Mr. Newman Ighedo & Ors V. Power Holding Company Nigeria Plc (2018)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal by the plaintiffs at the Federal High Court being dissatisfied with the judgment of the Court of Appeal, Lagos division delivered on the 15th day of December, 2004 which set aside the judgment of Egbo-Egbo, J. earlier given on the 21st day of November 2000, and ordered the striking out of their claim in suit No.F.HC/B/157/96 on the ground that it was incompetent.

The appellants as plaintiffs had instituted an action for themselves and on behalf of Ekrusierho community in Ekakpoimre. By their writ of summons issued on 15/11/1996, they had claimed the sum of one hundred and fifty million Naira (N150,000,000.00) being compensation and for loss suffered as a result of pollution of their (Plaintiffs) stream. They had claimed in the alternative, the sum of one hundred and fifty million Naira (N150,000,000.00) being damages for nuisance, negligence and or breach of statutory duty.

The appellants case is that sometime in 1991- in the course of the respondent’s operation at Delta Power Station at Ughelli, they found that the respondent’s waste oil chemical from

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the power station were channeled through the respondent’s drainage system and discharged unto appellants’ land and Ekruiserho stream thereby polluting the said stream and land. Consequently, the Ekrusierho stream, a major source of water supply and major source of income for the community became unfit for human consumption and fishing activities. The inhabitants of the community thereby lost their source of domestic water supply and the fishing community was dislodged. The vegetation in the immediate environment of the stream was also affected. The appellants lodged series of complaints in respect of the pollution first to the Assistant General Manager in charge of the said Delta Power Station, who ordered for a scientific test of the water samples from the Ekrusierho stream. Subsequently, the appellants commissioned Messrs JAS GERE AND KNIGHT FRANK in July 1993 and January, 1995 respectively to carry out valuation of the losses and damages occasioned by the said pollution which they forwarded to the respondent. In reaction to the appellants’ complaints, the respondent, in 1994 dispatched a team of officers on a joint inspection with the appellants’

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representatives. A scientific test of the Ekrusierho stream in the respondent’s laboratory, located at- Sapele was conducted. Thereafter, the appellants pressed for compensation but the respondent declined to pay any compensation. This refusal led the appellants to institute the action claiming the sum of one hundred and fifty million Naira (N150,000,000.00) as compensation and loss suffered as a result of the continuous pollution of the said Ekrusierho stream which led to the consequential hardship, loss of source of income and destruction of the surrounding vegetation or in the alternative the same amount was claimed as damages for nuisance, negligence and or breach of statutory duty.

Pleadings were filed and exchanged by parties. The case proceeded to hearing. Both parties called witnesses and a number of exhibits were tendered and admitted in evidence. Judgment was later entered in favour of the appellants by the trial Federal High Court in the sum of fifty million Naira (N50,000,000.00) which was to be distributed on the basis of what the community would think fit in the circumstances. The respondent was dissatisfied with the judgment of the trial

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Court, hence appealed to the Court below on 18/2/2000. Pursuant to the leave granted by the Court below, the respondent filed an amended Notice of Appeal on 18/10/2002. Briefs of argument were filed and exchanged by parties. In its reserved judgment delivered on 15/12/2004, the Court of Appeal held that the action was incompetent in that the action could not be commenced in a representative capacity and struck out the suit.

Being dissatisfied with the judgment of the Court of Appeal led the appellants to appeal on 4th June, 2004 on a sole ground of appeal. Parties filed and exchanged briefs of argument. In the appellants’ amended brief of argument filed on 20/2/2017 the appellants distilled the following sole issue for the determination of the appeal.

“Whether the learned Justices of the Court of Appeal were right in holding that the plaintiffs cannot prosecute this action in a representative capacity.”

This appeal was argued on 17 /10/2017. Mr. Ajuyah, SAN of counsel for the appellants identified the processes they were relying on for the appeal. These include the amended appellants’ brief of argument and Appellants’ reply brief of argument.

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He adopted and relied on both briefs of argument to urge the Court to allow the appeal and set aside the judgment of the Court below and grant the damages claimed by the appellants at the trial Court as ordered.

Learned senior counsel referred to his Notice of Preliminary Objection to the Notice of Cross Appeal by the respondent. He adopted and relied on the argument contained in the cross respondents brief of argument. He urged the Court to allow the objection and sustain same in striking out the cross appeal. He submitted that there was no response to the preliminary objection by the respondent. However, in the event that the objection fails, he relied on the arguments in the cross respondents’ brief of argument to urge the Court to dismiss the cross appeal.

Mr. Ezekwueche of counsel for the respondent identified his respondent/cross appellant’s brief of argument filed on 22/6/2012, earlier deemed filed on 5/11/2012 but finally deemed properly filed and served on 17/10/2017. Also, cross appellant’s reply brief of argument which was filed on 25/11/2014 was deemed properly filed and served on 17/10/2017. For the respondent’s response to the

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appellant’s preliminary objection learned counsel referred to the Reply of Cross appellant. He adopted and relied on both processes to urge the Court to dismiss the main appeal, overrule the preliminary objection of the appellant and allow the cross appeal.

In arguing the sole issue distilled for determination of the appeal appellants referred to their claim and contended that before the action was commenced, the five nominees of the members of Ekrusierho community, authorized to initiate the action for themselves and on behalf of the members of the said community sought and obtained the approval of the trial Court to prosecute the action in a representative capacity. He referred to the ruling of the trial Court on the ex-parte application of the appellants to institute the action as they did.

Reference was made in the brief of argument to the pleading of the appellants on pages 24-27 of the record. Learned senior counsel contended that the respondent in its pleading in answer to the averments of the appellants in their Statement of Claim did not deny the following facts.

(a) The existence of the Ekrusierho stream;

(b) That the people of

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Ekrusierho community use the steam for fishing and as source of water supply;

(c) That the named plaintiffs are members of Ekrusierho community.

Learned senior counsel contended further that, in any case, the testimony of the 2nd and 4th Plaintiffs, given at the trial, support the averments in their pleading, that members of the community use the stream and that their grievance is that the pollution of the stream by the respondent dislodged their fishing activities and damaged their source of water supply, among other damages. He referred to Exhibits C-C9 and the evidence of PW4 at pages 70-72 of the record, to contend that the respondent’s scientific investigation confirmed the pollution of the stream. He referred to the findings of the trial Court on pages 222 and 262 of the record and the trial judge’s conclusion in awarding the sum he awarded in favour of the appellants.

Learned senior counsel contended that the learned Justices of the Court below who did not interfere with the findings of the learned trial Judge that the appellants’ community stream was polluted by the respondent and the pollution adversely affected appellants’ major source

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of domestic water supply, fishing activities and immediate environment were in grave error in their holding on pages 489 and 492 of the record and in coming to the conclusion that the appeal has merit and was allowed.

Learned senior counsel referred to Order IV Rules 1, 2 and 3 of the Federal High Court Rules, 1976, and contended that the said rules were not put into consideration before reaching the conclusion to allow the appeal of the respondent. He submitted that the provisions of the said rules are plain and unambiguous and do not require any interpretation aid. Learned senior counsel contended that, the appellants’ community which from the evidence consist of more persons than one with the same interest in the stream are entitled to bring the action for the benefit of all members of the community as provided by the Rules of the Court. He submitted that the appellants having shown by their pleadings and evidence, their common interest in the Ekrusierho stream and a common grievance against the respondent, were competent to prosecute the action in a representative capacity as approved by the learned trial Judge.

Learned senior counsel contended

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that the reasoning of the learned Justices that within Ekrusierho community there are farmers, fishermen and families who have varied interest is untenable and without legal basis. He contended further that the five named appellants came to Court as representatives of all persons of the community affected by the respondent’s wrongful act. There was no evidence showing or suggesting that any fisherman, farmer or family in the community owned or had exclusive right to the stream which defeats the claim of the community. No one made the case that the stream was owned separately by those mentioned by the learned Justices of the Court below to justify the conclusion reached by the Honourable Court. The learned senior counsel submitted that to commence separate actions as suggested by the learned Justices of the Court below will lead to multiplicity of action and that clearly defeats the object of Rules 1 and 3 which permits proceedings in representative capacity where all such actions can be settled in one action. He relied on Montgomery Vs. Foy Morgau & Co (1895) 2 Q.B 321 at 324; Newspaper Corporation Vs. Oni & Ors (1995) 1 SCNJ 218 at 233-236.<br< p=””

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Learned senior counsel referred to the case of Adediran Vs. Inter land Transport Limited (1991) 9 NWLR (Pt. 214) 155 and submitted that, it was patently wrongly relied upon and applied to this case by the Court below.

He contended that in the instant appeal there is evidence from PW6 and PW7 and Exhibit B, that members of the community who were fishing in the stream suffered a common grievance – which is the pollution of the community stream and dislodging of their fishing activities. He submitted that the relief claimed is beneficial to all and arose out of the same transactions and involved common questions of law and facts.

Learned senior counsel referred to the findings of the trial Court on the application of Adediran’s case (supra). He referred to the case of ELF Nigeria Limited vs. Sillo & Ors (1994) 6 NWLR (Pt.350) 150 which was prosecuted in a representative capacity and submitted that the facts upon which the case rest are similar to the instant. He observed that the case of ELF Nigeria Limited was cited to the Court below but no reason was given by the Court for not considering and applying it to the instant. He relied on Idoniboye

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Olu Vs NNPC (2003) 1 SC (Pt.1) 40 at 70; Adegoke Motors Ltd Vs. Adesanya (1989) 3 NWLR (Pt. 109) 250 at 265-200. Learned senior counsel submitted that, the appellants having shown communal right to the stream which was polluted by the respondent with the resultant loss and damage, the appellants were right in bringing the action in representative capacity and the Court below was wrong in holding that the appellants cannot prosecute their action in representative capacity and in striking out the claim as incompetent.

In conclusion, learned senior counsel urged the Court to hold that the appeal has merit and should be allowed.

In the brief of argument filed by the respondent, it adopted the sole issue distilled by the appellants with a slight modification as follows:

“Whether having regard to the pleadings of the appellants and the evidence adduced before the Court, the learned Justices of the Court of Appeal were right in holding that the appellants cannot prosecute this action in a representative capacity.”

In arguing the sole issue, learned counsel for the respondent anchored his submissions on paragraphs 1, 3,4,6,7,8,14 and 15 of the

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Amended Statement of Claim and the three (3) Valuation reports Exhibits E, H and G3 tendered by the appellants. He quoted the said paragraphs of the appellants’ pleading. He referred to paragraphs 1 and 16 of the Statement of defence where the respondent joined issues with the appellants on the competence and propriety of the action instituted in representative capacity as pleaded in paragraph 1 of the amended statement of claim. He referred to the testimony of PW3, PW6 and PW7 and contended that the evidence is very pertinent to the issue under consideration. PW3 is the author of Exhibit G3, as an Estate Surveyor.

Learned counsel referred to the findings of the trial Judge on the issue of representative action and its appropriateness or otherwise in the circumstances of the appellants’ action and the evidence adduced before the Court, which eventually led to the award of N50million as compensation to the appellants by the respondent. He referred to the findings of the Court below on the same issue of the appellants’ representative capacity in instituting the action as they did. He contended that with its findings, the Court below then came to the

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resolution that the appellants could not sue in a representative capacity as they had varied interests. Hence, the Court below held that the appeal had merit and it was allowed.

Learned counsel submitted that the Court below was right and correct in its application of the decision of this Court in Adediran Vs Interland Transport Ltd (Supra) and in setting aside the judgment of the trial Court and striking out the action for want of capacity of the plaintiffs to bring the action in a representative capacity.

On the application of Order IV Rule 3 of the Federal High Court, he referred to the decided cases which the Court below referred to and considered on the issue of representative action before coming to the conclusion that the appellants lacked competence to institute the action in representative capacity as they did. He referred to Order IV Rule 3 (supra) and the decision of this Court in Adediran’s case and submitted that the three requirements listed in the decision must coexist simultaneously or contemporaneously before a representative action can competently lie. He submitted further that the appellants in this case neither have a common

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interest nor common grievance in the suit, in that each of the 398 fishermen has a separate and distinct cause of action; each of the 797 families or households adversely affected by the pollution of their source of drinking water has a separate and distinct cause of action. He contended that it is not the whole Ekrusierho community that suffered all the same type of hardship arising from the said pollution of the stream. He submitted that loss of income is personal to each of the 398 fishermen for which each ought to have instituted his own separate action.

Learned counsel contended that the evidence of PW3, PW6 and PW7 when viewed alongside Exhibits E, G3 and H show that each fisherman retains his own catch or sells same to meet his individual family commitments; each individual household sources its own drinking water and fish ponds are individually owned. The appellants neither pleaded nor gave evidence that Ekrusierho community practices communalism. He referred to some decisions of appellate Courts on the institution of an action in representative capacity including Oragbaide Vs. Onitiju (1962) l ANLR 32; Busari Ayinde & 2 Ors Vs

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Adedokun Akanji (Bale Sagbo) & 9 Ors (1988) ANLR 59.

Learned counsel submitted that it is settled law that no representative action will lie to establish the right of numerous persons to recover damages collectively where each ought to sue and prove his or her individual losses or damages. He submitted further that Order lV Rule 3 of the Federal High Court Rules, 1990 which permits joinder of plaintiffs does not intend such a joinder where such plaintiffs should sue in their separate rights or where the injuries to them are separate or distinct.

Learned counsel referred to the case of ELF Nigeria Limited Vs. Sillo & Ors (Supra) which the appellants say is in all fours with the instant case, and submitted that the decision in the case is inapplicable to the facts of this appeal, in that, the issue that fell for determination of the Court was not the capacity of the respondents to sue in a representative capacity. The case was not fought by the parties on the issue of representative capacity and so is distinguishable and inapplicable to the instant appeal. He finally submitted that the learned Justices of the Court below were correct

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and justified in setting aside the judgment of the trial Federal High Court and striking out the action for want of capacity of the appellants to bring the action in a representative capacity. He urged the Court to dismiss the appeal and affirm the judgment of the Court below.

The appellants filed a reply brief of argument to the respondent brief of argument. He attempted to compare and distinguish each of the several decided cases cited by the respondent in its brief of argument with the instant case on appeal. Learned senior counsel submitted that this case is quite distinguishable with the long list of the cases cited by the respondent and they are not applicable. On the other hand, he concluded that the case of ELF Nigeria Ltd Vs. Sillo & Ors (supra) relied on by the appellants is applicable to and in all fours with the instant case hence he urged the Court to apply it and hold that the appeal has merit and ought to be allowed.

As earlier indicated, the action that culminated into this appeal was instituted by the appellants in a representative capacity, but the respondent as defendant joined issue with the appellants as plaintiffs at the

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trial Court. The appellants in paragraph 1 of their amended statement of claim filed on 01/9/97 claimed as follows:

1. The plaintiffs, are members of Ekrusierho Community in Ekakpamre and they bring this action for themselves and on behalf of other members of Ekrusierho Community, Ekakpamre in Ughelli South Local Government area , Delta State.”

The above averment was denied by the respondent in paragraphs 1 and 1(b) of the amended Statement of defence filed as follows:

“1. The defendant denies paragraphs 1,3,4,5,6,7,8,9,10,11,12,13,14 and 15 of the Statement of Claim and puts the plaintiffs to the strictest proof of the averments contained in those paragraphs.

1(b) The defendant will contend at the trial that the plaintiffs have different interests in the subject matter of the suit.”

Generally, the rule as to representative actions is said to have been derived, a long time ago, from the Court of Chancery, which required the presence of all parties to an action, so as to put an end to the matters in controversy. However, the practice was relaxed in due course since 1876 in Commissioner of Sewers of the City of London

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Vs. Gellantly (1876) 3 Ch.D 610 at 615, where the Court held as follows:

“Where one multitude of persons were interested in a right, and another of persons interested in contesting that right, and that right was a general right and it was utterly impossible to try the question of the existence of the right between that two multitudes on account of their number – some individuals out of the one multitude might be selected to represent one set of claimants and another set of persons to present the parties resisting the claim and the right might be finally decided as between all parties in a suit so constituted.”

However, this rule has been described as “a rule of convenience only.” See; Harrison Vs. Marquis of Abergavenny (1887) 3 TLR 324 at 325. Hence, as a rule that came into being only for convenience, and for the sake of convenience, it has been relaxed. See;Duke of Bedfor Vs Ellis (1901) AC 1 at 8. Therefore, it is a rule which should not be treated as rigid but as a flexible tool of convenience in the administration of justice. See; John Vs Rees (1969) 2 WLR 1294 at 1306, Chief P. O. Anatogu & Ors Vs. The Hon. Attorney

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General of the East-Central State of Nigeria & Ors (1976) 11 SC (Reprint) 59, (1976) LPELR – 483 (SC).

In this case, reliance was placed on the provisions of the Rules of Court in the commencement of the action in a representative capacity by the appellants against the respondent.

Order IV Rule 3 of the Federal High Court, Civil Procedure Rules provides as follows:

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 such or to defend in such suit for the benefit of or on behalf of all parties so interested.”

It is settled already that for an action to lie in a representative capacity, the following conditions or ingredients must exist:

(a) There must be a common interest;

(b) There must be a common grievance and;

(c) The relief claimed must be beneficial to all.

See; Adediran & Anor Vs. Interland Transport Ltd (1991) 9 NWLR (214) 155; (1991) LPELR 88; Elijah Idise & Ors Vs. Williams International Ltd (1995) 1 NWLR (pt.370) 142; (1995) SCNJ 120; (1995) LPELR – 1424.<br< p=””

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Generally, from the evidence adduced before the trial Court, upon review of the totality of the available evidence on record, the trial Court found on the facts that the appellants proved their case beyond reasonable doubt.

However, on the issue of the capacity in which the appellants instituted the action, the trial Court referred to the decision of this Court in Adediran & Anor vs Interland Transport Ltd (supra). The learned trial Judge relied on the said decision and came to the following conclusion, that:

“The plaintiffs from the inception of this case, i.e. from their writ of summons made no pretence about it. They emphatically claimed that the suit was about Ekrusieho stream which belonged to that community which has been polluted by the defendant thereby depriving them of the use of that stream for fishing, drinking and other domestic uses. Thus there is a common interest, common grievance and the relief claimed is beneficial to all……..

Their common interest is the river and their common grievance is the pollution of that river which has made them to lose income which they hitherto used in the education of their children. The

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outcome of the case, if it is in their favour will be used to mitigate the loss suffered by them as a community……..

l am convinced the plaintiffs did their homework properly and have proved this on a balance of probability.”

Judgment was accordingly entered in favour of the plaintiffs by the trial Court.

On appeal to the Court below, the Court, relying also on the same Adediran & Anor Vs. Interland Transport Limited (supra) and other decisions of this Court such as Oragbaide Vs Onitiju (1962) 1 All NLR 32; Busari Ayinde Vs Adedokun (Bale Sagbo ) & 9 Ors (1988) 1 NWLR (Pt.68) 70 on the issue of instituting an action in a representative capacity, had answered the question in the affirmative, namely, that the respondents could not sue in a representative capacity as the plaintiffs had varied interests, in that, some were fishermen while others were farmers and the community consisted of several family groups but not a single family. The Court below after considering the other issue raised by the respondent in the appeal in its unanimous decision concluded that the appeal was meritorious and was allowed. The action was then struck out for

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want of capacity in the appellants as plaintiffs to institute the action in a representative capacity.

There is no doubt, that in the main appeal to this Court from the decision of the Court below, the issue in dispute was narrowed down to the capacity of the appellants to institute the action as they did before the trial Federal High Court, hence the sole issue for determination.

As clearly shown on the record, this action was commenced at the Federal High Court in representative capacity by the appellants.

It is clear from the records that both Courts below, (the trial Federal High Court and the Court of Appeal) respectively which granted the appellants claim and the latter that allowed the appeal against the judgment, relied on the decision of this Court in Adediran & Anor Vs. Interland Transport Ltd. (supra). What then are the facts of the said case that led to the decision the Court took.

The facts of that case are that, plaintiffs are residents of Ire-Akari Housing Estate, lsolo. The residents have formed an Association, known as the Ire-Akari Housing Estate Association. With leave of the Court, plaintiffs brought an action on

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behalf of themselves and all other members of the Ire-Akari Housing Estate Association, at Isolo in Lagos State. The defendant, which is a Limited Liability Company with its registered office at No.9 Brickfield Road, Ebute-Metta, and the 2nd defendant also a Limited Liability company are owners of Plots 351, 352, 353, along Okeho Street, in Block VA of the Ire-Akari Housing Estate. Defendants are in the transport business. They own several long trailers. They use their premises in the Estate as their workshop and for parking their trailers. Consequently, there is considerable traffic of these long heavy trailers in the Estate, throughout the day and for most part of the night. The many drivers employed to drive these vehicles also park the trailers in the roads of the Estate making the road virtually impassable. In many cases they block the access roads to the houses of the residents. The complaint of the residents of the Estate is that the heavy trailers have rendered the roads unsafe for children, destroyed the roads and knocked down electric poles. The disturbing noise made by the drivers in the process of returning to park the vehicles and taking off

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early in the morning, constitute in addition to the other inconvenience activities, the nuisance complained of. After general protests to the 1st defendant, the Residents, who are the plaintiffs, brought the action.

After due trial of the claim on pleadings exchanged by the parties in the High Court, the claim against the 2nd defendant was dismissed by the trial Judge while the learned Judge, inter alia, held the 1st defendant liable for the tort of nuisance and awarded N20,000.00 as general damages. N30,000.00 was also awarded in respect of special damages. Perpetual injunction was granted, restraining the defendants by themselves or their directors, officers, servants or agents from using the said plots of land in Ire Akari Housing Estate, Isolo for transport business or any other industrial purpose. In his considered judgment, the learned trial Judge found that plaintiffs were members of the Association known as lre Akari Housing Estate Association. The action was instituted on behalf of all the members of the Association residents at Ire Akari Estate. Furthermore, after recounting the facts, the learned trial Judge, inter alia, found that these acts

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of nuisance which were continuous, constitute substantial discomfort to the plaintiffs and other members of the Association.

The defendant appealed to the Court of Appeal, on five grounds of errors of law and of facts. Eight issues for determination were distilled from the five grounds of appeal and argued. Out of the whole eight issues, the Court of Appeal considered only four issues 1,,3,5 and 7.

On issue (3), the Court below, citing and relying on Order 15 Rule 4 (2) RSC 1985 of England, applicable, submitted that not all those residents which were affected, were before the Court. Plaintiffs were bound to bring before the Court other residents of the Estate who are entitled to sue having suffered from the same acts of nuisance. Plaintiffs represented only members of the Association. Under the rules, the other residents should with their consent be made co-plaintiffs, or otherwise sued as defendants.

The main reason for the judgment of the Court below, inter alia, was that the claim was in respect of Public nuisance for which plaintiffs had no competence to sue. Plaintiffs claim was accordingly struck out. The plaintiffs then appealed to this

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Court on ten grounds of appeal. Six issues respectively were formulated by both parties but the issues were not dissimilar hence were considered together. However, the only issue that is most connected to the instant matter is the issue pertaining to the capacity of the appellants to sue as representatives and on behalf of all the members of Ire Akari Housing Estate Association. The Association is made up of the residents of the Housing Estate. The Court referred to Order 13 Rule 14 of the High Court of Lagos State Rules, Cap 52 of the Laws of Lagos State, 1972 which is, impari materia with Order IV Rule 3 of the Federal High Court, Civil Procedure Rules earlier referred to on the right to institute an action in a representative capacity. The plaintiffs were said to have complied with the requirement of the rules and were rightly accordingly granted leave to bring the action. But the bone of contention was whether the plaintiff had common interest in the action which they brought in the High Court.

This Court then opined that the fact that the plaintiffs suffered private nuisance had been settled and the learned trial Judge had found five different

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types of nuisance cause. However, the Court found that it had not been shown by the plaintiffs that all the residents of the Ire Akari Housing Estate were members of their Association. The Court then opined further that from the description of the nuisance caused by the defendant, the residents of the Housing Estate could not have suffered the same type of nuisance or inconvenience. Each and every resident must have suffered different kind of nuisance from the act of the defendant’s vehicles and employees. This Court held that by the provisions of Order 13 Rule 14 of the High Court (supra) the persons being represented and the persons representing them must have the same interest in the cause or matter. Not only that, the grievance which they all have must be common grievance. The same view was held in Adefulu vs Oyesile (1989) 5 NWLR (Pt.122′) 377 at 396. In that case, this Court held, inter alia, as follows:

“………..to bring a representative action……. It is essential that the representative in the action must have the same interest as the persons that he claims to represent. lf the interests as well as the grievance are common, a representative

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action would be in order, provided that the relief sought in the action is in its nature beneficial to those whom the plaintiff represents.”

This Court in Adediran’s case (supra) finally held that by the nature of the nuisance created by the defendants, the grievances of the plaintiffs and the persons in the Association they represented cannot be the same or common in all respects. The Court concluded that the trial Court was in error when it granted the plaintiff, in the first place, the leave to bring the representative action. The appeal was allowed in part and the action was struck out, since it was wrongly brought in a representative action.

In the instant case, learned counsel for the respondent had contended that, right from the inception of the suit, from the statement of defence, the respondent not wanting to ambush or take the appellants by surprise sounded an early warning signal that the representative action procedure adopted by the appellants was inappropriate, invalid and incompetent in the circumstance of the suit.

But the appellants paid a deaf ear to the warning.

On the issue of the capacity of the appellants, the

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respondent relied on the testimonies of PW5 and PW7 given under both examination in-chief and cross examination as follows:

PW5 on pages 81 and 82 of the record under examination in-chief

“I fish at a stream in Ekrusierho and is owned by Ekrusierho communityApart from fishing we use it for drinking, for bathing and washing our clothes… The fishes we got from the stream are for consumption, for sale and to cater for our children in education.”

Under cross examination PW6 testified further as follow:

“There are so many fishermen in our community that I cannot tell you the number, I know some of the fishermen in my community. The compensation will be paid to people affected according to the recommendation given by the community.”

PW7 in his examination in-chief testified, inter alia, as follows:

“I performed my fishing and farming in Ekrusierho stream… As a result of this discharge, we have not been fishing on the river. The discharge is still going on. It also affected vegetation along the stream i.e. Our rubber trees and cassava are not producing well again.”

Under cross-examination, PW7 stated, inter alia, as

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follows:

“…… The fishermen involved are very many, about 389. We sent our list through our consultants to seek legal advice of NEPA. I do not have a copy of the list. We submitted the list as stated above. The pollution affected me as I cannot fish and no water for domestic use.”

P.W3 as the author of Exhibit G3 testified at page 67 of the record, inter alia, as follows:

“I saw some fishermen about 10. They were not fishing but they introduced themselves as such. I said my assistants gave me a figure of over 300 fishermen…….. Compensation is to be paid to those who suffered losses. To note (sic) sure that the real people are paid, I put a proviso at page 5 of my report that before they are paid they must be identified physically………. The amount used in the report for each fisherman is for 1993. It can be the same figure for 1965. It was used as the figure available at the material time….. The report Exhibit G3 was on 300 fishermen and 600 people on water as at page 4 paragraph 11(a) and (b). That is 10% of the people using water from the river…… I used the 600 people as a conservative figure as the population was more.”<br< p=””

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From the report prepared by PW3, Exhibit G3, the appellants interests which were said to have been valued as excerpts from the pleadings, oral and documentary evidence before the Court are :

(a). Loss of fishing rights in the stream;

(b). Loss of fish ponds;

(c). Loss of drinking water and water for domestic purposes;

(d). Injurious affections and other related matters,

In Oragbaide Vs. Onitiju (1962) 1 All NLR 32, (1962) 1 SCN LR 70; the plaintiff had instituted an action for himself and on behalf of Ifetedo community, claiming an area of land as communal property. The evidence adduced by the plaintiff however showed that he and the others represented by him claimed to have each an individual farm of his own within the area in dispute. That meant that the whole community could not have owned the whole area as community land. The issue that came up before this Court was the appropriateness or otherwise of the representative action brought in the circumstances by the plaintiffs. The Court held that there was no common interest between the plaintiff (Olabode) and the people of Ifetedo, in that, on the evidence adduced for the

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plaintiff, it was plain that he and others claimed to have each an individual farm of his own within the area in dispute. The plaintiff could therefore not maintain an action on behalf of the people purportedly represented.

Also in Busari Ayinde Vs Adedokun Akanji (Bale Sagbo) & Ors (1988) 1 NWLR (Pt. 68) 70, an action instituted in a representative capacity by some plaintiffs for trespass and injunction alleged to have been committed on their separate portions of land was held to be improper and damages suffered by each plaintiff as well as each of those others, represented is different. This Court per Uwais, JSC (as he then was) later the CJN, opined as follows:

“It is very clear from the foregoing, the claims of the plaintiffs and the facts of this case, that it was improper for the plaintiffs to bring representative action for themselves and on behalf of the other 114 landowners. The various torts of trespass, if at all committed on the individual plots of the plaintiffs and the 1-14 land owners, did not arise from one transaction but series of transactions. In other words, there was no joint tort. The causes of action though similar are

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in fact distinct. In the same way no single award of damages or the grant of injunction can be made to the plaintiffs and the 114 land owners as they have different, though similar causes of action. Their interests are not therefore common. See: Amachree Vs. Newington 14 WACA 97.”

Considering and relying on the Ayinde Vs. Akanji’s case (supra) the court below opined that the question of the plaintiffs’ common interest with others being represented in the action was fundamental in the determination of the appeal and should be the same deciding factor in the instant appeal. For, if the appellants here had no capacity or common interest with other plaintiffs (namely the 7,959 inhabitants according to 1991 census figure out of which 300-369 are said to be fishermen as well as the farmers who had rubber trees to bring representative action, the said action before the trial Court would be vitiated. See; Markt & Co. Ltd V Knight SS Co. Ltd (1-910) 2 KB 1021 in which a number of miners had gotten drowned through the flooding of a mine. The personal representative of the deceased miners joined together and brought one action against the proprietors of the mine,

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claiming that the mine had gotten flooded through their negligence. The Court held that the plaintiffs could not bring one action in the circumstance.

In Shell Development Co. Ltd Vs Otoko & Ors (1990) 6 NWLR (Pt.159) 693 where the respondents had represented a certain communities in bringing an action against the appellant for oil spillage which they claimed desecrated their juju shrines and polluted their source of drinking water owned by them, killed their fishes and other living creatures and their economic life was adversely affected by the said pollution. The trial Court granted their claim but on appeal, the judgment was set aside allowing the appeal on the ground that the respondent did not have common interest in the suit they had brought in a representative capacity.

The Court below had distinguished the case of ELF (Nig) Limited Vs. Sillo (1994) 6 NWLR (Pt.350) 258, from the instant case, the former not having been decided on the capacity of the plaintiffs to sue in a representative capacity but whether they had the right to institute the action in view of the provision of Section 3(1) of Minerals Act, 1916, which vested property in

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and control of all minerals and mineral oils, in under or upon any lands in Nigeria and of all rivers, streams and water courses throughout Nigeria in the Crown.

As clearly shown in the evidence adduced, oral and documentary, there is no doubt in the instant case that certain acts of the respondents caused the pollution of Ekrusierho stream and this continuous pollution of the stream affected the fishermen, farmers and families in the community, the exact numbers of which could not be readily ascertained. In other words, the plaintiffs and those others that they claimed to have represented had varied interests. They in short did not have common interests in the effect of the pollution of the stream. In the same vein, their grievance also cannot be said to be common and the relief claimed by them for themselves and on behalf of others cannot be said to be beneficial to all. As a result, the Court below rightly followed and applied this Court’s decision in Adediran Vs Interland Transport Limited (Supra) in holding that the appellants lacked the capacity by which they brought the action before the trial Court. In other words, it follows therefore, that the

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trial Court was in error in granting the appellants leave, in the first place, to sue the respondent in a representative capacity as they did. The Court below was therefore right in allowing the respondent’s appeal and striking out the appellants’ suit before the trial Federal High Court.

In the circumstance, this appeal is unmeritorious, it fails and liable to dismissal. Accordingly, the appeal is dismissed and the judgment of the Court below delivered on 15/12/2004 is affirmed in setting aside the judgment of the Federal High Court as well as the award of N50,000,000.00 as compensation.

Now to the cross appeal.

There was a Notice of Cross Appeal filed by the respondent/Cross appellant on the 9th day of June, 2008. It has five grounds of appeal with particulars. On the 17th October, 2017 when the Cross appeal was argued, the cross respondents referred to their Notice of Preliminary objection to the Cross appeal, filed on 20/02/2017. Learned senior counsel for the Cross respondents adopted his cross respondents’ brief of argument and relied on paragraph 2.0 on page 1 to paragraph 2.2 on page 5 of the said brief of argument, to urge the Court to

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uphold the preliminary objection and strike out the cross appeal. However, learned senior counsel contended that in the event that the preliminary objection fails, he urged the Court to consider the cross respondents brief of argument filed on 20/2/2017 and dismiss the cross appeal for lacking in substance.

Learned counsel for the Cross appellant, Mr. Ezekwueche referred to his cross appellant’s brief of argument filed on 22/6/2012 but earlier deemed properly filed and served on 5/11/2012 and the cross appellant’s reply brief of argument filed on 25/11/2014. Both the cross appellant’s brief of argument and cross appellant’s reply brief of argument were deemed filed on 17/10/2017. He adopted both processes to urge the Court to dismiss the main appeal, overrule the Preliminary Objection and allow the cross appeal.

On the cross appeal, learned senior counsel contended that same is incompetent and void and that the Court has no jurisdiction to entertain same on any of the alleged grounds, of cross appeal. The said objection is argued in the cross respondents’ brief of argument.

He referred to the cross appeal and submitted that all the five grounds

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of appeal contravene Order 8 Rule 2 Sub-rules (2), (3) and (4) of the Rules of this Court. He referred to the said rules of Court and picked the grounds of cross appeal one after the other to come to the conclusion that there is no valid ground to sustain the said cross appeal, hence he submitted that the Court has no jurisdiction to entertain the incompetent cross appeal.

He urged the Court to strike out the cross appeal.

In responding to the cross respondent’s preliminary objection, the cross appellant referred to its reply brief of argument deemed filed on 17/10/2017. Learned counsel for the cross appellant submitted that the preliminary objection is misconceived and therefore incompetent.

Learned counsel conceded that it is settled law that a ground of appeal which complains of error in law but does not set out or has no particulars and nature of the error in law complained of, should be struck out. He relied on Osawaru Vs. Ezeiruaku (1978) 1 LRN 307; Tilbury Construction Vs. Ogunniyi (1988) 2 NWLR (pt.83) 64.

He submitted that grounds 1,2,3 and 4 of the Grounds of cross Appeal that alleged error in law all have their respective

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particulars of errors which adumbrated the nature and the precise error or errors being complained about, such that the cross respondents are not left in any confusion or misconception of what they are facing.

Order 8 Rule 2 Sub-rules 2, 3, 4 of the Rules of the Supreme Court provides as follows:

“(2) If the grounds of appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the ground upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

(4) No ground which is vague or general in terms which discloses no reasonable ground of appeal shall be permitted, save the general ground that the judgment is against the weight of evidence and any ground of appeal or any part thereof which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.

Generally, rules of Court are meant to regulate matters in Court and assist parties in the

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prosecution of their cases to achieve fair hearing and quick dispensation of justice, See; Solanke Vs Somefun (1974) 1 SC 141; Ibodo Vs Enarofia (1980) 5-7 SC 42; Aina Vs Aina (1986) 2 NWLR (Pt. 22) 316; John Vs Blakk (1988) 1 NWLR (Pt.72) 648. And rules of Court are meant to be obeyed and complied with by parties and the Court. See; Afolabi Vs. Adekunle (1983) 14 NSCC 398 405; University of Lagos Vs. Aigoro (1985) 1 NWLR (Pt. 1) 143.

However, the rule of our appellate procedure relating to formulation of grounds of appeal, has been held to be primarily designed to ensure fairness to the other party. And therefore the application of such rules should not be reduced to a matter of mere technicality, whereby the Court will consider the form rather than the substance.

In Alhaji Salami O. Aderounmu & Anor Vs Emmanuel Olajide Olowu, (2000) 4 NWLR (pt.652) 253; (2000) LPELR 141 (SC) this Court had opined as follows:

“The prime purpose of the rules of appellant procedure, both in this Court and in the Court of appeal, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the

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appeal, and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal, is to give sufficient notice and information, to the other side, of the precise nature of the complaint of the appellant and consequently, of the issues that are likely to arise on the appeal. Any ground that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form…… What is important in a ground of appeal, and the test the Court should apply, is whether or not the impugned ground shows clearly what is complained of as error in law and what is complained of as misdirection, or as the case may be, error of fact,”

I have carefully examined the five grounds of cross appeal filed by the cross appellant and the objection of the cross respondents. There is no doubt, that the grounds of appeal may not have been elegantly crafted but the substance of the complaint of the cross appellant is surely obtainable from the grounds of appeal. And the Cross respondents did not complain that they are left in the dark or confused as to what the complaints are all about. I consider the objection as

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lacking in substance and liable to being overruled. Accordingly, the preliminary objection is overruled. I shall therefore proceed to consider the cross appeal.

From the grounds of appeal filed by the cross appellant, the following two issues are formulated for determination.

Issue 1-:

Having regard to the pleadings and the totality of evidence adduced before the Court, were the learned Justices of the Court of appeal correct to have awarded N28,million as compensation to the cross respondents instead of dismissing the cross respondents claim in toto. (Grounds 1,4, & 5).

Issues 2

Whether the Cross respondents pleaded in their Amended Statement of Claim that they were claiming compensation from 1966-1993 and if not whether the Valuation Reports (Exhibits E, G3 and H) admitted in evidence by the Court are not at variance with the case set up by the Cross respondents (Ground 12).

The Cross appellant choose to argue the two issues together.

Learned counsel submitted that the Court below is in error in awarding the sum of N28,000,000 to the cross respondents having regard to the pleadings, law and the evidence adduced before

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the trial Court. He referred to the valuation reports of the alleged losses, admitted as Exhibits E, G3, and H. He referred to the findings of the Court below at page 491 of the record on two concessions that were made by learned Senior counsel for the respondents and contended that the learned Justices of the Court below after making a finding of fact that the Cross-respondents did not amend their statement of claim to ask for compensation from 1966-1993, and therefore the award of N50,000,000.00 as damages could not be justified yet succumbed to the allure of Exhibits, E, G3 and H in awarding N28 million as reasonable compensation. Learned counsel submitted that from the various findings by the Court below there was no basis for the Court below to again seek recourse to the same valuation reports, Exhibits E, G3 and H wherein compensation was worked from 1966-1993 to base the award of N28 million on as they did. He submitted further that the only course available in such a situation was to dismiss the Cross Respondents’ action for want of proof of their compensation.

Learned counsel referred to the claim of N150 MILLON for compensation and loss,

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consequent hardship, loss of source of income and destruction of vegetation pleaded in paragraph 1-5 of the Amended Statement of Claim is in the genre of special damages which ought to have been specially pleaded and for which strict proof is required. He contended that since special damages, unlike general damages must be strictly proved, the learned Justices of the Court below erred in awarding special damages based on the same Exhibits E, G3 and H that were already discredited since the Cross Respondents did not ask for compensation from 1966-1993 in their amended Statement of Claim.

Learned counsel contended that the resort to ascertaining the mean between the three awards recommended in Exhibits E, G3 and H is arbitrary, unempirical and amounts to an award predicated on rule of the thumb in a situation where the valuation reports are inapplicable because they covered the period of 1966-1993 which period was not pleaded in the amended Statement of Claim.

Learned counsel gave a poser that – on what basis were the said Exhibits used to arrive at the compensation of N25 million awarded by the Court below He submitted that, where, as in this case,

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the Cross respondents fielded two Expert witnesses to do a statistical quantification or valuation of their losses from 1966-1993 and arrived at various sum of money in the valuation reports, the damages have become crystallized and precise in terms of mathematical figures, undoubtedly, that is special damages. He contended that the said Exhibits were all prepared before the suit was instituted. He relied on Mcgregor on Damages. 13th Edition pase 923. item 1382 (b) – page 927, Badmus Vs Abegunde (1999) 7 SC (Pt.1) 78 at 81 and 82. He submitted that the course of ascertainment of damages by the learned Justices of the Court below employed in this case is patently wrong in law. He relied on Dumez Nigeria Ltd Vs Ogboli (1972)All NLR (Reprint) 241

Learned counsel submitted that based on the findings of fact made by the Court below at page 491 lines 12-21 of the record, there is nowhere in the Amended Statement of Claim and Reply to Amended Statement of Defence that the cross respondents pleaded that they were claiming compensation from 1966-1993.

Learned counsel referred to paragraph 3 of the amended Statement of Claim, where the Cross Respondents

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averred that it was sometime in 1991 that they found that Cross appellant’s waste oil chemical from the power station were channeled unto their land and Ekrusierho stream thereby polluting the said land and stream. He contended that since the cross respondents never asked for or claimed compensation from 1966-1993, it was wrong for the Court to have awarded compensation to them on the basis of the valuation Reports- Exhibits E, G3 and H wherein compensation was worked from 1966.

Learned counsel submitted that it is settled law that parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings go to no issue and should be expunged from the records or disregarded. He relied on Chief Victor Woluchem & Ors Vs. Chief Gudi & Ors (1981) 5 SC 291 at 320; George Vs Dominion Flour Mills (1963) All NLR 77; Adejumo Vs Ayantegbe (1989) 3 NWLR (Pt.110) 417.

He submitted that the learned Justices of the Court below were wrong not to have expunged or discountenanced Exhibits E, G3 and H in their judgment, rather they predicated their award of N28,000,000.00 on the said Exhibits which predated the cause of action.

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He urged the Court to set aside the judgment sum of N28,000,000.00 awarded by the Court below as reasonable compensation to the cross respondents and in its stead dismiss the cross respondents case intoto. He finally urged the Court to allow the cross appeal.

In responding to the cross appeal, the cross respondents distilled a sole issue from the grounds of appeal filed by the cross appellant. The said sole issue as couched encompassed the two issues formulated and argued together by the cross appellant.

Learned senior counsel for the cross respondents referred to the claims of the Cross respondents in paragraph 15 of the amended Statement of Claim. He contended that it is clear from the pleadings that Cross respondents’ claim sounds in compensation as general damages. And that the alternative relief put the matter beyond doubt, as no special damages was intended to be claimed.

He contended that the principle observed by the Courts in the award and assessment of general damages is settled. Courts have been empowered under their inherent jurisdiction to grant a claim for general damages if, the liability of a defendant is established. He relied on SPDC Vs

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Pere Cole (1978) 3 SC 183 at 194. He submitted that such general damages (unlike special damages) do not require proof.

General damages flow naturally and consequentially from a finding of liability on the part of a cross appellant for tortous acts committed by it. He relied on Union Bank of Nig. Plc Vs. Ajabule & Anor (2011) 12 SC (Pt.100) 25.

Learned counsel contended that there is no dispute as to liability of the cross appellant for the pollution of the cross respondents’ communally owned stream. He referred to the findings of the learned trial Judge on page 220 lines 19 & 28 of the record on the liability of the cross appellant on the pollution caused by it and contended that there was no appeal against that finding of the trial Court. He contended further that having found the cross appellant liable for polluting the cross respondents communally owned stream, the learned trial Judge was entitled to consider what a reasonable person would regard as reasonable compensation flowing from the cross appellant’s conduct. This does not necessarily depend on calculations made and figures arrived at from specific items.

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Learned senior counsel submitted that as the cross appellant’s liability has been established, the cross respondent was not obligated to prove general damages. He submitted further that documents put before a Court to enable it form its opinion as to what measure of general damages are to be awarded merely serve as guide. Courts are not bound to limit themselves to such documents and may in fact disregard the said documents where appropriate and form their own opinion as to what reasonable compensation/general damages taking into account the conduct of the defendant whose liability has been established.

Learned senior counsel submitted further that it is for the Court, using the materials (Exhibits E, G3 and H) at its disposal, to work out what it considers in the circumstances to be reasonable compensation. And that, cross appellant did not appeal against the finding of the learned Justices of the Court below that Exhibits E, G3 and H were properly admitted in evidence in the case.

Learned senior counsel referred to the arguments of the Cross appellants in its brief of argument on Exhibits E, G3 and H but contended that the

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argument was misconceived, in that the cross respondents’ claim fell within the pleaded facts used as a basis for the calculation of compensation in exhibits E, G3 and H, that is, from 1991 onwards. He submitted that the Court below was right to resort to Exhibits E, G3 and H as guide in the determination of what it considers to be reasonable compensation in a claim for general damages.

He urged the Court to disregard the arguments put forward by the cross appellant as same is unmeritorious and to dismiss the cross appeal for lacking in merit.

As earlier noted, this is a cross appeal by the appellant who is the successful party in the Court of Appeal, who is averse to some part of that Court’s decision. The cross appellant had challenged the decision of the trial Court which was given in favour of the cross respondents on several grounds including that the action which was instituted by the cross respondents in representative capacity was incompetent, in that those they claimed to represent have no common interest with them. When upholding the argument of the cross appellant, the Court below, allowed the appeal and struck out the suit for lacking incompetence. The Court

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below however went further to consider the award of damages made as compensation to the cross respondents. This is, what is being challenged in this cross appeal as the cross appellant felt aggrieved.

There is no doubt and it is clear from the record that the cross respondents in paragraph 15 of their amended Statement of claim generally claimed as follows:

“Plaintiffs claim the sum of N150 million being compensation and loss suffered by plaintiffs as a result of the continuous pollution of the said Ekrusierho stream and the consequent hardship, loss of source of income and destruction of surrounding vegetation or, in the alternative, Plaintiffs claim the sum of N150 million being damages for nuisance, negligence and or breach of statutory duty.”

From the record, the findings of both the trial Court and Court below is that the cause of action, which was the pollution of Ekrusieho stream was noticed by the community in 1991.

Indeed on page 214 of the record, the trial Judge in the Court’s judgment found as follows:

“The facts of the case as pleaded and given in evidence were that sometimes in 1991 the plaintiffs

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observed that the defendant’s Delta Power Station in Ughelli situated on the Plaintiffs’ land had during its operations been sending our (sic) waste oil/chemicals and these channeled through the defendant’s drainage system and discharged into plaintiffs’ land and Ekrusieho stream thereby polluting the said land and stream.”

The learned trial Judge in his judgment went further as follows:

“PW6 and PW7 categorically averred that each used to fish on the Ekrusieho Stream before 1991 and that Delta Power Station was situated on their land”

It is also on record that the Cross respondents commissioned registered Surveyors to assess the extent of damage done to the land and stream in question and this is contained in the Valuation Reports produced by the Cross respondents and admitted as Exhibits E , G3 and H. There is no doubt that all the Valuation reports on the pollution of the said stream covered the period between 1966-1993. It is clear from the record that the trial Court as guided and of course based its assessment of reasonable compensation on the valuation reports in Exhibits E, G3 and H. On record, in Exhibit E dated 3/7/1993 and Exhibit H

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dated January, 1995, compensation payable to the Cross Respondents was put at N30million respectively. In Exhibit G3, Compensation for the Cross Respondents’ losses was put at N24million. However, in resolving the issue, the Court below made the following findings on page 491 of the record, and page 16 of the judgment.

“Two important concessions were made by the learned counsel for the respondents and they are: (1) The respondents did not ask for compensation from 1966-1993 in their amended Statement of Claim, and

(2) The Respondents did not plead or claim special damages.

The question to be asked is: is the award of N50 million as general damages reasonable in the circumstances Since the respondent did not amend the Statement of Claim to ask for compensation from 1966-1993, the award of N50 million as damages cannot be justified.

The Court below went further in its finding on page 492 of the record, inter alia, as follows:

While Exhibits E and H put the compensation payable to the respondents at N30miIlion, Exhibit G3 on the other hand, gave an estimate of N24,705,000. The assessment made by the learned trial Judge for the payment of N50,000,000 was

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predicated on the value of the Naira which has continued to deteriorate… The reasonable compensation which could accrue to the respondents if the action is properly instituted is to consider the mean between the three awards being recommended in Exhibits, E, G3 and H.”

From the above, it is clear beyond any doubt that the Court below based its award of N28million payable to the cross respondents as reasonable compensation on the valuation Reports in Exhibits E, G3 and H which reports covered period between 1966-1993 far beyond the period covered by the cross respondents claim.

As clearly shown earlier, the Court below was right in its findings that the cross respondents in their amended statement of claim did not claim compensation from 1966-1993 and that they did not plead or claim special damages. However, with the greatest respect, the Court somersaulted in conclusion by relying on the same valuation reports which covered beyond the cross respondents’ claim, in awarding compensation which they considered reasonable in the circumstances. It was, to say the least, wrong for the Court below to have relied on the said

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valuation reports which recommended compensation covering 1966-1993 whereas cause of action accrued in 1991. The period covering 1966-1993 was not pleaded by the cross respondents and the said valuation report had been prepared before the action was instituted at all. Having arrived in the valuation report at certain figures of compensation due to the cross respondents before the matter went to Court, that has rendered their claim as special damages. It is trite law that “where the precise amount of a particular item has become clear before the trial, either because it has already occurred or so becomes crystallized or because it can be measured with complete accuracy, this exact loss must be pleaded as special damages” See; Mcgregor on Damages, 13 Edition at pages 923 and 927.

It is note worthy that the valuation reports in Exhibits E, G3 and H which were relied on by both Courts below are at variance with the pleaded facts and the evidence adduced by the cross respondents before the trial Court. These Exhibits, in my view, ought to have been disregarded and not relied on by the Court in assessing or computing any reasonable compensation due to the

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cross respondents having been shown to contain more than pleaded or claimed.

In Ganiyu Badmus & Anor Vs Abegunde (1999) 7 SC (Pt.1) 78 at 81; (1999) LPELR 715, this Court opined as follows on this particular issue:

“But where a plaintiff sets out to adduce evidence in proof of the special damages claimed by him and the evidence being deficient or unsatisfactory is rejected by the Court that should put an end to the claim. The trial Judge is not entitled to embark upon his own assessment of the special damages using his conceived parameters in place of evidence…. so in no circumstance can a General damages be properly substituted for special damages which a plaintiff has failed to prove or even if he has led evidence on it, did not infact make any claim for it” See also, African Shipping Agency vs. kalia (1978) 11 NSCC 114 at 120.

As earlier stated, it is evident on record that the trial Court relied on the valuation reports in Exhibits E, G3 and H in arriving at the sum of N50 million it awarded in favour of the cross respondents as reasonable compensation for their alleged losses etc. This was rightly adjudged by the Court

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below to be wrong and was so declared, not having been contained in their amended Statement of Claim. However, the Court below unfortunately fell in the same error by relying on the same unpleaded facts to assess and compute the compensation it thought was to be awarded, assuming that the action had been properly instituted by proper parties and the claim is properly made.

In the final analysis, this Court comes to the following conclusion:

(a) That the cross respondents having conceded that they did not plead that the pollution which is their cause of action started in 1966 but the award of N28,000,000.00 as compensation predicated as it were on Exhibits E, G3 and H is wrong and therefore perverse.

(b) The Court below having held that since the cross respondents did not amend their statement of claim to ask for compensation from 1966-1993, the award of N50million cannot be justified, fell into the same error and relied on the said Exhibits E, G3 and H to make its award of N28million in favour of the cross respondents instead of discountenancing the said Exhibits totally.

(c) No award can justifiably be made in law to cover a period when

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the cause of action had not arisen. In the instant case, the cause of action is said to have arisen in 1991 but the scientific Laboratory test which established pollution was only done in 1994.

The sum total of what I have been saying is that this cross appeal has merit and deserves to be allowed. The appeal is accordingly allowed. The award of the sum of N28 million by the Court below in favour of the cross respondents is set aside.

There shall be no order on costs.

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SC.151/2006