Seismograph Services (Nigeria) Ltd. v. Robinson Kwavbe Ogbeni (1976)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, Ag. J.S.C. 

 In the High Court of Justice of the Mid-Western State of Nigeria, holden at Ughelli, the plaintiff/respondent by his writ of summons taken out on the 22nd day of July 1971, claimed from the defendants/appellants “the sum of 1,000pounds (one thousand pounds) special and general damages for nuisance caused by the defendants, their servants or agent in the course of carrying out oil exploratory exercise of exploding the oil testing chemicals around the region of plaintiff’s building which said explosion wrongfully caused or permitted excessive noise and vibration which damaged plaintiff’s/respondent’s building.” Pleadings were ordered and delivered.

The case later came before Ogbobine, J., for trial. He heard the evidence of the plaintiff and his two witnesses as well as the evidence of the six defence witnesses who were called by the defendants. After hearing the address of counsel for the parties, he on the 27th day of October 1972, gave a considered judgment in which he found in favour of the the respondent and awarded him 350pounds damages with 60 guineas costs.
Against this decision, this appeal has come before this Court on the following grounds (substituted for the original grounds by order of this Court).
(1) Judgment is against the weight of evidence.
(2) The learned trial judge misdirected himself in law and on the facts in accepting the evidence that the defendants carried out seismic operations in February 1969 at Iwhrekan.

PARTICULARS OF MISDIRECTION

(i) Apart from the plaintiff himself, no other witness testified that seismic operations took place in February 1969, as the learned Judge seemed to have thought; and

(ii) The learned Judge gave undue consideration to the fact that the statement of defence did not mention the month in which the defendants in fact carried out seismic operations thereby overlooking the fact that they were entitled to lead evidence as they have done in the absence of a demand or request for particulars of the relevant part of the statement of defence by the plaintiff’s Solicitor.

(3) The learned trial judge erred in law and on the facts in rejecting the positive evidence on behalf of the defendants to the effect that the operations were carried out between 23rd April and 1st May 1969.

PARTICULARS OF ERROR

(i) The best evidence of whether the operations took place in April and May is the evidence of eye witnesses to the event. Accordingly, the testimony of the 5th and 6th witnesses ought not to have been rejected when such evidence was not challenged in cross-examination.

(ii) The said evidence was amply corroborated by documentary evidence before the court especially exhibits ‘D’, ‘E’ and ‘F’; and

(iii) The learned judge’s refusal to place reliance on exhibits ‘D’, ‘E’ and ‘F’ arose out of his misconception of the effects of the evidence of the witness Woodluff.

(4) The learned trial judge erred on the facts in refusing to accept the evidence of the 5th and 6th defence witnesses in regard to the weight of the dynamite used when none of the said witnesses was cross-examined on the point during the trial.

(5) The learned trial judge erred in law and on the facts in failing to observe that the plaintiff did not discharge the burden of establishing that the alleged vibrations caused the damage to his building.

(6) (1) The learned trial judge erred in law and on the facts in deciding to accept the evidence of the plaintiff and his witnesses that damage was in fact caused to the plaintiff’s house when there was direct evidence from the defendants’ witnesses that no damage occurred or could have occurred.

(2) In the face of such direct conflict of evidence, it is not possible for the learned trial judge to have come to any satisfactory decision on the issue except by a visit of inspection to the building. ”

We observe that the appellants in their pleadings joined issues with the respondent on all the important averments made in the statement of claim. This therefore imposed a very heavy burden of proof on the respondent which must be discharged to entitle him to judgment and award of damages. In this regard, we would, at this stage, set out the relevant facts pleaded in the statement of claim and statement of defence.

With regard to the statement of claim, they are contained in paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 16, and read as follows:

3. The defendants by their “Party” known as “SSL Party 277” carried out seismic operations in the vicinity of the said Iwrhekan village in February 1969.

5. The defendants by their agents or servants carried out the seismic operations referred to in paragraph 3 above at a point very close to the plaintiff’s premises, namely, the main building the out house and the well which operations produced excessive noise and vibrations.

6. The defendants in the course of carrying out their seismic operations aforesaid by their agents or servants, SSL Party 277, wrongfully caused the excessive noise and vibrations to come into the plaintiff’s premises and affected the very foundation of the main building, the out house and the concrete fence and did them great damage.

7. The plaintiff who was at home at this time with his family had to run away from the house and take refuge in a nearby bush for their dear lives.

8. At the end of the operations, the plaintiff summoned up courage and went back to his house only to discover that the house has been seriously damaged and rendered unfit and unsafe for human habitation.

9. The plaintiff, on inspection, found that the walls of the main building, the out house and the fence had been dangerously cracked from the foundation, the pillars cracked and broken and that it was impossible to close the doors because the walls of the building have partly caved in.

10. The plaintiff had no alternative than to pack out from the house and to depend on other relations for accommodation that day.

11. The plaintiff by a letter dated 29th February 1969 (wrong date) informed the defendants through the Manager of the SSL Party 277 of the damage which the shooting exercise carried out at the said Iwrhekan village and close to his premises had done to his premises.

12. The plaintiff by another letter dated 15th April 1970 reminded the defendants’ agents or servants of their obligations to check on his complaints and assess the damage which has been done to his premises as a result of this exercise.

13. The defendants failed or refused or neglected to inspect the damage done to the plaintiffs building and to assess the value thereof and pay same.

14. The plaintiff therefore consulted Estate Agents and instructed them to value and assess the possible cost of reinstating the premises.

16. The plaintiff has, by the acts of the defendants, their agents or servants suffered damage.

PARTICULARS OF DAMAGE
(i) SPECIAL DAMAGE:               pounds      shillings         d
Equivalent value in reinstating
the premises                          880      =        =
(ii) GENERAL DAMAGE:
Inconvenience                      120       =        =

TOTAL:                               1,000pounds    =    =

The pertinent portions of the statement of defence we would refer to are paragraphs 4, 5(h), 6, 8, 10, 11, 12, 13, 14, 15 and 16.

They read as follows:

4: The defendants stoutly deny paragraphs 3, 5 and 6 of the statement of claim.
5: In further answer to paragraphs 3, 5 and 6 of the statement of claim, the defendants aver as follows:

(h) Line 34 – 69 – 2/6 – 039 shot in 1969 though not in February 1969, is about half a mile away from Iwrhekan village.

6: Defendants’ operations in Iwrhekan in 1965 were much closer to plaintffs buildings than the 1969 operations. The operations enumerated in paragraph 5 of this statement of defence have been identical except as to distance and there have been no complaints in respect of the operations mentioned in paragraphs 5(a) – (g) and 5(1) from anyone including the plaintiff.

8: Still in further answer to paragraphs 3, 5 and 6 of the statement of claim, the defendants aver that the dynamites used by the defendants in its operations never exceeded 10 lbs in weight and that it is not possible for dynamites of 1 to 10 lbs weight buried deep in the ground and hundreds of yards away from the plaintiff’s buildings to cause vibration or noise or damage. Defendants deny paragraphs 7 and 8 of the statement of claim and add that it is absolutely safe to stand almost on the shot point itself.

11: Defendants stoutly deny paragraph 9 of the statement of claim. There could be no casual connection between seismic shots and the alleged damage. If plaintiff’s buildings have any cracks, these are due to structural defects and/or poor workmanship and not to defendants seismic operations in 1969 or at any other time.

12: The defendants deny paragraph 10 of the statement of claim.
13: Defendants admit receiving the letters dated 29th February 1969 and 15th April 1970 referred to in paragraphs 11 and 12 of the statement of claim but make no admissions with regard to the rest of the said paragraphs.
14: With regard to paragraph 13 of the statement of claim, the defendants made it abundantly clear to plaintiff that they had caused no damage to his buildings.
15: With regard to paragraph 15 of the statement of claim, the defendants at the trial will challenge the competence of the so-called Estate Agents and the accuracy of their valuation report.

16: With regard to paragraph 16 of the statement of claim, the defendants aver as follows:

(a) That the plaintiff suffered no damage as a result of defendants’ seismic operations.
(b) That the cost of mending the cracks in plaintiff’s building which are due to normal wear and tear, structural defects and/or poor workmanship cannot exceed 100.
(c) The plaintiff has suffered no inconvenience whatsoever.

It is common ground to both parties, and the learned trial judge found as a fact that the respondent had a building at Iwrhekan village. But the parties were not agreed on the materials used in the construction and as to the cause and extent of damage to the buildings.

We observe that the evidence adduced by plaintiff established that seismic operations took place in the village at unknown date in 1969, and that the vibrations caused by the operations travelled through his building, shook it, and caused several serious cracks in the pillars and walls of the building which he claimed were of sandcrete blocks i.e. 6 inches cement blocks. Bernard Edricson Akporiaye, PW1 (Chartered Surveyor & Professional Valuer) gave the number of cracks he saw as 29, 15 of which affected the foundation of the buildings. He observed that the shot point was 120 yards to the building. His inspection was carried out on 14th June 1971, over 2 years after the alleged operations. He observed that 10 of the cracks were serious cracks that showed themselves inside the buildings. He also discovered that the floor of the building inside the house had caved in. This, in his opinion, showed a violent movement under the foundation of the building. He then valued the house at 880. He did not testify as to the origin or cause of the violent movement under the foundation. One could have thought that he was commissioned to estimate the cost of repairing the damage to the building. Surprisingly, there is a total absence from the evidence of plaintiff and his witnesses of these vital statistics. He admitted that he was not a geophysicist. He also admitted that he was not a civil engineer.

The defendants’ witnesses denied carrying out any seismic operations in February 1969. Henry Wada Imevbore, DW5 and Peter Okpeganor, DW6, were emphatic on this point. DW5 and DW6 did, however, admit carrying out seismic operations in 1969, but between 23rd April and 1st May 1969. They gave evidence that when the shooting exercise was carried out near the village, they used only dynamite of weight of 2 – 4 lbs and this, at a distance of about half a mile from the village. They denied carrying out any shooting exercise in the village and produced the records, exhibits D, D1-D7 and E, E1-7 kept.

Alan Berger, DW3, a geophysicist attached to the defendant, gave evidence of the effect of vibrations caused by various weights of dynamite shot into the ground as follows:

“I am conversant with vibrations caused by dynamites underground. A dynamite of about 4lbs weight which is shot into the ground to a depth of 30 yards would not cause any damage to any property within 10 yards of the shot point. A dynamite of about 10 lbs weight would not cause damage, but I would not try it. I would go about 100 yards from a house to shoot a 10 lbs dynamite into the ground at a depth of  about 30 yards.”
To establish the point that the cracks were not caused by seismic operations and that the cracks were minor and natural cracks, the defence called Miller Uloho, DW4, who testified that the cracks he saw on the building could be mended at a cost of 24pounds and said that the house was built of mud and wattle.
The learned trial judge rejected the evidence ofthe defence witnesses DW5 and DW6, accepted the evidence of the plaintiff and his witness, PW2, and held that the defendants carried out seismic operations in Iwrhekan village area in February 1969.

After reviewing the evidence of DW5 and DW6, the learned trial judge said:

“I do not accept the evidence of these two witnesses that the dynamites used by them were of 2 lbs and 4 lbs weight and I reject their evidence……………. ”

With regard to the evidence of DW3, he commented as follows:

“Mr Alan Berger, DW3, who is an expert and whose evidence was most helpful in this case was not taken to the site to inspect the house to form an opinion whether the cracks on the walls of plaintiff’s house were consistent with an explosion of dynamites under the ground.”

Surprisingly, the learned trial judge, while accepting that the evidence of an expert was necessary to establish that the damage to the house was traceable to seismic operations, held that it was not absolutely necessary. Dealing with the quantum of damage, the learned trial judge, after rejecting the 880 value of the house, given by PW1, as unrealistic and pointing out that he was not called upon to value the house but to work out how much it would cost both in labour and materials to repair concluded his judgment as follows:

“On the whole, I am convinced that the damage to plaintiff’s building was caused by the defendants’ seismic operations and after considering the nature and extent of the damage to the house, I am of the  view that the sum of ‘a3350 would be a reasonable and adequate compensation to meet the cost of repairing the house. There will, therefore, be judgment for the plaintiff for 350, with 60 guineas costs against the defendants.”

To these findings and award, the appellant has seriously objected, and his counsel, Chief F.R.A. Williams, has satisfied us that all the grounds of appeal are well founded.

Ground 1 was not argued in isolation, but was dealt with in arguments on each of the other grounds.

On ground 2, Chief F.R.A. Williams submitted that contrary to the findings of the learned trial judge that the operations were carried out in February 1969, the plaintiff under cross-examination admitted that he could not remember the actual date in 1969 when the shooting took place. He then drew our attention to the fact that the letter pleaded in paragraph 11 of the statement of claim was stated to bear a wrong date. The only other plaintiff’s witness, Oga Oweh (PW2), who testified on the issue mentioned no dates. He then submitted that the only firm dates established by evidence before the court, therefore, were the dates given by DW5 and DW6). He observed that their evidence was rejected by the learned trial judge on the issue.
We are in agreement with the learned counsel for the appellant that there was no evidence led by the plaintiff and his witness to support the learned trial judge’s finding that the shooting operations were carried out in February 1969.

Ground 2 of the ground of appeal is, therefore, well founded and succeeds.

On grounds 3 & 4, the learned counsel submitted that while the learned trial judge rightly commented that the defence did not plead the dates 23rd April to 1st May 1969, as the dates they carried out seismic operations, he could not on that ground rightly reject them as unconvicing especially in the absence of contrary evidence.

We feel that the date February 1969, was unnecessarily played up by the learned trial judge, in view of the retreat of the plaintiff in crossexamination from his evidence in chief of this issue.

Having described the evidence of DW5 and DW6 on the issue as not convincing, there is a total absence of evidence to identify the seismic operations and establish the weight of dynamite used. The loss of shooters records of 1964 to 1968, do not, and cannot affect the probative value of exhibits D, E and F, in so far as they prove dates on which the shooting operations were carried out in 1969.
Unless for good reasons, which were absent in this case, the uncontradicted evidence of the defence witness 5 and defence witness 6, should have been accepted. We wish to observe that the rejection of their evidence did not improve the position of plaintiff’s case, which was deficient in certain vital material particulars as to statistics.

We, therefore, find grounds 3 and 4 well founded.
On ground 5, Chief F.R.A. Willaims submitted that damage to building by seismic operations ought to be proved by admissible expert evidence and he observed this to be absent in these proceedings. He further submitted that in any proceedings, expert evidence should not, without good reasons, be rejected, but observed that the learned trial judge rejected or failed to act on the evidence of the only expert geophysicist whot testified, i.e. DW3.
The observations of the learned counsel on the findings of the learned trial judge are well founded. They arise from the following proposition. of law made by the learned trial judge which reads as follows:

“I am of the opinion that when there is direct evidence of damage occurring to property at a time when seismic operations are taking place within a reasonable distance from the property and such damage is not traceable to any force majeure or natural phenomena or latent defect in the property, it is reasonable to presume that such damage is the result of seismic operations, although such presumptions may be rebutted by evidence that the dynamites used and the distance between the shot point and the property are such that an explosion could not possibly cause damage to the property. In such circumstances, the evidence of an expert may be useful, but not absolutely necessary.”

We are unable to agree with the learned trial judge that the evidence of an expert is not absolutely necessary to prove damage alleged to be caused by vibrations radiating from seismic operations taking place within a reasonable distance from the property damaged. These are phenomena beyond the knowledge of the unscientific and untrained in seismology and civil engineering.

A similar issue came before this Court in the case of Seismograph Service Limited v Onokpase (1972) 1 ALL N.L.R. (Part 1) 343, when Sowemimo J.S.C., delivering the judgment of the Court said at page 348:

“In order to determine the crucial point as to the cause of 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 his 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 building. The defendant Company also relied in support of its contention on Plan No. OM2762, 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 damage alleged.”

The need for experts or persons specially trained or qualified in the particular discipline to assist the Court by testifying on causation arising from certain phenomena studied only by them has been acknowledged by our law in subsections (1) and (2) of section 56 of the Evidence Act which is applicable in Mid-Western State. Subsections (1) and (2) of section 56 of the Evidence Act read as follows:

(1) When the court has to form an opinion upon a point of foreign law, native law or custom, or of the science or art, or as to identify 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 identify of handwriting or finger impressions, are relevant facts. Such persons are called experts.

Recently, in the case of Seismograph Service (Nigeria) Ltd. v. Esiso Akporuovo (1974) 6 S.C, 119 at 136, this Court emphasised the relevance of expert evidence in ascertaining liability for damage alleged to have arisen from seismic operations. In that case, Sowemimo J.S.C. (delivering the judgment of the Court) said at page 136:

“The evidence of the 4th 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.”

It is, therefore, a negation of duty to run away from expert evidence and postulate presumptions. Presumptions do not arise where direct evidence is available. The learned trial judge’s conclusion that:

“Applying the above test” (already set out above from his judgment)” to this case, I hold that the damage to the plaintiff’s house was caused by the explosion of dynamites in Iwrhekan village in February, 1969,(Brackets supplied): is based on speculation rather than the evidence of the only expert before him. The only expert who testified on causation before the Court was Alan Berger DW3. Testifying as to his qualification, he said:

“I have an honours degree in Geology, from the University of London. I have a post graduate Diploma in applied Geophysics from the Royal College of Geophysics, London. I have worked in Nigeria, Holland, Angola, Mozambique and England. In Nigeria, I have worked on all oil producing States including part of the Western State.”

The failure of the learned trial judge to act on his evidence which he did not directly reject, was a grave error. Nevertheless, this failure to act on the expert evidence of DW3 did not improve the plaintiffs case. It only increased the burden on the learned trial judge in his task of ascertaining the cause of the damage from the evidence adduced by plaintiff and witnesses. The absence of expert evidence in support of plaintiff/respondent made his task impossible.

Ground 5 therefore succeeds.

The success of the arguments on ground 5 is shared by the arguments on ground 6(1) of the grounds of appeal.

With regard to ground 6(2) of the grounds of appeal, the learned counsel for the appellant made the point quite rightly in our view, that a visit and an inspection of the property alleged damaged by the seismic operations would have settled the conflict between the plaintiff’s witnesses’ evidence and the defence’s witnesses’ evidence on the extent of damage visible on the building and the quality and type of materials used in the construction of the buildings. It is impossible to ascertain the truth of the matter by a sweeping declaration of belief or disbelief of evidence when the property about which there is a serious conflict of evidence is available and within reach ofthe court. There must be sound basis for rejection or acceptance of evidence of description of property and damage to them.

The defence, in pursuance of his notice, called Josephus Theophilus John, a civil engineer and surveyor, who visited and inspected the site and house of plaintiff in February 1972, to ascertain the damage to plaintiff’s house.”

In his evidence, he said inter alia:

“The plaintiff’s house was built of wattle and mud properly plastered in and out…………. There were light cracks above the window lintels which I attributed to the absence of  reinforcement over the windows to carry the walls above. The house was occupied as I saw beds and mats in the room. The doors and windows opened in the ordinary way. There were no depressions or  cracks on the floor which could have been caused by damage or vibration. The house was decorated in and out. There were other buildings around and they had no damage from extraneous forces. I did  not see the plaintiff, but he sent me to his brother to show me the house.”
This evidence is in serious conflict with that of the plaintiff and Bernard E. Akporiaye, his first witness on the issue. Bernard E. Akporiaye, PW1, a chartered surveyor and valuer, whose evidence was vital to the plaintiff’s case on this issue said:
“I know the plaintiff who consulted me to carry out a valuation exercise in respect of his building at Iwrhekan village on the 14th June 1971, and Oga Oweh acted as guide to me. He showed me plaintiff’s building and a spot where a shooting took place. The distance between the shot point and the building was 120 yards. I then carried out a thorough inspection of the building and found 29 external cracks of  vanous sizes and 4 internal cracks. 15 of the 29 cracks affected the foundation of the building, 10 of the cracks were servere cracks that showed themselves on the inside of the building. I also discovered  that the floor of the building inside the house had caved in and subsided to a depth of 5 inches, which, in my opinion, showed that there was a violent movement under the foundation of the building” ……………………………..
“The bungalow was built of cement blocks of 6 inches”…………….. “The floor was of concrete.”

In our view, the only way the court could have resolved this conflict was to have moved to the locus and carry out judicial inspection. See section 76(a) and proviso (ii) to section 76 of the Evidence Act. This was not done and the conflict remained unresolved. There was, in our view, no proper evaluation of evidence on the point. Without proper evaluation ofthe evidence, the issue as to damage could not be and was not resolved for the correct and right judgment to be made by the learned trial judge.
This court has recently, in the case of Seismograph Service (Nigeria) Limited v. Esiso Akporuovo (1974) 6 SC. page 119 at page 128, emphasised the point that the issue in such a case as this can only be resolved by a visit to the scene. In that case, Sowemimo J .S.C. (delivering the judgment of the court) said at page 128-

“At this stage, the learned judge was faced with two conflicting evidence as to whether or not the buildings were standing not. The 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 this 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) ofthe 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 cicumstances 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.”

Section 76(a) and proviso (ii) to Section 76 referred to in this dictum read:

“76.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 he saw that fact:…………..

Provided that:-
(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 subjectmatter 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 either case, the accused, if any, shall be present. ”

Ground 6(2) of the grounds of appeal succeeds. We are satisfied that the judgment of Ogbobine, J., cannot stand in the face ofthe arguments in support of all the grounds of appeal and we hereby allow the appeal for the reasons stated above.

The judgment of Ogbobine, J., together with the order as to costs in SUIT No UHC/34/71, delivered on the 27th day of October, 1972 is hereby set aside and we substitute, therefore, a judgment dismissing the claim with costs assessed at N180.00 in this Court and N50.00 in the lower Court.

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Other Citation: (1976) LCN/2366(SC)