Seismograph Service (Nigeria) Ltd.v. Esiso Akporuovo (1974)

LawGlobal-Hub Lead Judgment Report

G. S. SOWEMIMO, J.S.C. 

The respondent, who was the plaintiff in suit UHC/34/7O, sued the appellant company at the Ughelli High Court of the Midwestern State. The case was tried by Ogbobine J., who delivered a judgment, awarding the respondent a sum of 3,942:8s:0p. for the three buildings and two houses allegedly destroyed by defendant/appellant company as a result of some seismic operations at Umolo Village. The appellant company has lodged an appeal against the judgment delivered on 30th December, 1971.

The claim in the writ of summons reads;

“Plaintiff claims from the Defendant the sum of 4,392:5s:6p. (four thousand, three hundred and ninety-two pounds, five shillings and sixpence) being compensation due Plaintiff from the Defendant for damage done by the Defendant to Plaintiff’s property in Umolo Village, Olomu Clan in Eastern Urhobo Division, within the jurisdiction of this Honourable Court in the course of Defendant’s seismic operations on what it described as “Ughelli 47″ through the said Umolo Village sometime in 1966”.

On the pleadings filed before the learned trial judge, issues were joined on the following:

(1) Was the defendant/appellant by its seismic operations responsible for the destruction of the three houses and two out-houses of the plaintiff/respondent at Umolo Village sometime in 1966

(2) Were these three houses and out-houses actually destroyed as alleged by the plaintiff/respondent along with many household belongings as set out in the Statement of Claim

(3) On the issue of damages was it proved as pleaded that an expert valuer estimated the value as alleged

In his Statement of Claim the plaintiff avers:

“4. On this plaintiff’s piece of land he erected three residential buildings and two blocks of out-houses sometime in 1974.

5. The three buildings and two out-houses owned by the plaintiff were as follows:

“(a) A mud wall building comprising four bedrooms and four sitting-rooms each room was floored with cement concrete, all ceilings made of asbestos sheets and building’s roof made of corrugated iron sheets.

(b) A building with cement-plastered walls comprising three sitting-rooms and four bed-rooms, each floored with cement concrete, all ceilings made of asbestos sheets and building’s roof made of corrugated iron sheets.

(c) A building with cement-plastered walls comprising three sittingrooms and four bed-rooms, built with the same materials mentioned in (b) above.

(d) An out-house comprising three rooms each with walls plastered with cement.

(e) An out-house with cement-plastered walls comprising four rooms.

6. Sometime in 1965, plaintiff left Umolo Village to the then Eastern-Nigeria, now known as East Central State, in furtherance of his business as Trader, where he remained until until February, 1967 when he returned to Umolo.
7. Sometime during plaintiff’s absence between 1965 and 1968 defendant carried out seismic operations at and through Umolo Village and did shootings at points near to plaintiff’s buildings at Umolo aforesaid.
8. Defendant’s said shootings and seismic operations carried out near plaintiff’s residential buildings and houses aforesaid at Umolo Village shook the plaintiff’s said three buildings and two outhouses and damaged the buildings.
9. Plaintiff’s 8 room building and the outhouse comprising 4 rooms collapsed and fell from the shakes of the shooting.
10. Four out of the seven rooms in the second building collapsed and fell down too and the walls of the remaining three rooms thereof are so cracked that these rooms are now too dangerous to live in.
11. The third building and the second outhouse had their walls so badly cracked to the extent that these walls fall at unexpected intervals and so rendered unsafe and dangerous to live in.
12. The cracks on the buildings so described above are such that the buildings cannot be properly repaired to the point of being safe for occupation without the respective buildings being pulled down completely or almost completely pulled down.
13. In the buildings, plaintiff had some movable propeny which were also damaged as a result of the defendant’s shootings and these property include a big iron pot, six plates, six tumblers, six photo frames, twenty four grammaphone records a grammaphone and a lamp globe.
14. As a result of the damage aforesaid, plaintiff was obliged to find alternative accommodation for himself and his family at great cost to him on his return from the East in 1967. Plaintiff also incurred expenses in trying to reach settlement of the compensation due with the defendant.
15. The shaking from the shootings was such that some buildings lying farther away from the shotpoints behind plaintiff’s buildings aforesaid were cracked and damaged by the shootings. Evidence may be led at the hearing that compensation were paid by defendant to owners of buildings lying fanher away from the shotpoint behind plaintiff’s building for damages arising from the shooting aforesaid.”

In answer to the plaintiff’s averments about the cause of the damage to his buildings, the defendant/appellant company avers in its amended Statement of Defence thus:

“4. Defendant admits carrying out seismic operations at Umolo between 1965 and 1968 but denies the allegations in the remainder of paragraph 7 of the Statement of Claim.

5. Defendant stoutly denies allegations contained in paragraphs 8, 9, 10, 11, 12, 13, 15 and 16 of the Plaintiff’s Statement of Claim and will at the trial put the Plaintiff to the strictest proof thereof.
6. In further answer to paragraphs 8-16 of Plaintiff’s Statement of Claim, the seismic operations by the Defendant at Umolo between 1965 and 1968 cannot have any casual connection with the alleged damage to Plaintiff’s buildings and movable propeny at Umolo having regard to weight of dynamites used and the distance between the shotpoints and the said buildings. The Defendant will at the trial rely amongst other things on:

(a) A survey planing showing the positions of Plaintiff’s alleged buildings relative to the surrounding seismic lines and shot points.

(b) The Defendants several record books relating to the said operations.

“(c) “The Hazard of Structural Damage from blasting operations.”

(d) “Geophysical Exploration” by C.A. Heiland, Sc.D.

(e) Blasting Seismology by P.R. Berger.

(f) Blasting and Associated Vibrations by CA.Teichman and Westwater Engineering Journal, 1957, J.C.I. Publication.

(g) Latest Development in U.S. Bureau of Mines related to Damage Cretorion by Leonard Obert.

(h) Building Research, by the British Ministry of Technology.

(i) Vibrations in Building (Papers 1 and 2) by the British Ministry of Technology.”

The learned trial judge resolved the issue of liability thus:

“It is common ground that the defendants carried out seismic operations in Umolo area in 1966. Although Exhibit B which was the Survey Plan of the area of the shot lines showed only one or two lines, the evidence of Jeremiah Johnson (3rd d.w.) which I accept is that there were many shot lines, although he could not remember the number of such lines. In such circumstance the comprehensive map from Lagos which they followed in their shooting should have been produced to show the actual seismic lines and not the survey plan, Exhibit B prepared for this case by Mr John. That plan from Lagos should have been incorporated into Exhibit B in order to show the actual location of plaintiff’s houses in relation to the shot points. The other imponant aspect of plaintiff’s case which cannot be easily neglected was the evidence of John Dekuma (1st p.w.) who said that he was paid for a crack on the wall of his house by the defendants as result of their seismic operations at that time in Umolo area. He also gave evidence that other claimants were paid compensations for damages done to their properties by the defendants.

The defendants have not seriously denied or challenged this piece of evidence which was contained in paragraph 16 of the Statement of Claim. In that paragraph, the plaintiff stated as follows:

“16. The shaking from the shootings was such that some buildings lying farther away from the shot points behind plaintiff’s buildings afore said were cracked and damaged by the shootings. Evidence may be led at the hearing that compensations were paid by the defendants to owners of buildings lying farther away from the shot point behind plaintiff’s building for damages arising from the shooting aforesaid.” .

This paragraph was generally denied along with others in paragraphs 5 of the Amended Statement of Defence and in paragraph 6, they had only this to say, namely,

“6. In further answer to paragraphs 8-16 of plaintiff’s Statement of Claim, the defendants avers that the seismic operations by the defendant at Umolo between 1965 and 1968 cannot have any casual connection with the alleged damage to plaintiff’s buildings and movable property at Umolo having regard to weights of dynamites used and the distances between the shot points and the said buildings”

“It is obvious that apart from the mere denial in paragraph 5 of the Amended Statement of Defence the substance of the averment in paragraph 16 of the Statement of Claim with regard to payment of compensations to people whose buildings were damaged was not satisfactorily answered. This does not appear to satisfy Order 13, Rule 11 of the Western Nigeria High Court (Civil Procedure) Rules 1958 which is in these term”

It must here be stated, that the reference where the learned trial judge made to High Court rule and the pleading is inapt. We are of the view that both the statement of claim and the amended statement of defence were carefully drafted in order to bring out clearly the issues joined by the parties for which a judicial decision was required.

These are the facts before the Court. The plaintiff, in his evidence, said that he built three houses and two out-houses before he proceeded to YENOGOA (somewhere in the former Eastern Nigeria) in 1964 and returned in 1967 when the civil war broke out. On his return to Umolo village, he saw that all his buildings as well as many others had fallen down. The walls of his houses were made of mud and whattles and plastered with cement. The floors of the three dwelling houses were also plastered with cement.

On information received on his return from Yenogoa in 1967, he and a solicitor went to the office of the defendant/appellant company at Umutu in 1970. As a result of the visit, a lands-man in the employ of the respondent, by name Mr. Gordon, visited the premises allegedly destroyed. As a matter of fact this man was in charge of the seismic operations at Umolo in February, 1966. During his visit in 1970, he found that the buildings of the respondent were standing with one or two normal cracks, due, in his opinion, to fair wear and tear.

The other witness called by the defence is one Theophilus John, a licensed surveyor, who made out a plan of the area showing the shot points. According to him, the buildings of the plaintiff were still standing. He also informed the court of a portion of the building where the mud-wall on a side had dropped off. Such a happening in his opinion, was normal for a mud building because it had no foundation. He also gave evidence of some cracks on the mud-walls due to nonnal fair wear and tear.

At this stage, the learned trial judge was faced with two conflicting evidence as to whether or not the buildings were standing or not. The learned trial judge could have resolved this conflict by a visit to the site at Umolo village. For reasons, which did not appear in the proceedings, the learned trial judge did not resolve the issue. It is absolutely necessary, we wish to emphasise, that in view of the conflicts, the issue can only be resolved in this case by a visit to the scene-see Section 76 (a) of the Evidence Act Cap. 62 and in particular the second proviso to that Section. The matter, as to whether the buildings had collapsed as averred and given in evidence by the plaintiff, and on the other hand, the averments and evidence of defence witnesses that the buildings are still standing, remain unresolved. We wish to point out, that the learned trial judge’s remarks that he believed the evidence of the plaintiff and his witnesses did not resolve the issue, and, in the peculiar circumstances of this case, it could not have been a conclusion based on an appraisal of the evidence led by the defendants as well. The issues were directly raised in the pleadings and as such the evidence of the defendant must be evaluated.

During the hearing of this appeal, learned Counsel for the appellant/company submitted for our consideration, the proceedings and judgments arising out of claims by two persons from Umolo village against the same appellant for similar claims filed by the same learned Counsel for the respondent in this case and counsel for the plaintiffs in the case viz:-Suit No. UHC/35/72. The proceedings were marked Ex. A and at page 15 during the course of the inspection, Ovie-Whisky J., who dealt with the case recorded thus:

“At 11 a.m. the parties to the case, their Counsel and left the Ughelli High Court premises of the Plaintiff at Umolo at 11.50 a.m.

“The plaintiff conducted us round his house in respect of which suit No. UHC/35/72 was instituted. We found the house occupied and filled with items of furniture. It is an old mud and whattle house. Its mud walls were plastered with cement while the roof was covered with corrugated iron sheets. It has what the plaintiff called three sitting rooms and three bed-rooms. The largest sitting room was about 14 feet by 10 feet in dimension. The other two were smaller. The largest bed room was about 10 feet by 8 1/2 feet. The other two bed-rooms were much smaller. We found the house intact. There is a small store where the plaintiff sells provisions in front of the large sitting room. There was no evidence that the house was sinking. We did not find any fallen walls. The plaintiff admitted at the site that he was living in the house with his family and that all the items of furniture in the house were his own.

“There was a crack in one of the walls in the largest sitting room which he occupies and also a crack on a wall of the bedroom adjacent to this sitting room.

There was also an out-house in the compound which the plaintiff claimed as his own. It is a small hut built of mud and whattle. Its mud walls were not plastered with cement. The roof is covered with corrugated iron sheets. This small out-house has two apartments used as kitchens and we actually found the wives of the plaintiff cooking in them. The out-house was intact and no evidence of damage or violence was seen on it.

We found a house built of cement blocks about 30 yards from the plaintiff’s house and a mud and whattle house, the walls of which were not plastered with cement, close to the plaintiff’s house. We found no evidence of violence or cracks in any of these houses. There was no evidence of damage or cracked walls on the mud and whattle house.

Learned Counsel for the plaintiff, Mr. Ideh, told the plaintiff in our presence to produce the pieces of nine tumblers, one lamp globe, nine plates and the big mirror which he said were broken and which he did not put in evidence when he testified in the Court. The plaintiff went into his bedroom and came out with one broken plate and enamel cup which was not damaged although dirty and a small piece of ordinary glass. His counsel looked at him and asked him to take them away.”

“A similar case to Suit No. UHC/35/72 in which Mr. Ideh is counsel for plaintiff and Mr. Ajuyah counsel for the defendants came up for hearing today also. It is Suit No. UHC/22/72 Umukoro Olomutabere v. Seismograph Service (Nigeria) Limited. Since the plaintiff was claiming damages done to his house in the course of the defendant’s seismic operations in the same U molo Village, it was agreed by counsel to both parties and the Court that the houses involved should be inspected to avoid a second visit to Umolo.

We were conducted to the houses of the plaintiff in that case where we discovered that the plaintiff died sometime ago. The houses were situated in two compounds about 70 yards from one another. They were all old, mud and whattle buildings, covered with old corrugated iron sheets. Their walls were not plastered with cement. One of these mud houses with an out-hut were situated in a compound while two other old mud huts were situated in the second compound. None of the houses had their floors made of cement concrete. None of their ceilings was covered with asbestos.

There was no evidence of violence and cracks on any of the old and rough mud walls of any of the houses. We found the three old houses occupied by people.”

The order subsequently made was in respect of UHC/35/72 with which most of the proceedings in Ex. A were concerned. The subsequent proceedings and order read:

“COURT: At this stage mr. Ideh applies for leave to withdraw this case from Court.

Mr. Ajuyah does not object to the application withdraw the case but says that the claim should not be dismissed.

RULING

Leave is hereby granted to the plaintiff to withdraw this suit from Court. The case is hereby struck out. It is hereby ordered that the plaintiff shall not bring any other suit against the defendants based on the same grounds of action as this one.”

In the case UHC/35/72, the same conflict of evidence occurred as in the present case on appeal, the learned trial judge decided to resolve the issue by visiting Umolo Village and it was found as a fact that the buildings were still standing. Perhaps if Ogbobine J. had adopted this procedure in resolving the conflicting issues in the case before him, he might have found the visit to the scene of useful benefit. It is perhaps pertinent to remark that although the learned trial judge, in this case, refused to allow the special claims for some articles allegedly damaged in the buildings as they were not produced in court, he however, allowed the claims for the damaged buildings, which, in view of the conflict in evidence before him, he did not see and cannot categorically say were damaged.

Our attention was drawn to this peninent ponion in a judgment of the Awka High Court delivered by Aseme J. in Suit No. 0/29/66 on 27/4/72, in a claim for damages against the present appellant company. The learned judge in his closing remarks had this to say:

“At the conclusion of plaintiff’s case, I visited the locus in quo in the company of both counsel, the plaintiff and the defendants. The plaintiff later in Court gave evidence on oath as to what he showed the Court during the visit. The visit was very rewarding for it exposed the false evidence of the plaintiff and his witnesses as to the nature of the alleged damage to this building. The plaintiff and his witnesses had given the impression in their evidence that the building was totally damaged and un-inhabitable and that the cracks were so open that one could see through them. But plaintiff’s evidence of the view showed that none of the cracks is open. They were merely hair cracks. Furthermore the marking of the hair cracks on the exterior walls was in red chalk but in his evidence the plaintiff had said the workers of the defendants marked the cracks with red paint. I was satisfied that the plaintiff and his witnesses were very unreliable and they they had each testified before me with the sole aim to deceive the Court. From the foregoing findings the plaintiff’s claim is hereby dismissed.”

There is the other aspect of this case. The defendant called a seismologist to give evidence. The evidence read:

“D.W.4 ALISTAIR. MCMILLAN SOUTER,

Sworn on Bible and states in English.

I am British. I live at Amai in Ukwuani District. I am a Seismologist in the service of the defendant Company. I graduated with a B.Sc from Aberdeen in Geology. I have been with Seismograph Service for seven and a half years. I have worked in U.K., Holland, Denmark and I came to Nigeria in april 1966. I have worked in the Midwest and Rivers States,and in the Delta area of Nigeria producing oil. I am familiar with the soil and buildings in the areas where I have worked in this country. In our Seismic work we use different types of dynamites. Our seismic operations in this Country are conducted into the ground at a distance of 50 feet to 100 feet into the ground. If a dynamite of 10 lbs weight is fired into the ground between 50 feet and 100 feet the actual shot wave produced is so small that it will not damage any premises literally on top of the shot point. If the dynamite was on the surface of the ground there would be a greater air blast and the noise would be much greater. It would blow up the cavity and create a depression on the ground. It could destroy property up to 20 feet away. The view I have fonned is contained in several literature. The dynamite is at the bottom before it is exploded or shot and that makes it very safe. For a distance of 600 feet it would be necessary a dynamite of 300lb to create on ground movement of an inch.

COURT: In view of the special nature of this evidence I shall adjourn Mr. Ideh’s cross-examination of this witness to 23/12/71.”

In the cause of the present proceedings, the 3rd defence witness, who was one of those who carried out the shooting operations of February, 1966, at Umolo Village gave evidence. He stated inter alia as follows:

“I have been to Umolo village and did some work there. We went there for experimental shooting in February, 1966. The shooting was underground; the depth was sixty feet. The weights of dynamites we used were 1 1/2 lbs to 101bs. The plaintiff did not come to us to complain that his house was damaged. Nobody complained that his house was damaged. We keep records of our shots; they were lost during the crisis. I know d.w.2. I showed him our line known as Ugheli 47 and the places where we fired the shots. XXD: BY IDEH: We have line traces, and we shoot along the line. The shot points are marked on the line. The map which we follow is usually sent down from Lagos. The light traces are useless after the shooting and we throw them off. What I keep is the shooter’s report which is prepared by me. We also have a map of the area from Lagos and we do not throw that away. I do not know what the office does with my report. We had many lines in Umolo area, but cannot remember the number. I only remember Ughelli 47. I do not know whether there were other shootings in Umolo area after February 1966. Compensations are not paid in my presence. I do not know whether people are paid in the bush or in the office as that is not part of my work.”

The evidence of the 4th defence witness is that of an expert. He knows the soil and therefore his opinion is relevant and deserved consideration we think that since the expert opinion has not been challenged, or in the language of the learned trial judge, seriously challenged, it could have been considered as the only evidence on the issue of liability so far as the seismic operations are concerned.

Learned Counsel for the appellant, with leave of Court filed and argued the following grounds of appeal:

SCHEDULE

“1. Judgment is against the weight of evidence.

2. The learned trial Judge erred in law and on the facts in not considering and or failing to accept the evidence of defence witnesses such as J.T. John, Jeremiah Johnson and Mr. Suoter even on those parts of their evidence which were not challenged in cross-examination or contradicted by evidence given on behalf of the plaintiff.
3. The learned trial Judge erred in law and on the facts in accepting and acting upon evidence to the effect that the Defendant paid 3 (::N6.00) to one Mr. John Dekuma when such evidence was inadmissible or (if admissible) was of no probative force in the circumstances of this case.

IN THE ALTERNATIVE

4. The learned trial Judge erred in law and on the facts in awarding special damages to the Plaintiff in the sum of 3,942:8s. (7, 884.80) when

(a) There was no proof of primary facts from which either the diminution in value of the plaintiff’s buildings or the cost of repairs or reinstatement of the same can be inferred by the court;

“(b) There is no warrant in law for assessing damages claimed in an action of this nature on basis of of cost of erection.”

On the issue of liability, learned Counsel for the appellant has contended that the learned trial judge was wrong in treating the evidence of the expert witness called by the defence as academic. After his evidence in chief, the learned trial judge had considered the evidence of the expert “of special nature”and without any application from learned counsel he (the learned trial judge), adjourned the case for eight days, to enable learned counsel for the plaintiff to cross-examine him.

We are in complete agreement with the learned Counsel for the appellants that the evidence of plaintiff did not establish the liability, if any, of the appellant company. This, in our view, is a case where the learned trial judge ought to have visited the locus in quo in view of the conflict in the evidence of the parties. We are satisfied, that on the conflict of evidence before him, it was necessary that the conflicting issues should be resolved by a visit to the scene. The failure of the learned trial judge to do so in this case, has caused to be undecided the issue as to whether those buildings were ever damaged at all. The plaintiff averred in paragraph 21 of the Statement of Claim thus:

“21. Before taking this action, plaintiff engaged the services of Messrs. Franklin Ideh & Co., professional Valuers of No. 10 Okere Road, Warri to assess the damage to his propeny. The valuation of Mr. Franklin Ideh of the said Company will be founded upon at the hearing of this action.

22. Value of each of plaintiff’s propeny damaged by the defendant in the course of their seismic shootings at Umolo Village aforesaid is as follows:

(a) 1st building damaged (8 rooms) 1,210:

(b) 2nd building damaged (7 rooms) 1,228:12:

(c) 3rd building damaged (7 rooms) 1,106:12:

(d) 1st out house damaged (4 rooms) 220:

(e) 2nd out house damaged (rooms) 178:4:

(f) 6 plates 4/- each damaged1:4:

(g) 1 big iron pot damaged 14

(h) 6 tumblers damaged 2/- each 14::

(i) 6 photo frames damaged – 6/- each -:12:

(j) 24 gramophone records damaged 6/-each 1:16:

(k) 1 gramophone 16 7:4:

(l) 1 lamp globe 5 / 16::

(m) Transport for plaintiff and his -:5:

Solicitor at defendant’s request 12::

(n) Expenses incurred by plaintiff for 95: 16:6

alternative accommodation etc 95: 16:6

TOTAL: 4,392:5:6

Although this averment was made and no witness was called in suppon, the learned trial judge did not adven his mind to this in his consideration of the issue of damages, in view of the fact that the defendant/appellant company had made an issue of it.

It seems clear that the learned trial judge, had failed to evaluate the evidence properly, and appellant company had shown that they were not in any way liable to the plaintiff.

We are of the view that a proper consideration of the provisions of Sections 134 to 148 of the Evidence Act Cap. 62 and the cases decided on them, would have been rewarding in this connection and undoubtedly the learned trial judge would have come to a different conclusion.

On the whole this appeal succeeds and it is allowed. The judgment of the Ughelli High Court in Suit No. UHC/30/7O delivered 30/12/71 with its award of costs is hereby set aside. The claim in that suit is hereby dismissed. This shall be the judgment of the Court. The appellant company is awarded N108 in the Court and in the lower Court against the Plaintiff. These shall be the orders of this Court.

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Other Citation: (1974) LCN/1910(SC)