Seismograph Service Ltd v. Benedict E. Onokpasa (1972)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C.

In Suit S/29/68 the plaintiff/respondent sued the defendant/appellant at the High Court of Sapele in the Mid-Western State for special and general damages to the Trinity College buildings at Okwidiemo of which the respondent was the proprietor. The endorsement to the writ of summons reads:-

CLAIM

The plaintiff’s claim against the defendant is for the sum of 40,000.00pds (forty thousand pounds) being special and general damages for damage caused by the defendant to the plaintiff’s eight college buildings, namely, one block of 12 class rooms, one block of 4 class rooms, one dormitory block, one assembly/dining hall and kitchen block, the Principal’s house, the Principal’s kitchen, latrine building and one piggery house at Okwidiemo within the Sapele Judicial Division when between May and June 1968, the defendant carried out seismic operations near the plaintiff’s aforementioned college buildings at Okwidiemo which shook the said buildings to their very foundations and caused the said damage.

On the completion of hearing, Ekeruche 1 on 29th October, 1969 gave judgment for plaintiff in the sum of 24pds,2 14 17s 11d as special damages for trespass. The defendant has therefore appealed to this Court.

It was conceded by both parties that the learned trial judge was clearly in error to have found the claim in trespass and that the proper cause of action is one for nuisance.

The issue that was joined at the trial was whether the seismic operations carried out by the defendant company prospecting for oil caused the extensive damage to some buildings which plaintiff claimed to have erected to house a college under his proprietorship.

The plaintiff claimed that his damaged buildings comprised of “a block of 12 classrooms (two storey) uncompleted, erected at a cost of 4,000pds, one block of 4 classrooms valued at 2,500pds, one dormitory block valued at 3,500pds, one assembly/dining hall and a kitchen block valued at 2,400pds, Principal’s house valued at 1,250, outhouses valued at 230pds and a piggery house erected at a cost of 500ps.” He gave evidence also that prior to the “shooting operations” the defendant company sent one Ossai to inspect his buildings and submit a report of his inspection. He further stated that on completion of defendant’s “seismic operations” the college buildings were inspected by an official of the defendant company. According to the plaintiff this official made a report of his inspection and promised that the defendant company would make good all the damages to the college buildings. He contended that it was as a result of some vibrations from defendant’s “seismic operations” that the college buildings were damaged.

The defendant company on the other hand in its amended statement of defence admitted sending assai to the premises of the college but not for inspection; he was to check on the distance from the college premises to any point that would be safe enough for the “shooting operations” that were to be carried out by the defendant. The defendant required the information as it was in a position to know what distance is safe for any “shooting operations” using a particular type of explosive charge. After ascertaining this the defendant company then commenced its shooting operations. It is the case of the defendant that whatever damages the college buildings suffered were not in any way connected with the shooting operations carried out by its workmen.

The relevant portions of the pleadings on which issues were joined are, so far as the statement of claim is concerned, as follows:-

8. A few days after Paul assai’s pre-shooting inspection workers of the defendant company came into the college compound, walked into the adjoining bush, and started the shooting operations around the school premises.
9. The four nearest shot-points as shown on the markings on posts on the points marked by the defendant are ‘S.P. 228’ which is about 266 yards from the Principal’s house, outhouses and the fourclassroom blocks. Another, ‘S.P.’ (Post recently removed by the defendant company) is about 291 yards from the Assembly/dining hall block, the piggery block and the hostel block. The uncompleted two storeyed classroom block is equidistant from the two shot-points above referred to.
10. The two other shot-points are S.P. 120 and S.P. 328 which are about 300 yards and 400 yards respectively from the compound but are on the other side of the premises and almost opposite the first two shot-points.
11. Shooting exercise was carried on by the defendant’s workers on several points including the four nearest shot-points referred to above at various times during the months of May and June 1968. At each point several seismic shots were fired. They averaged five a day and lasted for about three weeks.
12. At each blast or shooting there were vibrations of the buildings and the ground around. During this period classes were disturbed by the boomings and vibrations which went to the very foundations of the buildings.
13. On one occasion the tremor caused by these heavy shootings were such that the beams carrying the roof of class V (that is the uncompleted 12 classroom block) were fractured in several places and a hugh piece of the concrete broke away and fell down narrowly missing a student’s head.
14. So serious is the damage done to class V building (that is the uncompleted 12 classroom block) that the building has been declared dangerous and out of bounds to students. Classes are since being held in the Library and under tree shades. The building operation was forced to be stopped and the promised building aid from the Ministry of Education could not be pursued.
15. The nature of damage done to all these buildings described in paragraph 2 by the defendant’s aforesaid operations are vertical and horizontal cracks. These cracks occur to the walls without following lines of the mortar joints. The cracks cut across the blocks either horizontally or vertically and are at strategic points in the buildings. Where the cracks are neither vertical nor horizontal, they are scattered in all directions from a point on the wall. These are shattering cracks.
16. The plaintiff will contend at the trial:

(i) That these cracks are dangerous in nature and different from those described in the dormitory and the four classroom blocks in paragraph 5 above.

(ii) That these cracks are symptoms of shock which affected the buildings right from the ground.

(iii) That the cracks to the walls indicate that the foundation concrete for the different buildings have been fractured by the shock and vibrations which emanated from the shooting operations at the various points referred to above.

(iv) That as a result the buildings are now human traps in their present condition and are no longer fit for human habitation.

(v) That these buildings though now still in position, will sooner or later collapse on their fractured foundations and must be rebuilt.

The defendant’s reply to the averments referred to above are contained in paragraphs 7 to 13 of the amended statement of defence. In these paragraphs the defendant company averred:-

7. With regard to paragraph 8 of the statement of claim the defendant avers that the company’s surveyors, drillers, shooters and observers went into the bush adjoining Trinity College premises Okwidiemo at various times.
8. The defendant denies the allegations contained in paragraph 9 of the statement of claim and avers that the properties mentioned in the said paragraph and their distances from the various shot points are as shown in survey plan No. OM. 2762 prepared by Mr. O.E. Omoregie licensed surveyor. The defendant will at the trial found on the said survey plan.
9. The defendant denies paragraph 10 of the statement of claim and avers that the only shot point on the other side of the premises (that is, on the left hand side while standing on Warri/Sapele Road and facing Sapele) is about 2,470 feet away from the dormitory. This shot point is shown on survey plan No. OM. 2762 referred to in paragraph 8 hereof.
10. With regard to paragraph 11 of the statement of claim the defendant admits that the shooting exercise was carried on by its employees at several points shown on survey plan No. OM. 2762 during the months of May and June, 1968, but makes no further admissions as to the rest of the said paragraph .
11. The defendant denies damaging plaintiff’s property and is not in a position to admit or deny the other allegations contained in paragraph 14 of the statement of claim.
12. The defendant denies paragraph 15 of the statement of claim and avers that some of the cracks on the buildings follow the slope of the blocks and do not cross them, while others radiate from the corners of the windows. The defendant will contend at the trial that these cracks were due to constructional weaknesses.
13. The defendant denies all the allegations contained in paragraph 16 of the plaintiff s statement of claim and puts the plaintiff to very strict proof thereof.

In order to determine the crucial point as to the cause of the damage to the plaintiff’s buildings, the plaintiff called evidence to the effect that the cracks to the buildings were symptoms of shocks which had gone right to the ground; that the concrete foundation had been fractured by the shocks and vibrations of the shooting operations of the defendant. The defendant on the other hand called evidence in support of its contention that the seismic operations which were carried out at Okwidiemo between May 1968 and June 1968 could not have any connection with the alleged damages or cracks to the Trinity College buildings. The defendant company also relied in support of its contention on plan No. OM. 2762 exhibit 14, which showed the relative positions of service lines to the Trinity College buildings; on various records of shootings at different points as shown in exhibit 13. The contention of each party is of a technical nature and therefore such evidence as could support it must necessarily be that of people specially qualified in the particular field of science which in this case comprised of the knowledge and practice of seismology and civil engineering. It is on the examination of such evidence as is considered relevant that a determination must be arrived at as to the cause of the damages alleged.

Counsel had canvassed many grounds of appeal before us but it is our view that this case can be resolved on the issue of causation and consequential liability. On this issue he had argued extensively his second ground of appeal which reads:-

2. “The learned trial judge erred in law and on the facts in holding that, ‘the cracks and damage to the plaintiff’s buildings were caused not by faulty construction…but by the disturbance of the foundation of the house’ when:-

(a) such a finding is not supported by the evidence of the plaintiff’s witnesses and is negatived by the evidence of the witnesses for the defence; and

(b) the finding aforesaid was based upon conjecture and not upon facts proved or inferences therefrom.”

It is counsel’s contention that the appellant had called expert evidence which proved that damages and cracks on respondent’s buildings were not caused by the shooting operations carried out by the appellant at its site at Okwidiemo. He argued that such evidence as had been put forward by the respondent had not been that of experts and they therefore are irrelevant in the determination of the cause of the damage and cracks. The learned trial judge regarded the witnesses called by each party as to the cause of the damage as experts. He believed the evidence of the “experts” called by plaintiff as to the cause of the damage and therefore gave judgment for the plaintiff. The judge did not expressly reject the evidence of the experts called by the defendant but impliedly did so; because on a visit to the site, he observed certain cracks, which were not referred to in evidence before him, and substituting such observations as proved facts proceeded to infer that the cracks he observed were caused as described by respondent’s experts.

We consider it pertinent at this stage to refer to this portion of the judgment where the learned trial judge stated thus:-

“During the period of adjournment,” (for judgment after the addresses of counsel) “having perused the entire proceedings in the course of wanting to write the judgment, I found that in view of the expert evidence adduced by either side as to the cause of the cracks in the walls of plaintiff’s buildings and the evidence as to the value, it was necessary for me to visit the college premises to inspect the buildings in order to find out which side was speaking the truth.”

The counsel for the appellant contended, and quite rightly in our view, that it must be accepted, that the learned trial judge had impliedly found that on the completed evidence before him the plaintiff had not established the liability of the defendant. At that stage the learned trial judge should have dismissed the plaintiff’s claim.

The judge did not do this but decided to visit the college premises, inspect the buildings “in order to find out which side was speaking the truth.” On the visit to the premises the judge recorded his observation of the cracks which he itemised under six heads.,He described the number of cracks, the extent of such cracks as going to the foundation which was thereby disturbed and extensive damage to the walls. On these observations the judge proceeded to determine the cause of the cracks. This, it must be remembered, was done after the close of the case by both sides and when what remained was the judgment. In the circumstances whilst the learned counsel did not question the right of the judge to visit the premises, he contended that he treated his notes and findings as real evidence when counsel were never shown them or allowed to comment on them. The learned counsel referred us to the case of Goold v. Evans (1951) 2 T.L.R. page 1189 as to evidentiary value of observations at a view. Before dealing with the relevant portions of the judgment to which our attention was drawn, we wish to refer to sections 75 and 76 of the Evidence Act which is applicable in the Mid-Western State which deal with oral evidence and the question of what evidence is admissible consequent upon a view of the premises. There are two provisos to the section 76 and we consider that proviso (ii) to subsection (a) Covers the point being contended.

It reads:-

“Oral evidence must, in all cases whatever, be direct:-

(a) if it refers to a fact which could be seen, it must be the evidence of a witness who says she saw that fact;

PROVIDED

………………………………….”

(ii) if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute.

In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject-matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place of sitting or to some other place of sitting, or the Court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards … ”

In Nwizuk v. Eneyok (1953) 14 W.A.C.A. page 354 it was held:-

“(1) The court did not cease to be a court when on inspection and the statements were as much oral admissions by a party in court as if they had been made in a courtroom and could be taken into account as such.

(2) The absence of a record of the inspection is not fatal; statements by the judge in a solemn judgment must be taken as a correct account of what occurred.”

This case is distinguishable from the present one on appeal. There was no dispute as to what the court held in paragraph (2) above in the case of Nwizuk v. Eneyok (supra). The difference is that the learned judge in that case during inspection took statements in which the parties had admitted giving false evidence at the trial, and on these admissions dismissed the plaintiff’s case. In his judgment, the judge gave an account of his inspection and mentioned the admissions. In this case the judge inspected the premises, and in his judgment regarding the inspection stated “The notes and findings are as follows:-” After itemising the cracks he found or observed other than the cracks given in evidence by both parties, he proceeded to regard such observations as established facts and used them as such. This he did in his comments on the evidence of the defendant’s 5th witness, who was called to give expert evidence, and whose evidence as to the cracks he observed on the uncompleted classrooms was not challenged at the trial; the learned judge had this to say in his judgment:-

“said cracks here were only in the suspended concrete floor. Said there were no cracks at all on the walls. This last statement is a lie because in the very room there was a fire crack running through the entire height of the crosswall from top to the ground floor and this crack was through the wall because it could be seen on the other side. Also there were cracks on other walls in the block.”

Obviously in this portion of the judgment the learned trial judge was using his view as real evidence. This clearly is contrary to the provisions of the proviso (ii) to section 76(a) recited above especially this portion which reads:-

“the court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards. ”

If, as the learned trial judge had done, he was treating his view as “findings”, then this amounts to real evidence and according to our law this could only be done on the evidence received at the scene or in court; and parties must be given the opportunity of hearing the additional evidence through a witness and where necessary offered the opportunity of cross-examination and for counsel to comment. It is therefore clear that the learned trial judge had erred in regarding his view as “findings” when considering other evidence before him in his judgment.

As stated in Goold’s case referred to above our attention has been drawn to certain portions of the judgment but it is enough for a support of the principle of law we have expressed about a view to quote what Hodson L.J. said at page 1191:-

“I would like to put slightly differently what has been said about a view…Mr. Croom-Johnson has, I think rightly, contended that a view is not in itself evidence. A view does not do away with the necessity for evidence.”

We have dealt with this aspect of this case extensively, because in view of our conclusion in this appeal, it will finally determine the rights of the parties. This disposes of ground 2(b) of the appeal.

In ground 2(a) appellant’s counsel has contended that the learned trial judge erred in law in holding that “the cracks and damages to the plaintiff’s buildings were caused not by faulty construction … but by the disturbance of the foundation of the house.” This contention is founded on the point that has to be resolved, whether the evidence given by plaintiff’s “experts” does fall within the provisions of section 56 of the Evidence Act and therefore becomes relevant facts.

The plaintiff relied on the evidence of one Josephus Theophilus John, who described himself as a civil engineer and licensed surveyor, one Godwin A. Etuwere who described himself as a research officer under the firm of A. T. & P. (Nigeria) Ltd., and physics master, St. Malachys College, Sapele, and one Christopher Ikweke who described himself as Principal A.S.B. Trade Centre, Sapele. On the ground that such evidence as was called by plaintiff on this point was not the opinion of experts and such evidence therefore becomes irrelevant and should be rejected.

With regard to Mr. John, he gave evidence that since he qualified in 1926 he had concentrated mainly on survey work and as a matter offact had not done any civil engineering work since 1929. As to Mr. Etuwere, he has no practical experience of civil engineering as he is a research officer and admitted that he was not a geo-physicist. Christopher Ikweke gave evidence that he studied estate management in the University of Nigeria at Nsukka, but did not obtain any degree.

He also gave evidence that he had never by himself erected or constructed a building. His only experience was that on an occasion as a student he took part in the erection of a building. As against the three expert witnesses called by the plaintiff the defendant company also called three witnesses: The first one John Edward Charles Medlock is a geo-physicist and works under the defendant company. He kept records of the particular shooting operations of May and June 1968 at Okwidiemo in the neighbourhood where the plaintiff’s buildings known as Trinity College are situated. He gave evidence that the dynamite used was between five pounds weight and ten pounds and tendered the relevant record book as exhibit 13.

He also tendered the plan of their service lines (shooting points) showing their relative positions to the Trinity College buildings. This plan was tendered in evidence and marked exhibit 14. The second witness called was one Sikiru Olatunbosun Oke who is a chartered structural engineer. He inspected the premises of the Trinity College and gave his opinion as to the cause of the cracks on the buildings. The third witness called was Lan Chestine. He is a seismologist. He has had seven years experience of seismic work, three of which are in Nigeria. He had carried out shooting operations in Onitsha, Nembe/Brass area of the Rivers State and around Burutu, Bomadi in the Mid-Western State.

The learned trial judge in considering the evidence of these witnesses did not resolve whether they were experts or not. Section 56, subsections (1) and (2) of the Evidence Act which is applicable in the Mid-Western state provide as follows:-

(1) When the court has to form an opinion upon a point of foreign law, native 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, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.

The four witnesses called by the plaintiff and whose opinions the learned trial judge accepted as proving the cause of the damages to the plaintiff’s buildings cannot be said to be that of experts. On the other hand, the defendant company had called witnesses who are specially skilled in their fields of science and who come within the definition of experts in section 56, sub-sections (1) and (2) of the Evidence Act. We are of the view, therefore, that if the learned trial judge had applied the correct test he would have come to the conclusion that the only expert opinions before him were those of the defendant’s experts, and so unless for good reasons otherwise should have accepted them. We may in this respect refer to the case of United States Shipping Board v. The Ship St. Albans [1931] A.C. page 632 and at page 642 where Lord Merrivale in delivering the judgment of the Privy Council stated inter alia thus:-

“The question of the evidential value of the testimony of the three expert witnesses for the defendants depends in like manner upon ascertained limitations which define the power of judges to accept opinions of witnesses as proof of matters of fact.

The extent to which the opinions or conclusions of skilled persons are receivable by way of proof in point of fact has not been seriously in doubt from the time when, in 1782, in Folkes v. Chadd [1782] 3 Doug. 157, Lord Mansfield stated the grounds on which the evidence of Smeaton, the famous constructive engineer, was to be admitted upon a disputed question of obstruction to a harbour: ‘ the opinion of scientific men upon proven facts may be given by men of science within their own science.’ Another Chief Justice, Lord Russell of Kilowen, explained the rule in a modern case of Reg. v. Silverlock [1894] 2 Q.B. 766, 771. The witness must have made a special study of the subject or acquired a special experience therein. ‘The question is,’ Lord Russell said, ‘is he peritus; is he skilled; has he an adequate knowledge’

In reinforcing this principle we would like to refer to section 76(d) of the Evidence Act which provides:-

“Oral evidence must, in all cases whatever, be direct:-

(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.”

It is therefore, clear that the only expert evidence that the learned trial judge had before him was that of defendant’s experts; these show that the defendant was not responsible for the damage caused to buildings. Ground 2(a) of appeal is therefore upheld. Although other grounds were argued before us, we do not think it necessary that they should be considered, since on grounds 2(a) and (b) the appeal should be allowed.

The appeal therefore succeeds. The judgment of Ekeruche J. in suit No. S/29/68 given at the Sapele High Court on 29th October, 1969 and the costs awarded are hereby set aside. We therefore enter judgment for the defendant. The plaintiff’s claim in the High Court is dismissed with 100 guineas costs and in this Court the defendant/appellant is awarded 94 guineas costs.

Appeal allowed.

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SC.73/1970