Shell-BP Petroleum Development Company Of Nig. Ltd V. His Highness Pere Cole & Ors (1978)
LawGlobal-Hub Lead Judgment Report
BELLO, J.S.C.
The respondents are members of Sagbama people who are the owners of the land over which the Sagbama creek flows and are also the owners and occupiers of the land on the banks of the creek. In 1971, without the authority and consent of the Sagbama people, the Appellants dredged the creek in order to facilitate their oil prospecting operations.
In consequence of the damage and loss caused by the dredging operations, the respondents for themselves and on behalf of the Sagbama people commenced proceedings in the High Court, Warri, and they as plaintiffs claimed against the appellants as defendants:
“The sum of 60,000Pounds (Sixty Thousand Pounds) being a fair, reasonable and adequate compensation payable by the Defendants to the plaintiffs for the damage done to Plaintiff’s property that is to say the Sagbama Creek- a creek over which the Plaintiffs had exercised and continued to exercise customary rights from time immemorial whereby the defendants during their dredging operation of the said creek caused damage to plaintiffs gravel, sand, juju shrines, erosion to Plaintiff’s land and occasioned permanent loss of fishing rights on or about May, 1971, within the jurisdiction of this Honourable Court.”
After a review of the evidence adduced by the parties, the learned trial Judge found that in the dry season the creek used to dry up leaving pockets of water which formed a lake and ponds in places along the course of the creek wherein Sagbama people used to catch fish and they also used to win gravel and sand for commercial purposes in the creek; that as the result of the dredging no lake or ponds in which the people may catch fish is or are being formed and that no gravel or sand is being won by the Sagbama people.
He also found that in the course of the dredging exercise fishing equipment and canoes belonging to the Sagbama people were destroyed and their juju shrine were damaged and desecrated. He found the appellants liable in damages for the loss occasioned to the Sagbama people.
In his consideration of the evidence relating to the issue of damages, the learned trial Judge found that the evidence led by the respondents provided him with no basis upon which to quantify the loss. He then proceeded to make the following observations:
“In assessing the damages and compensation, what this court must strive to do in the circumstances is clearly stated in decided cases and I will refer to four of them on the point.
As Vaughan Williams, L. J. put it in the case of Chaplin v. Hicks 1911-13 All ER (Reprint) which is the leading case on the issue of certainty, the fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. To my mind this also holds good for a compensation claim.
In the same case of Chaplin against Hicks, Fletcher Moulton said at page 229:
‘It is, however, clear that where in the minds of reasonable men there has been a de facto loss the jury is to do their best to estimate it. It is not necessary there should be an accepted measure of damages’
Again, in Biggin v. Permanite, Devlin, J., stated the approach to the problem thus:
‘Where precise evidence is obtainable the court naturally expects to have it, (but) where it is not, the court must do the best it can’
As is stated in Mayne and Mcgregor on Damages 12th Edition, Article 175 at page 174 of the work in certain cases, general damages may be awarded in the sense of damages “such as the jury may give when the judge cannot appoint any measure by which they are to be assessed except the opinion and judgment of a reasonable man”. The case cited there is Prehn v. Royal Bank of Liverpool (1870) 5 Ex. 92, 99-100 per Martin B.
Bearing the principles just set out in mind, I will now proceed to assess what would be a fair and adequate compensation for the damage done by the Defendants.
Of all the materials available before me, Exhibit 10, to my mind, affords some useful guide whereon to proceed in tackling the problem. In that Exhibit, which is a letter written by plaintiffs’ solicitor to the Defendants about 5 or 6 months after the dredging, the solicitor set out what he said were the damages done, and the values of things damaged.”
He thereupon awarded the respondents the sum of N45,840 as compensation made up as follows:
(1) Permanent destruction of fishing
right in the lake ……. N10,000
(2) Fishing equipment and canoes ….. 10,840
(3) Loss of gravel …. 15,000
(4) Loss of sand …. 10,000
(5) Damage to two jujus … 200
The appellants are dissatisfied with the decision of the learned trial Judge and although they appealed to this court on several grounds, the appeal has been canvassed on the issues of damages only. The grounds argued are:
“5. The learned trial Judge erred in law and misdirected himself on the facts in basing his assessment and/or award of damages in this case on Exhibit 10, being a letter dated the 30th of November, 1971 written by the respondents’ counsel to the Appellants.
PARTICULARS:
(a) There was no disclosure as to the sources from which the figures contained in Exhibit 10 were obtained and/or verified.
(b) From the nature and conduct of the case, the writer of Exhibit 10 was not available for cross-examination as to how he arrived at the various sums claimed by him on behalf of his clients, the respondents in this case.
(c) There is conclusive evidence on record to the effect that the respondents kept no records whatsoever of the alleged income realised by them from their fishing activities and from sand and gravel. In the premise, there was no admissible evidence or evidence possessing enough probative value to support the award of damages made by the learned trial Judge.
7. The learned trial Judge erred in law in awarding the respondents damages in respect of losses alleged to have been suffered by individuals mentioned in Exhibit 10 (items 4(d) to (g) whereas the respondents have brought this action in a representative capacity.
8. Having found that the respondents led no evidence as to the value of their jujus allegedly damaged by the appellants’ dredging operations the learned trial Judge was in error in setting up himself as a valuer to make an assessment of the compensation payable in respect of the damage allegedly caused to the said juju”.
In his submission, learned counsel for the appellants argued that by their pleadings and evidence the respondents relied on Exhibit 1, which is a valuation report made by their surveyor and valuer (P.W.1), but the learned trial Judge failed to make use of the report; that in its stead the learned Judge based his assessment on Exhibit 10, which is a letter written by the solicitor of the respondents. He further argued that the contents of the letter is hearsay which is inadmissible and it ought to have been rejected. Learned counsel again submitted that as the learned Judge did not evaluate the evidence of the valuer (P.W.1), it may be inferred that he rejected that evidence and, if that was the case, then there is no evidence of valuation to support the awards.
With regards to the award of N10,840 for fishing equipment and canoes, learned counsel complained that it is an error in law to make such award when there was no claim for any fishing equipment or canoes. The award for the jujus has been challenged on the ground that the learned Judge made his own assessment of their values which the respondents failed to prove.
In the course of his reply learned counsel for the Respondents conceded, with candour and frankness, that the award of N10, 840 as damages for fishing equipment and canoes cannot be justified as there was no claim for any of those items. He further conceded that the learned trial Judge erred in law in taking Exhibit 10 as a guide in his assessment. He urged us to remit the case to the court below for a re-trial of the issue on damages.
We entirely agree with learned counsel that the award of N10,840 for fishing equipment and canoes was manifestly erroneous as there was no claim whatever for them. Paragraph 35 of the statement of claim in which fishing equipment and canoes were mentioned simply averred that they would be the subject matter of claims in further actions. The paragraph reads:-
“35. The Defendants their agents or servants disturbed the Plaintiffs’ fishing rights, dredged the sand and the gravels into the Forcados river, knocked down the Plaintiffs’ juju shrine and desecrated the other juju shrine. The suckling dredging system had increased the erosion on Plaintiffs’ land, damaged canoes full of gravels and sand and empty canoes of all sizes, and also damaged plaintiffs’ fish nets, traps and other fishing equipments belonging to individual natives of Sagbama and these individual claims shall form the subject matter of other actions to be filed later.”
We also agree with learned counsel that the letter, Exhibit 10, which the learned Judge found as having contained some useful guide for assessment of damages, is hearsay evidence and is inadmissible for the purpose of receiving its contents as sufficient evidence of the valuation stated therein. It may be pointed out, however, that a cursory examination of Exhibit 10 would show that the learned Judge was not guided by Exhibit 10 at all in making any of the awards.
While in Exhibit 10, loss of gravel and sand was valued at 29,000 Pounds, loss of fishing right at 27,000 Pounds and desecration of the shrines assessed at 1,550 Pounds, the learned trial Judge awarded N15,000 for gravel, N10,000 for sand, N10,840 for fishing right and N200 for the jujus. It is obvious that the learned Judge did the best he could under the circumstances and made his own assessment.
It appears from the abstract of the judgment of the learned trial Judge, which we have earlier on quoted, that the learned Judge misdirected himself in law in relying on the principle of law relating to the assessment of general damages when from their pleadings and the evidence adduced by them the respondents’ case is in the nature of claims for special damages. The cases of Chaplin v. Hicks (Supra) and Biggin & Co. Ltd v. Permanite Ltd. (1951) 2 All ER 191 relied upon by the learned Judge were concerned with the issue of remoteness of damages in and foreseeable consequence of breach of contract respectively and neither appears to be relevant to the determination of the issue before the learned trial Judge. The passage in Mayne and Mcgregor on damages referred to by the learned Judge deals with general damages.
Although the claim of the respondents as set out in their writ of summons is unsatisfactory in that they did not specifically claim special damages, nevertheless, it is apparent from their pleadings and the evidence given at the trial as we indicated earlier on, that their claims were in damages for loss of income from fish, gravel and sand and for the damage done to their shrines. In our view the claims were in the nature of claims for special damages which must be pleaded and strictly proved. See Dumez (Nigeria) Ltd. v. Patrick Nwaka Ogboli (1972) 1 All NLR 241 and West African Examinations Council v. Joseph Ceylon Koroye (1977) 2 S.C. 45. For the proper assessment of the loss of income from fish, gravel and sand, there must be evidence of the Respondents’ income on those commodities. As for the juju shrines, we think there must be evidence of the costs of their repairs, or, if they were damaged beyond repairs, of either their value at the time of their destruction or the costs of replacement depending on the circumstances of the case; See S.D. Lar v. Stirling Astoldi (Nigeria) Ltd. S.C. 372/1975 delivered on 16th December 1977, unreported yet. Now reverting to the case in hand, we think there is some evidence of the respondents’ income and the valuation of the loss of that income which the learned trial Judge failed to evaluate.
The valuer (P.W.1) testified thus:
“I know the Plaintiffs in this case. They are the Sagbama community. They engaged the services of Harriman & Co. sometime ago in respect of damages they must have suffered as a result of operations by the Defendants. I did the work and prepared a report. I produced the report. I tender it, admitted as Exhibit 1. In respect of gravel. I used investment method of valuation. This method involves capitalising the recurrent future income with intent to bring forward its future value by using a multiplier which we call year’s purchase (yp) which ordinarily at present value is 1pounds:- :-d. per annum. I used the same method for fishing right.”
His valuation as per Exhibit 1 for gravel and sand was 29,000 Pounds and 27,000 Pounds for fishing right. The Land Officer of the Ministry of Lands and Housing, Benin City, (P.W.2), who is also a professional valuer, confirmed that investment method of valuation is used not only in cases where one has made an investment but also where one expects an income even though he has made no investment.
Under cross-examination, the 2nd plaintiff/respondent stated that his people used to realise about N7,000 yearly from gravel and sand.
The respondents’ customer (P.W.6) states:
“I buy sand and gravel from Sagbama and elsewhere and supply buyers. I have been such Contractor since 1950. In 1950 I was in Burutu. I came to live in Warri in 1961. I buy gravel and sand from December to July. I do not buy gravel and sand from Sagbama any longer. I stopped buying gravel and sand from Sagbama in 1971. The sand and gravel were got from Sagbama Creek.
I met the Pere when I go to buy gravel and sand. Pere’s people will collect the sand and gravel and I pay for them to the Pere. It is the Pere that instructs community to go to collect the sand and gravel. I paid twenty shillings for a drum of gravel and paid fifteen pounds (15 Pounds) for a canoe load. I used to buy up to two thousand pounds (N4,000) worth of gravel and 216 Pounds worth of sand from Sagbama every year. I used to buy gravel and sand from Sagbama from 1950. Other contractors also used to buy gravel from Sagbama. Two of such contractors are Tobi Galiga and Agidee. When I went in 1971 to buy gravel, I saw a company dredging where I used to buy the gravel. The sand and gravel were dredged to the River Niger. As a result of the dredging I have to go somewhere else to be buying sand and gravel.”
This Court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial Judge but where there is ample evidence and the trial Judge failed to evaluate it and make correct findings on the issue, the Court of Appeal is in as much a good position as the trial court to deal with the facts and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial: See Chief James Okpiri & Ors v. Chief Igoni Jonah & Ors (1961) 1 All NLR 102. Olalere Obadara & Ors v. The President, Ibadan West District Court (1964) 1 All NLR and Oladipo Maja v. Learndro Stocco (1968) NMLR 172.
This brings us to the question whether we are in a position to evaluate the evidence and to make proper findings on the issue of damages. In this connection, it is pertinent to observe that the Appellants did not establish any basis upon which the credibility of the witnesses of the respondents may be impeached. The witnesses were not sufficiently cross-examined on the evidence relating to income and valuation. The valuer (P.W.1) was only cross-examined about “the records” when he answered:-
“My clients did not show me any records of their previous sand and gravel transactions ….. I saw no records of my client’s fishing activities.”
The records of appeal also show that the contractor (P.W.6) was cross-examined on “receipts” only. He said Pere never gave him receipts. Moreover, we may point out that the appellants did not lead any contrary evidence. The respondents’ evidence therefore remains unchallenged and unrebutted. We have given consideration to the fact that the respondents did not show their records, if they had any, to their valuer and that Pere did not issue receipts to P.W.6 but we do not think it to be a sufficient ground to discredit the two witnesses.
Accordingly, we find that the respondents proved the valuation of the loss of their income as 27,000 Pounds for fishing right and 29,000 Pounds for gravel and sand. The learned trial Judge awarded the respondents less than the amount proved. It seems that the respondents are satisfied with the awards of the lesser amounts for they have not appealed. For this reason, we will not interfere with the award made by the learned Judge.
However, the award of the sum of N200 as damages for the juju shrines cannot be sustained as there is no evidence to support it. The valuer said he made the assessment of the damage done to the jujus on information given to him by some elderly men. As none of the elderly men testified at the trial, the valuer’s assessment was therefore founded on hearsay. Those for fishing equipment and canoes cannot also be sustained because there was no claim whatever for any of them.
In the result, the appeal is partly allowed. The awards of the sum of N10,840 and N200 for fishing equipment, canoes and jujus are hereby set aside, but the awards of the sums of N10,000 for fishing right, N15,000 for gravel and N10,000 for sand are affirmed. The judgment of the learned trial Judge in the sum of N45,840 is accordingly set aside. Instead there shall be the judgment for the respondent in the sum of N35,000 and this shall be the judgment of the court.
Costs in favour of the appellants are assessed at N193.00.
Other Citation: (1978) LCN/2093(SC)
