Shell Petroleum Development Company Nigeria Limited V. Chief Tigbara Edamkue & Ors (2009)
LAWGLOBAL HUB Lead Judgment Report
F. OGBUAGU, J.S.C
At the trial court, there were two separate suits against the Defendant/Appellant. The first suit, was instituted by the 1st set of Plaintiffs/Respondents in Suit No. FHC/PH/84/94, while the second suit, was instituted by the 3rd set of Plaintiffs/Respondents in Suit No. FHC/PH/85/94. In both suits, the claims were/are for damages each of them suffered as a result of a serious explosion and spillage of crude oil from the Appellant’s Yorla Oil Field or station in the Khana Local Government Area of Ogoni land in Rivers State which occurred on the 31st July, 1994. Both suits were consolidated for trial by the trial court on 12th December, 1995. After hearing and addresses of the learned counsel for the parties, in my respectful view, the trial court, – Aina J. in a very well considered Judgment (spanning from pages 618 to 730 of the Records) delivered on 28th June, 1999, entered judgment in favour of the 1st and 3rd sets of Plaintiffs/Respondents. It/he granted their respective claims. The Appellant appealed to the Court of Appeal which affirmed the said Judgment of the trial court. Dissatisfied with the Judgment of the Court of Appeal, Port-Harcourt Division (hereinafter called the “court below”) delivered on 27th March, 2003 – per Akintan, JCA (as he then was), the Appellant has now, appealed to this Court.
I note that although the 2nd set of Plaintiffs were joined at their own instance by the trial court, the 1st set of Plaintiffs/Respondents, successfully, challenged the said joinder in an appeal to the court below which struck out their names. The decision striking out their names, is contained in the Judgment of the court below. The 2nd set of Plaintiffs therefore, are not a party to the instant appeal, as they have not appealed against the said decision of the court below striking out their names.
I also note that upon the dismissal of its appeal by the court below, the Appellant, pursuant to the Order of the court below that the Appellant should furnish a Bank Guarantee to secure the payment of the total judgment debt due to the Plaintiffs/Respondents in the event of the dismissal of its appeal to the court below, the Appellant, accordingly, furnished the Bank Guarantee from the Union Bank of Nigeria PLC. See pages 1216 to 1220 of the Records. Upon the dismissal of the said appeal, the Bank, duly paid the total judgment debt amounting to the sum of N225,806,601.00 to the Plaintiffs/Respondents. See the photo copy of the/its cheque dated 27th March, 2003 appearing at page 1222 of the Records.
The Appellant, in its/their Brief, have formulated four (4) issues for determination, namely,
“(i) Whether on the evidence before the Court in view of the fact that the Plaintiffs sued and claimed the authority so to do as representatives of the DUBORO Community in the first action and BAEN Community in the second action, it was proper for the trial Court to have entered judgment in favour of the Plaintiffs in each case;
(ii) Whether the Lower Court was right in finding that the Oil spillage which took place on 31st July,
1994, was as a result of the negligence, default or other wrongful action on the part of the Defendant/Appellant as contended by the Plaintiff/Respondent and not as a result of the deliberate act of an unknown person as contended by the Defendant/Appellant.
(iii) Whether the Lower Court was right in entering judgment in favour of the Plaintiffs when they had not established communal ownership of the asset injuriously affected by the spillage;
(iv) Whether there was credible evidence before the Court to sustain the award of damages by the Lower Court”.
[the underlining mine]
On its part, the 1st and 3rd sets of Plaintiffs/Respondents, have formulated two issues for determination. They read as follows:
“(1) Whether the Court of Appeal was justified in law when it held that the trial court had jurisdiction to amend the capacities in which the actions at the trial court were brought (grounds 1 and 2 of the grounds of appeal).
(2) Whether the Court of Appeal was justified when it held that the Defendants/Appellants was liable for the claims of the Plaintiffs/Respondents under the doctrine of res ipsa loquitor and or the rule in Rylands v. Fletcher, ground 3 of the grounds of appeal”
When this appeal came up for hearing on 28th April, 2009, the learned leading Counsel for the Appellant – Williams, Esq. (SAN) adopted their Brief. He referred to some pages of the Records and their List of Authorities. He specifically, referred to their issue (i) and submitted that the appeal should and ought to be allowed on this issue. He referred to the issue of damages and submitted that the Estate Surveyor is/was not competent to give expert evidence on it. He finally urged the Court, to allow the appeal.
The learned counsel for the 1st and 3rd sets of Plaintiffs/Respondents-
Ugboduma, Esqr, also adopted their Brief. As to the said issue (i) of the Appellant, which he stated is covered at page 6 of the Appellant’s Brief, he submitted that it is not covered by any of its ground of appeal and that in fact, all the issues formulated by the Appellant, are not supported by the grounds of appeal at pages 1145 to 1146 in Vol. 2 of the Records. He finally urged the Court to dismiss the appeal.
Thereafter, Judgment was reserved till to-day. I note that the Appellant, did not state or disclose under which ground or grounds of appeal, the said issues were/are formulated. It is now firmly settled that the general rule, is that issue or issues for determination, must relate to or be derived from a ground or grounds of appeal, otherwise, it they will be incompetent and must therefore, be discountenanced or struck out. See the cases of Alhaji Animashaun v. University College Hospital (1996) 12 SCNJ 179 @ 184; Chief Agbaisi & 3 Ors. v. Ebikorefe & ors. (1997) 4 NWLR (Pt.502) 630, (1997) 4 SCNJ 147 @ 157; Biocon Agrochemicals (Nig.) Ltd & 3 ors.v. Kudu Holding (Pry) Ltd & anor. (2000) 12 SCNJ 272 @ 285; Adah v. Adah (2001) 2SCNJ 90 @ 97 and Adelesola & 4 ors. v. Akinola & 3 ors. (2004) 12 NWLR (pt,887) 295; (2004) 5 SCNJ 235 @ 246 just to mention but a few. However, since the 1st and 3rdsets of Plaintiffs/Respondents, have stated under which ground or grounds their own issues have been formulated, I will, in the interest of justice, ignore the error or omission by the Appellant in not doing the same. This is notwithstanding that the Plaintiffs/Respondents, have submitted in paragraph 2.0 page 4 of their said Brief, “that those issues do not arise for determination in this appeal”
A reading of Issue (i) of the Appellant, by me, puts me in no doubt that the said issue, is grossly incompetent. This is because, on decided authorities, this Court, does not deal directly, with appeals or complaints or facts or issues arising or emanating from the High Court which includes the Federal High Court. See Section 233(1) of the Constitution of the Federal Republic of Nigeria, 1999 and the cases of Harriman v. Chief Harriman (1987) 3 NWLR (pt.60) 244 @ 217; (1987) 6 SCNJ 218; Chief Olatunde & anor. v. Abidogun & anor. (2001) 12 SCNJ 225 @ 234 and Engr. Agbi v. Barrister Alabi (2004) 6 NWLR
(pt.868) 78 @ 143 – 144; (2004) 2 SCNJ 1 @ 52. In the result the said issue (i) together with the arguments in respect thereof, is discountenanced by me and in fact, being incompetent, it is accordingly struck out.
I will therefore, take first, issue (1) of the 1st and 3rd sets of Plaintiffs/Respondents. The court below at page 1113 of the Records, referred to the provisions of Order 32 of the Federal High Court (Civil Procedure) Rules (hereinafter called “the Rules”) which it reproduced and then stated inter alia as follows:
“I believe that the earlier order made ex parte by Sanyaolu, J formed part of the proceedings in the case before Aina, J who later assumed jurisdiction in the case. He (Aina J) therefore has the power to entertain the application to amend the said earlier order in the proceeding as requested in the motion filed by the plaintiffs to that end”. In order to show that the court below was right and justified in its holding, I too will reproduce the provision of the said Rules. It reads as follows:
“The court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceedings to be amended or not and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made…..”.
This Rule is so clear and unambiguous, that it needs no further interpretation. This provision, is similar to the provision in some other High Court Rules of various jurisdictions in Nigeria and has, received judicial support in many decided authorities. See the cases of Amadi v. Thomas Aplin & Co. Ltd (1972) 1 All NLR (pt.1) 409; Okeowo v. Migliore (1979) 11 S.C 138; Osho v. Anor. v. Michael Ape (1998) 6 SCNJ. 139 @ 151 – 152; Alsthom SA & anor. v. Chief (Dr.) Saraki (2000) 4 SCNJ. 249; (2000) 11 S.C 1 just to mention but a few.
As a matter of fact, a substitution, is held as an amendment. See the case of Alhaji (Chief) Agbabiaka v. Saidu & 11 ors. (1998) 7 SCNJ. 305. Indeed, an amendment, relates back to the date of the suit, process or document as amended. See the case of Oduwaiye v. Oresanya (1968) NMLR 430 and Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasvernwertung A.G. (G.IV.) (2001) 9 NWLR (Pt…. )610; (2001) 5 SCNJ. 55 @ 76.
I am aware that there is only one High Court in a State with Judicial Divisions, created for administrative convenience or purposes. The Judges of the Federal High Court, sit in different States or separate courts as in the Federal Capital Territory. Both courts, are bound by one Statutory Rule of Court. See the cases of S. O. Ukpai v. Okoro & ors. (1983) 2 S.C NLR 380 @ 388. 390, 391; Skenconsult Nig. Ltd. v. Ukey (1981) 1 S.C. 6 interpreting Section 234 of the 1979 Constitution, Egbo v. Laguma (1988) 2 NWLR (pt.80) 109 and Chief Egbo & 16 ors. v. Chief Agbara & 4 ors. (1997) 1 NWLR (pt.481J 292; (1997) 1 SCNJ. 91 – per Iguh, JSC.
As regards representation, in the case of Afolabi & ors. v. Adekunle & anor.(1983) 2 SCNLR 141; (1983) 8 Soc. 98 @ 103, 717-123; (1983) NSCC Vol.14 P.398, it was held that an amendment can or could be made, to reflect the representative capacity under which the first plaintiff should have sued and any
such amendment, was and would be justified by the evidence in the case which was or is dictated by the justice and merits of the case. See also the case of Omogigere & ors. v. Itietie & anor. (1972) 5 S.C 334 @ 340 – 342.
It is also settled that once the pleadings and evidence, establish conclusively, a representative capacity and that the case has been fought throughout in that capacity, a trial or Appellate Court, can and will be entitled to enter judgment for or against the party in that capacity, even if an amendment to reflect that capacity, had not been applied for or obtained. It will be otherwise, if the case is not made out in a representative capacity. See the cases of Shella v. Chief Asajon (1957) 2 FSC68; Dokubo v. Bob Manuel (1967) 1 ANLR 113 @ 121; Onwunaju Ndidi & anor. v. Osademe (1971) 1 ANLR 74 @ 16; Mba Nta & ors. v. Ede Nweke Anigbo & anor. (1972) 5 S.C. 156 @ 774 – 775; Mba Orie & anor. v. Okpan Uba & anor. (1976) 9 – 70 S.C 723 @ 133; Taiwo Ayeni v. William Sowemimo (1982) 5 S.C 60 and Oba Oseni & 14 ors. v. Dawodu & 2 ors. (1994) 4 NWLR (Pt.339) @ 405 – 406. 411 – 412; (1994) 4 SCNJ (Pt.1) 197 @ 209 just to mention but a few. There need not be a formal application to this/that effect either in the trial or Appellate Court. See the case of Chief Fagbayi Oloto v. The Attorney-General (1957) 2 FSC 74 and Afolabi v. Adekunle (supra).
Even where a person sued in a personal capacity instead of in a representative capacity, an Appellate Court, can, in the interest of justice, amend the plaintiffs capacity to reflect the evidence and enter judgment for the plaintiff as representing his family or community. See the case of Osinrinde & 7 ors. v. Ajomogun & 5 Ors. (1992) 6 NWLR (Pt.246) 156; (1992) 7 SCNJ (Pt.1) 79 @114 – 115. In fact, in the case of Prince Ladejobi & 2 ors. v. Otunba Oguntayo & 9 ors. (2004) 7 SCNJ 298 @310 – 311- per Uwaifo, JSC, it was held that the law is that a person, has the right to protect his family’s interest in a property or title and can sue for himself and on behalf of his family, in a representative capacity. The cases of Sogunle v. Akerele (1967) NMLR 58; Nta. V. Anigbo (supra); Mefifonwu v. Egbuyi (1982) 9 S.C 145 @ 159 and Chief Atanda & ors. v. Akunyun (stated therein as Olanrewaju) 1988 4 NWLR (pt. 89) 394 were therein referred to, (it is also reported in (1988) 10 – 11 SCNJ 11). See also the cases of Coker v. Oguntola & ors. (1985) 1 ANLR (Pt.1) 278; Alhaji Gegele v. Alhaji Layinka & 6 ors. (1993) 3 SCNJ 39 @45; (1993) 4 KLR 51 and Awudu & anor. v. Daniel & anor. (2005) 3 NWLR (pt. 909) 199 @ 222 – 223 CA.
Even if the trial court did not effect the amendment, as shown above in the decided cases, the court below, has the power to amend if it deemed it fit and just to do so. It is settled that an Appellate court can even suo motu, amend the capacity in which a plaintiff sued. See the cases of Amadi v. Thomas- Aplin & Co.Ltd (supra); Ibanga & ors. v. Usanga & ors. (1982) 5 S.C 103 @126 – 127; (1982) 1 ANLR (Pt….) 88 @ 100; Afolabi & ors. v. Adekunle & anor. (supra); Shoe Machinery Co. v. Curtlam (1896) 1 CH 108 @112 and Chief Akinnubi & anor. v. Grace Akinnubi (Mrs.) & 2 ors. (1997)1 SCNJ. 202 just to mention but a few.
It is conceded that when the application to amend came up for hearing, that the Appellant’s learned counsel, did not oppose the same.
I note that at page 66 of the Records, the learned counsel for the Appellant, even asked for costs which were duly awarded. See page 162 of the Records.If a counsel or party, treats a document, or procedure or matter, as admissible, or regular etc, then he cannot be heard or be at liberty, to object or complain later or before an Appellate Court. See for example, the cases of Chief Bruno Etim & ors. v. Chief Okon Udo Ekpe & anor. (1983) 3 S.C 12 @ 36- 37 – per Aniagolu, JSC and Egbaram & 2 ors. v. Akpotor & 3 ors. (1997) 7 NWLR (Pt.514) 559 @574; (1997) 7 SCNJ. 392 @407 409. Having consented to the said application, the Appellant, with respect, cannot now resile or complain. The consent, in my respectful view, was and amounted to an undertaking that they had permanently, waived their right, if any, to object or complain. See the case of Olukade v. Alade (1976) All NLR. 67; (1976) 2 S.C 183 @189.
I note in fact, that the said Orders of Sanyaolu, J. made on 7th February, 1995, amending the capacities the Respondents prosecuted both suits, were not appealed against. The effect is that those orders subsist in law. See the case of Chief Ogunyade v. Oshunkeye & anor. (2007) 15 NWLR (pt. 1057) 218 @257 cited and relied on by the Respondents in their Brief (it is also reported in (2007) 7 SCNJ(170).
In the concurring Judgment of Onnoghen, JSC in the case of Chief Ogunyade v. Oshunkeye & anor. (2007) 15 NWLR (Pt.1057) 218 @ 257, cited and relied on in paragraph 3.3 (6) at page 7 of the Respondent’s Brief, His Lordship stated inter alia:
“…..as the law is settled that any point(s) of law or facts not appealed against is deemed to have been conceded by the party against whom it was decided and that the said point(s) remain(s) valid and binding on the parties”.
As regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of Plaintiffs/Respondents to initiate the two suits on their behalves/behalf, I hold that the Appellant has no locus standi to object to the said representation not being a member of those families or Communities. It is settled that once the Plaintiff/Plaintiffs, expressed on a writ or Statement of Claim that the action, was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or Community to sue in that capacity. It is only a member of that group, family or Community, who can dispute, intervene or challenge, the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal, can never affect the defendant adversely. See the Cases of Chief P. O. Anatogu & ors. v. Attorney-General, East Central State (1974) 4 ECSLR 36; (1976) 11 S.c. 109; Oyemuze & ors. v. Okoli & ors. (1973) 3 ECSLR 150; Alhaji/Chief Otapo & ors. v. Chief Sunmonu & ors. (1987) 2 NWLR (pt.58) 587@ 603; (1987) 5 SCNJ 57; (1987) 2 NSCC Vol.18 P. 677and Daniel Awudu & anor. v. Bautha & anor. (2005) 2 NWLR (Pt.909) 199@222-223 CA. citing the cases of Anatogu v. Attorney-General, East Central State; Chief Otapo v. Sunmonu (supra) and Busari v. Oseni (1992) 4 NWLR (Pt.237) 557.
I note that the court below, affirmed the Ruling or decision of the learned trial Judge in respect of the said order of amendment. In other words, there are concurrent findings and holdings of the two lower courts and on the decided authorities, this Court, cannot disturb or interfere. However, I am aware and concede and this is also settled, that no Judge, can or is entitled, to reverse, vary or alter the order or decision of another Judge of co-ordinate jurisdiction except on issue of jurisdiction. See the cases of Akporue & anor. v. Okei (1973) 12 S.C. 137; (1973) 3 ECSLR 1010 @1014; Orewere & ors. v. Abiegbu & ors. (1973) 3 ECSLR 1164@1167- that the proper action is to go on appeal); National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd (1990) 1 NWLR (Pt.29) 697 @707 CA. – per Akpata, JCA (as he then was). In other words, in the absence of Statutory authority, one Judge, has no power to set aside or vary the Order of another Judge of concurrent and co-ordinate jurisdiction. See the cases of Amanabu v. Okafor (1966) 1 ANLR 205 @ 207 and Uku v. Okumagba (1974) 1 ANLR (Pt.1) 475 cited in the case of Wimpey (Nig.( Ltd & anor. v. Alhaji Balogun (1986) 3 NWLR (Pt.28) 324 @ 339.This is especially, when such order, has been entered or drawn up. See the cases of Obiekwuite v. Z. Umumma & ors. (1957) 2 FSC 70; Okorodudu v. Ajuetami (1967) NMLR 282 @ 283; B.B. Apugo & Sons Ltd (1990) 1 NWLR (Pt.129) 652. But compare the case of Skenconsult (Niq.) Ltd & anor. v. Ukey (1981)1 S.C 6@39 – which in interpreting section 234 of the 1979 Constitution, this Court held that since there is one High Court, he/it can.
I note that in the instant case leading to this appeal, the two orders which granted leave to the 1st and 3rd sets of Plaintiffs/Respondents to sue in representative capacities, were made by Sanyaolu J. See pages 62 and 159 of the Records. The subsequent Orders allowing the Respondents to amend their Particulars of Claim in the two suits by stating that the said suits were instituted for and on behalf of their respective family, were also made by Sanyaolu, J. As I stated earlier in this Judgment, the said two motions/applications, were not opposed by the learned counsel for the Appellant who asked for costs that were also awarded. So, it was the same Judge that made the two orders. See the case of Gordian Obioma & ors. v. Edemanya (1974) 4 ECSLR 174 . In my respectful but firm view, Aina, J. in his lengthy Ruling at pages 296 to 317 of the Records, at pages 311 and 316, thereof, adequately, dealt with some of the said principles relating to application for leave to sue in a representative capacity. At page 315, His Lordship stated inter alia, as follows:
“It is the law of this Country that – even if an order for leave is not specifically sought it will be presumed that leave to sue in that capacity was given:-
(a) The title and the Statement of Claim reflect that capacity;
(b) The suit was prosecuted in that capacity to judgment;
(c) Judgment was given for or against the plaintiff in that capacity.
The presumption that leave to sue in a representative capacity was given will be stronger if objection to sue in the representative capacity in limine is overruled by the learned trial Judge.
Failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.
Where a person sues in a representative capacity and was capable of being so easily understood, the action will not be struck out because the Party could have been better described”.
His Lordship referred to the cases of Ibezim v. Ndulue (1992) 1 NWLR (Pt.216) 153 ratio 15, CA. citing @ 173. Amida v. Oshobayo (1984) 7 S.C. 68 @ 78-79; Anabaronye v. Nwakihe (1997) 1 NWLR (Pt.482) 374 at 382 ratio 7 (It is also reported in (1997) 1 SCNJ. 161 and Melifonwu v. Egbuji (supra) the facts of each of these cases. he briefly stated. At page 317 thereof, His Lordship held inter alia, that.
“It is not every representative action that express authority of the persons represented should be obtained or even more so is the approval of the court should be obtained. A representative action could be implied from the circumstances surrounding the action….”
His Lordship then concluded inter alia, thus:
“It is equally damaging for the Defendant, not being a member of the families or a member of the Bean or Duboro Community to come at this stage of the proceedings to challenge the proper representation of the Plaintiffs after the Plaintiffs have closed their case and the Statement of Defence had been filed, it will not serve the interest of justice at this stage of the proceedings to shut out the plaintiffs in these consolidated suits”.
He proceeded to dismiss the application and called on the defence to open their defence. I agree. I have earlier in this Judgment, touched on or dealt with some of the facts and law in respect of the said Appellant’s grouse. I note that remarkably and significantly, the Appellant in paragraph 7 (3) of its further Amended Statement of Defence at page 186 of the Records, averred as follows:
“That the cause of the said spillage was occasioned by acts of vandalism and wanton destruction of the Defendant’s installations at its Yorla Flow station, maliciously perpetrated by the Plaintiffs and members of the Families which they purport to represent and other natives of Ogoni sympathetic to the clamorous and turbulent agitation of the Movement for the Survival of Ogoni People (MOSOP), to wilfully sabotage the economic activities and business of the Defendant in Ogoni Land”.
[the underlining mine}
However, the court below, at pages 1113 to 1115, dealt with this issue (1) of the 1st and 3rd sets of Plaintiff/Respondents and in resolving the question as to whether the learned trial Judge, had the power to grant the prayer in the motion on notice before him in which the 1st and 3rd sets of Plaintiffs/Respondents, prayed the Court for an Order varying the terms of the leave granted to them by Sanyaolu, J. to institute the consolidated suits in representative capacities respectively on behalf of the said two Communities. It held at page 1113 inter alia, as follows:
“… it is necessary to take into consideration the fact that the application was made ex parte under Order 4 Rule 3 of the Federal High Court (Civil Procedure) Rules, It is also an approval which has to
be sought and given before an action is commenced. The approval order therefore, in my view, is in respect of a preliminary requirement prior to in commencement of an action. I therefore do not believe that such an order comes within what can constitute a decision of a Judge which cannot be varied, reversed or allied by another Judge of coordinate or equal jurisdiction. It is therefore not one envisaged in the dictum of Nasir, PCA in Fawehinmi v. Attorney-General of Lagos State (supra) and by Lewis, JSC in Ekpere v. Aforije. (supra)…
I believe that the earlier order made ex- parte by Sanyaolu, J formed part of the proceedings in the case before Aina, J who later assumed jurisdiction in the case. He (Aina, J) therefore has the power to entertain the application to amend the said earlier order in the proceedings as requested in the motion filed by the plaintiff in that end”.
I agree.
I have earlier held that there are concurrent findings of fact and Judgments of the two lower courts and that this Court or myself, cannot and will not disturb or interfere. This, should have been the end of this appeal.
My answer therefore, to the said issue (1) of the 1st and 3rd sets of Plaintiffs/Respondents, is rendered in the Affirmative/Positive. In respect of Issue (ii) of the Appellant and issue (2) of the 1st and 3rd sets of Plaintiffs/Respondents, it is now firmly established in a line of decided authorities by this Court firstly, that civil cases, are proved by preponderance or weight of evidence. See the case of The Liquidator of Efufu (P.M.S.) Ltd v. Adeyefa (1970) 1AMLR 13; (1971) U.K R. 42.
Secondly, it is not the business of a Court of Appeal to substitute its own views for the views of a trial court which is in a much better position to assess the credibility of all those who testified before it. See the cases of Akinloye v. Eyiyola (1968) NMLR 92 @ 95; Egri v. Uperi (1974) (1) NMLR 22 and Woluchem v. Gudi (1981) 5 S.C. 291. The duty of appraising evidence given in a trial, is pre-eminently, that of the trial court. See the case of Ogundulu & ors. v. Chief Phillips & ors. (1973) 2 S.C. 71@ 80. When there is evidence as in the instant case, to support the conclusion of a trial court/Judge either in granting or dismissing a claim or relief, a Court of Appeal, will not interfere. See the cases of Olugbolu v. Okeluwa (1981)6-7 S.C. 99 @ 105-107 citing some other cases therein; and Obodo & anor. v. Ogba & ors. (1987) 3 S.C. 459 @460-461, 466; (1987) 3 SCNJ. 82; (1987) 2 NWLR (pt.54) 1.
I say so because, the findings and holdings of the trial court, are adequately, in my respectful view, supported by the Records. The 1st set of Plaintiffs/Respondents pleaded at paragraph 7(a) of their Amended Statement of Claim at page 176 of the Records, that there was an explosion preceding the occurrence of the spillage. But the Appellant, in the said paragraph 7(3) of its Further Amended Statement of Defence referred to by me earlier in this Judgment, averred that the spillage, was caused by the malicious acts of vandalism and wanton destruction of its installation at its said station, by the Respondents and members of their families which they purport to represent. However, the trial court at pages 709 to 710 of the Records, held that the said averment of the Appellant in the said paragraph afore-stated, amounted to or constituted criminal allegation and that the Appellant, failed to prove the same beyond reasonable doubt. I note that the Appellant, did not appeal against this finding and holding by the trial court. The consequence of course, is that not only did that finding and holding, subsist, but they are deemed to have been accepted by the Appellant. See also the case of Calabar Central Cooperative Thrift & Credit Society Ltd & 2 ors. v. Ekpo (2008) 6 NWLR (Pt.1083) 362 @388 cited in the Respondents’ Brief (it is also reported in (2008) 2 SCNJ. 307 and (2008) 1- 2 S.C 229.
The court below, at pages 1121 to 1125 of the Records, dealt with this issue and issue (iv) of the Appellant and thereafter, affirmed the said finding of fact and holding of the trial court. Thus, there are concurrent findings of fact and holdings or Judgments by the two lower courts and on the decided authorities, this Court, cannot and will not disturb or interfere. This again, should have been the end of the appeal. My answer therefore, to the two issues differently couched by the parties, is also in the Positive/Affirmative.
Let me for the avoidance of doubt, say that in respect of issue (iv) of the Appellant, I note that the Appellant, in paragraph 16(1) of its Further Amended Statement of Defence at page 191 of the Records, pleaded inter alia, that the Estate Surveyors and Valuers of the PW2, did not carry out any proper appraisal of the losses caused by the said oil spillage. Then, at paragraph 16(4) and at page 192 thereof, it pleaded that it will rely on the appraisal Reports produced by its Valuers in respect of the said oil spillage. I note that at the trial, it never called its own Valuers. So, at the close of the trial, there was no evidence from the Appellant, to controvert the said evidence of the PW2 who and in fact, produced Exhibits “A” and “A1”. The law is well settled that a trial court, is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his/its witness/witnesses. In such a situation, there is nothing to put or weigh on the imaginary or proverbial scale. In such a case, the onus of proof, is naturally discharged, on a minimum of proof. See the cases of Nwabuko v. Ottih (1961) 2 SCNLR 232; (1961)1 ANLR 487@ 490; Oguma Associated Companies (Nig.) Ltd v. IBWA Ltd (1988) 1 NWLR (Pt.73) 658 @ 682; (1988) 3 SCNJ. 13 and Balogun v. UBA. Ltd (1992) 6 NWLR (Pt.247) 336 @354, (1992) 7 SCNJ. 61 just to mention but a few. It is beyond doubt therefore, that the trial court, was justified, when it relied on the said evidence of the PW2. The court below, rightly, in my respectful view, affirmed the said decision of the trial court. I so hold.
I hold that issue (iii) of the Appellant, with respect, is irrelevant in this appeal and I will therefore, discountenance it. In concluding this perhaps, lengthy Judgment, I have no hesitation, in holding that this appeal, with respect, lacks substance and it is unmeritorious. It fails and it is accordingly dismissed. Costs follow the event. The 1st and 3rd sets of Plaintiffs/Respondents, are entitled to costs which is fixed at N50,000.00 (fifty thousand naira) payable to them by the Appellant. I wish the Rules of this Court, had given me a discretion in respect of award of costs as this is one of the appeals, where the costs to the 1st and 3rd sets of Respondents, should have been more in the circumstances of this case.
SC.60/2003
