Seismograph Service (Nig) Ltd V. Chief Keke Ogbenegweke Eyuafe (1976)

LawGlobal-Hub Lead Judgment Report

IDIGBE, JSC. 

This appeal is from the judgment of the High Court of the former Midwestern State holden at Sapele in Suit S/9/70 awarding in favour of the respondent the sum of £430 (N860.00) as damages in a claim by the respondent against the appellant which reads:  

“The plaintiff’s claim against the defendant is for the sum of £10,000 (ten thousand pounds) being special and general damages suffered by the plaintiff when, at Oghara bush during the months of August 1968 and August 1969, the defendant negligently cause damage or permitted damage to be caused to the plaintiff’s private roads totaling 23.79 miles in length, which private roads are situate and lying at Oghara bush aforesaid within the jurisdiction of this Honourable Court”.  

PAGE| 2   Briefly, the case for the respondent, who claims to be a member of the Oghara Community, is that about seventeen years ago prior to the 1st day of June 1972, when he gave his testimony in the present proceedings he at his own expense constructed several roads – indeed about fourteen in number – into Oghara bush or farmlands in order to facilitate the evacuation of palm fruits collected by him in Oghara bush from the said bush to the “Cowan Oil Palm Estate” located at Ajagbodudu Village.

The authorities of the Cowan Oil Palm Estate (hereafter referred to as “Cowan Estate”) always provided him vehicles for this purpose and plied the roads in question as and when the need arose. These roads which, as the respondent claims, were maintained exclusively by him were his own “private roads” (i.e. private property); they are shown on plan GA272/71 prepared by a Licensed Surveyor – George Arinze Obianwu (P.W.1) – dated 3rd October 1971, (Exhibit A), covering a vast area of as much as 46.05 acres of the said Oghara bush and leading to various villages and locations, miles apart and, in divers directions. In August 1968, and 1969, the appellants “negligently damaged or caused to be damaged” the said “private roads” by driving or causing to be driven over them “very heavy vehicles carrying various weights of iron materials”.

As a result of the said damage the respondent could not evacuate his palm fruits “as effectively as he used to before the said damaged was caused” and consequently he suffered loss in trade.  

According to the respondent, Oghara bush or farmland is the communal property of the Oghara community. There were some attempts between the parties at extra-judicial settlement of the respondent’s claim which failed and, in the course of the abortive negotiations, there were exchanges of correspondence by which the appellant “admitted liability for damage to the plaintiff’s private roads” and offered monetary compensation for the said damage.

Some of these correspondence were received in evidence as Exhs. C, D, E and F.    The appellants in their defence averred that the road covered by their operations “is only about 8 miles distance and ……. clearly (denied) having anything to do with plaintiff’s roads …..”. Further, while admitting that their operations within the area “is purely survey work involving the use of light vehicles”, the appellants denied making use of heavy equipments or materials for the purpose, and they put the respondent to strict proof of the several “particulars of negligence” set out in his Statement of Claim. The “particulars of negligence” had claimed, inter alia, that:   “(1) the appellants placed on the said private roads vehicles “whose weights were far more than the said private roads could bear and as a result the said roads were damaged”. (2) the appellants drove the vehicles “on the said roads without paying any or sufficient regard to the condition of the said roads”.  

PAGE| 3   (3) the appellants failed to prevent damage or take “proper or sufficient care or precaution to avoid damaging or causing damage to (the said) private road”. (4) the appellants caused or permitted their “heavy vehicles to sink into the said roads and in trying to get out, or pull out the said heavy vehicles caused severe damage to the said roads”.”  

With regard to the abortive negotiations for extra – judicial settlement and the correspondence thereon the appellants case was that negotiations were entered into out of a desire on their part to maintain “goodwill” in the area and that offers for compensation were made to the respondent “ex-gratia and without admission of liability”; their principal witness in the course of his testimony denied that the roads in question were the “private roads” of the respondent.    

It should, we think, be pointed out that hardly any evidence was led by the respondent to establish (1) ownership or exclusive possession of any portion of the area of land through which these “private roads” pass; on the contrary the evidence on record is that the entire Oghara bush is the communal property of the Oghara people; (2) nor was any evidence led to establish any of the particulars of negligence pleaded.

There is not the slightest suggestion in the evidence of the respondent that the entry by the appellants on these roads was unauthorised; on the contrary the very meagre evidence led on this aspect of the case was that of excessive use – i.e. the appellants brought heavier vehicles on these roads; (3) nor did the respondent lead any evidence to establish that he has a palm plantation of his own in the said bush from which he collects palm fruits; on the contrary what evidence there is on this aspect of the case was given by his third witness (P.W.3 Johnson Era Tejerho). His evidence on the issue reads:   “I am the Estate Manager (of Cowan Oil Palm Estate, Ajagbodudu).

I know the plaintiff as a purchase part agent. He sells fruits collected from wild palm trees to the company. We record figures of his production …. (brackets and underlining supplied).   It is clear from Exh.A (plan of the area involved in the present suit) that the roads in question lead to several villages and locations which are far from contiguous to one another and there is no evidence as to whether these villages (among them, OKWEMETA, EBIUWEH, OTEFE, ADOGBEYELI) indicated on Exh.A form part of the Oghara Community. In the course of his evidence the respondent stated as follows:   “I am not the owner of the land on which the roads are built.

The land belongs to the Oghara Community …. Members of the community go along any of my roads but on their legs. I have no sign boards showing that certain vehicles cannot go on the roads ….” The significance of these observations will appear later in this judgment.  

PAGE| 4   The argument of learned counsel for the appellant may thus be summarised. The respondent is not the owner of the land on which these roads were constructed and in the absence of any special licence for exclusive use of the roads, he could not maintain an action for damages for trespass to the roads in question. (2) There is no evidence that the respondent has an easement over any portion or portions of the land and that the roads were constructed pursuant to such an easement and, in any e

Other Citation: (1976) LCN/2242(SC)