the cross-appellant. With the resolution of the 2 issues against the cross-appellant, the cross-appeal fails. Same is dismissed accordingly. The judgment of the lower Court on the portions appealed against are hereby affirmed. The cross-respondents are entitled to costs, assessed at N50,000.00. Same is awarded to them.

In the final analysis, the

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appeal fails. The cross-appeal also fails. The judgment of the lower Court delivered on the 24th of April, 2012, in Suit No. FHC/KD/CS/37/2008, is hereby affirmed.

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Other Citations: (2016)LCN/8677(CA)