The Shell Petroleum Development Company Of Nigeria Limited V. Chief Joel Anaro & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

our separate actions were instituted by the Plaintiffs herein seeking damages from Shell Development Company of Nigeria Limited for oil spillage. The said suits Nos. W/16/83, W/17/83, W/72/83 and W/80/83 were instituted for and on behalf of Obotobo, Sokebolo, Ofogbene (Ezon Burutu) and Ekeremor Zion (Ezon Asa) Communities respectively. The suits were consolidated by Order of the then Bendel State High Court on 21/3/85. At the end of the trial in which parties called witnesses, the trial court in a judgment delivered on 27th May, 1997 in favour of the Plaintiffs awarded damages as follows:-

1. Suit No. W/16/83 – N4,095,085.00
2. Suit No. W/17/83 – N13,278,306.00
3. Suit No. W/72/83 – N7,392,589.00
4. Suit No. W/80/83 – N5,522,701.00

The defendant was dissatisfied and appealed against the judgment to the Court of Appeal, Benin City in CA/8/255/97. The Court of Appeal delivered its judgment on 22nd May, 2000 dismissing the appeal. The appellant was still not satisfied and appealed to the Supreme Court. In the appellant’s brief of argument, four issues were submitted for determination. The issues are as follows:-

1. Whether the State High Court had jurisdiction to try the consolidated suits herein in the light of Decree No 59, Admiralty Jurisdiction Decree 1991, Decree No. 60 Federal High Court (Amended) Decree 1991, Decree No.16 Federal High Court (Amended) Decree1992 and/or Decree No.107 Constitution (Suspension and Modification) Decree 1993.
2. Whether the courts below erred in law in holding that the Minerals Act did not have impact on the plaintiffs claims (Ground 2 particular 5).
3. Whether the courts below were right in holding that the doctrine of Res Ipsa Loquitur was available to the Plaintiffs herein.
4. Whether the courts below were right in basing the damages awarded on (PW1, the Valuers Reports) Exhibits 1-4 when parts of his evidence had been adjudged to be hearsay and therefore inadmissible and worthless.

Learned counsel for the respondents adopted issues 1 and 3 as framed by the appellant’s counsel and contended that issue No.2 in the appellant’s brief is incompetent and should be discountenanced on the ground that it did not arise from any grounds in the Notice of Appeal. He said that issue 4 has to be recasted to reflect the complaint in Ground 6. He therefore formulated three issues for determination.

They are:-

1. Whether the State High Court had jurisdiction to try the consolidated suits herein in the light of Decree No.59 Admiralty Jurisdiction Decree 1991; Decree No.60 Federal High Court (Amendment) Decree 1991; Decree No. 16 Federal High Court (Amendment) Decree 1992; and/or Decree No. 107 Constitution Suspension and Modification Decree 1993 (Ground 1)
2. Whether the court below was right in upholding the decision of the trial court that the doctrine of Res Ipsa Loquitur was available to the plaintiffs/Respondents.
3. Whether the court below was right in upholding the damages awarded by the trial court in the set of four consolidated suits when, in considering the awards, the evidence of PW1, the Valuer, was not expunged as hearsay evidence.

Learned counsel reproduced certain sections of Decree Nos.59 and 60 of 1991, 16 of 1992 and 107 of 1993 and submitted that the combined effect of these Decrees was to deprive the State High Court the jurisdiction to determine admiralty matters concurrently with the Federal High Court, as the suits were not saved by Section 7(6) of Decree No.60 of 1991. He argued that it would be doing violence to the words of the proviso contained in Section 7(6) of Decree No. 60 to reach any other conclusion other than the abatement of the suit and transfer to the Federal High Court. He therefore urged that the appeal should be allowed on this ground alone.

On issue 2, learned counsel argued that title to creeks or other water courses is vested in the State by virtue of Section 3(1) of the Minerals Act Cap 220, Laws of the Federation of Nigeria which was considered by the West Africa Court of Appeal in Bassey v Ekanem XIV WACA 364 at 365 per Sir John Verity CJ which was followed by the Supreme Court in Evoyoma and Ors v. Daregba and Ors (1968) 1 All NLR (Old Series) 192 at 195 and Brigbo and Ors v. Pessu and Ors (1974) 1 All NLR (Old Series) 2 at 37. He said Bairamian JSC took a different view of the effect of Section 3(1) of the Minerals Act in Lawani v. Lemonu (1965) 1 All NLR (Old Series) 23 and adopted in Uyovwukerhi v. Afonughe (1976) 1 NSCC 249. He said that none of the Supreme Court cases which were decided after the decision in Lawani v Lemonu (supra) were cited in the Uyovwukerhi’s case and so invited this court to prefer and allow the line of decisions which followed Bassey v. Ekanem (supra). He finally submitted that the claim for damages arising from the rights of the Plaintiffs to “fresh water creek” and/or based on loss of fisheries ought not to have been entertained as the plaintiffs have not established their legal right thereto.

On the application of the doctrine of Res Ipsa Loquitur, learned counsel referred to the pleadings and evidence and contended that if there is evidence of how the occurrence took place, an appeal to Res Ipsa Loquitur is misconceived and inappropriate and he submitted that the doctrine was misapplied in this case.

Lastly, dealing with the damages awarded which were based on the valuers Reports, parts of which were found to be hearsay evidence and therefore inadmissible, learned counsel submitted that they are manifestly baseless and excessive and should not have been used to complete the damages. In conclusion he urged this court to allow the appeal.

Regarding issue 1, learned counsel for the respondents referred to the Writs of Summons in the consolidated suits which were filed at the High Court of Justice, Warri, several years before the promulgation of the Decrees alluded to by the appellant and argued that when the suits were consolidated in 1983, the Delta State High Court enjoyed concurrent jurisdiction with the Federal High Court by virtue of Section 236 of the 1979 Constitution (then in operation) and submitted that Decrees No. 59 Admiralty Jurisdiction Decree 1991, the Federal High Court Amendment Decrees No. 66 of 1991 and 16 of 1992 and the Constitution (Suspension and Modification) Decree No.107 of 1993 were promulgated in response to the judgment of this Court in Western Steel Works v Iron and Steel Workers Union (1987) 1 NWLR (Pt.49) 288 at 288 per Aniagolu JSC where he clearly stated that Section 236 conferred unlimited jurisdiction on the State High Court in Admiralty Matters thereby making that jurisdiction to be concurrent with that of the Federal High Court. He submitted that when the Admiralty Jurisdiction Act 1962 was repealed, anything done which had taken place under the Act was saved and moreover, it is a cardinal principle of law that a statute cannot apply retrospectively unless it is made to do so by clear and express terms or it is in respect of purely procedural matters.

On whether the doctrine of Res Ipsa Loquitur was available to the plaintiffs/respondents, learned counsel maintained that the pleadings and evidence adduced showed that the respondents did not sufficiently know how the spillages occurred nor did they give explanation as to how they occurred and it is because of the uncertainty about how the spillages occurred that made them to rely on the doctrine. Learned counsel also submitted that aside the maxim of Res Ipsa Loquitur, the respondents also canvassed the rule in Rylands v. Fletcher (1868) 3 HL in saying that there would not have been spillages if there was no negligence in the maintenance of the pipes by the appellant.

On the quantum of damages awarded, learned counsel for the respondents contended that the valuation reports confirmed the pleadings and evidence adduced on which the trial court based its finding and which were affirmed by the court below. It was further submitted that the valuer’s report was expert evidence and is admissible under Section 57 of the Evidence Act.

The pivot of the appellant’s appeal that the consolidated actions commenced by the respondents as plaintiffs in 1983 abated was hinged on Sections 7(6) and 8(1) of the Federal High Court Act Decree No. 60, 1991 which state: –

“7(6) Any decision made after the commencement of this section by any court of law in any purported exercise of any power under the Constitution of the Federal Republic of Nigeria 1999 or of any Federal or State law shall, as from the date of making of the decision be null and void if it…

(a) has declared the decision invalid or the court incompetent to exercise exclusive jurisdiction in respect of any of the matters specified under section 7(1) or (2) of this Act before it was substituted by this section; or

(b) has conferred or purported to confer on any other court apart from the Court, concurrent jurisdiction in respect of the matters specified under section 7 of this Act before it was substituted by this section.

Provided that any decision taken by any Court other than the Court as a result of the power of the concurrent jurisdiction so conferred shall be valid but all other cases pending in the said other courts, other than the Court of Appeal, shall, at the commencement of this section, abate and the Judge before whom it is pending shall transfer them to the Registrar of the Court to be heard as new suits.

8(1) In so far as jurisdiction is conferred upon the Court in respect of the causes or matters mentioned in the foregoing provisions of this part of this Act, the High Court or any other court of a State or of the Federal Capital Territory, Abuja shall, to the extent that jurisdiction is so conferred upon the Court, cease to have jurisdiction in relation to such causes or matters”.

However this argument is punctured in the contention by learned counsel for the respondents who argued that the State High Court had jurisdiction to hear the cases to finality and he rooted this argument in Section 8(3) of Decree No. 60 of 1991 which stipulates as follows:

“8(3) Nothing in the foregoing provisions of this section shall affect the jurisdiction and all other powers of the High Court or any court of a State to continue to hear and determine causes and matters which are part – heard before such court at the date of the assumption of the functions of the Federal High Court or at the date when jurisdiction is otherwise conferred on the Court by the President, and any proceedings in any such causes or matters, which are still part-heard at the expiration of the period of six months beginning with the date of the assumption of the functions of the Court or the date when jurisdiction is otherwise conferred on the Court, shall abate on the expiration of that period.”

To appreciate the arguments of learned counsel to the parties, it is necessary to go into the historical development of the Federal Revenue Court which has metamorphosed into the Federal High Court. The philosophy behind the creation of the Court is that under a Federal Constitution there are items on the Exclusive and concurrent Legislative List on which the Federal Parliament exercises power to legislate. Ordinarily in a federal set up, the Federal Courts would adjudicate over matters in the exclusive legislative list such as banking. The approach of the 1960 and 1963 Constitutions of Nigeria was to empower the Federal legislature to authorize the regional courts to exercise federal judicial power. In pursuance of this authority, the federal legislature made laws conferring upon the State’s Magistrate and High Courts jurisdiction to adjudicate matters arising under federal laws. There being no federal courts of first instance in the states before the promulgation of the Federal Revenue Court Decree (known as Decree No. 13 of 1973) which vested jurisdiction in the court to determine civil causes and matters connected with or pertaining to – “banking, foreign exchange, currency or other fiscal measures,” the High Courts of the then regions were given authority which enabled them to adjudicate in matters within the exclusive competence of the Parliament by virtue of Section 3 of the Regional Courts (Federal Jurisdiction) Act Cap.177 Vol. V Laws of the Federation of Nigeria 1958 which provided as follows:-

“Where by the law of a region jurisdiction is conferred upon a High Court or a Magistrate’s Court for the hearing and determination of civil causes relating to matters with respect to which the Legislature of the region may make laws, and of appeals arising out of such causes, the court shall, except in so far as other provision is made by any law in force in the region, have the like jurisdiction with respect to the hearing and determination of civil causes relating to matters within the exclusive legislative competence of the Federal Legislature, and of appeals arising out of such causes.”

The intervention of Decree No. 13 of 1973 withdrew the jurisdiction permitted to Regional High Courts relating to some matters within the exclusive legislative competence of the Federal legislature and conferred it on the Federal Revenue Court. The jurisdiction of the State High Courts in the same subject of banking had been directly derived from the Regional Courts (Federal Jurisdiction) Act and it was the same Act and other specified enactments e.g. Admiralty Jurisdiction Act 1962 which allowed the Regional (State) High Courts to have jurisdiction over other Federal matters relating to revenue, taxation of companies, customs and excise, foreign exchange, currency, copyright, patent, designs, trade mark, Admiralty etc. See: N.D.I.C. v. Okem Enterprises Ltd (2004) 10 NWLR (Pt.880) 107.

The Federal High Court Act enacted in 1976 provided in Section 7, the jurisdiction and law to be administered by the Court. The Section states:-

“7(1)The Court shall have and exercise jurisdiction in civil causes and matters –

(a) relating to the revenue of the Government of the Federation in which the said Government or any organ thereof or a person suing or being sued on behalf of the said Government is a party;

(b) connected with or pertaining to –

(i) the taxation of companies and of other bodies established or carrying on business in Nigeria and all other persons subject to Federal taxation,

(ii) customs and excise duties,

(iii) banking, foreign exchange, currency or other fiscal measures;

(c) arising from

(i) the operation of the Companies and Allied Matters Act or any other enactment regulating the operation of companies incorporated under the Companies and Allied Matters Act,

(ii) any enactment relating to copyright, patents, design, trade marks and merchandise marks;

(d) of Admiralty jurisdiction.

(2) The Court shall also have and exercise jurisdiction and powers in respect of criminal causes and matters arising out of or connected with any of the matters in respect of which jurisdiction is conferred by subsection (1) of this section

(3) The jurisdiction conferred under subsection (1) of this section in respect of criminal causes and matters shall without prejudice to the generality of that subsection and subject to Section 64(3) of this Act include original jurisdiction in respect of offences under the provision of the Criminal Code Act being offences in relation to which proceedings may be initiated at the instance of the Attorney-General of the Federation.

(4) The National Assembly may by an Act confer jurisdiction on the Court in respect of such other causes and matters of like nature as those set out in the foregoing subsection as it may, from time to time, at its discretion specify”.

It can be seen that the jurisdiction of the Federal High Court was being expanded to enable it handle other cases which were not included when the court was Federal Revenue Court and these included criminal matters. The Court also continued to exercise concurrent jurisdiction with the State High Court in matters as specified in Section 7 of the Federal High Court Act including Admiralty matters until the promulgation of the Constitution (Suspension and Modification) Decree No.107 of 1993. Although Section 19 of the Admiralty Jurisdiction Decree 1991 which commenced operation on 30th December, 1991 gave exclusive jurisdiction in Admiralty causes and matters, whether civil or criminal to the Federal High Court which was further confirmed by the Federal High Court (Amendment) Decree No.60 of 1991, the enactment of the Federal High Court (Amendment) Decree No.16 of 1992 on 11th May, 1992 (but made to take retroactive effect on 1st January, 1992) suspended the operation of Decree No.60 of 1991 until 26th August, 1993 when the appropriate Order was published in the Federal Gazette for the coming into operation of the said Decree. It is the Constitution (Suspension and Modification) Decree No.107 of 1993 (now incorporated into the 1999 Constitution as Section 251) that has empowered the Federal High Court to have and exercise exclusive jurisdiction in Admiralty matters which include claims for liability incurred for oil pollution damage affecting fresh water creeks and fisheries.

The 1979 Constitution was in operation when the consolidated suits were instituted in 1983. Section 230 and 236 of the said Constitution provided for the jurisdiction to be exercised by the Federal and State High Courts respectively. The sections are reproduced as follows:-

“230(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have jurisdiction –

(a) in such matters connected with or pertaining to the revenue of the Government of the Federation as may be prescribed by the National Assembly; and

(b) in such other matters as may be prescribed as respects which the National Assembly has power to make laws.

(2) Notwithstanding subsection (1) of this section, where by law any court established before the date when this section comes into force is empowered to exercise jurisdiction for the hearing and determination of any of the matters to which subsection (1) of this section relates, such court shall as from the date when this section comes into force be restyled “Federal High Court”, and shall continue to have all the powers and exercise the jurisdiction conferred upon it by any law.

236(1) Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in exercise of its appellate or supervisory jurisdiction”

Thus it can be seen at a glance that the State High Court, by virtue of the unlimited jurisdiction which the 1979 Constitution conferred on it, had the competence to exercise concurrent jurisdiction with the Federal High Court in respect of the matters listed under Section 7 of the Federal High Court Act, 1976 and this was the state of affairs until the promulgation of the Admiralty Jurisdiction Decree No. 59 of 1991, the Federal High Court (Amendment) Act, 1991 and the Constitution (Suspension and Modification) Decree No.107 of 1993.

There is a strong leaning against construing a statue so as to oust or restrict the jurisdiction of the superior courts. Where a cause of action accrued before the advent of an alteration of the law governing same, the applicable law is the one which was in operation at the time when the cause of action accrued unless the subsequent legislation manifestly and unambiguously provides that the altered law takes retrospective effect. Section 6(1) of the Interpretation Act clearly deals with such a situation. It provides:

“6(1) The repeal of an enactment shall not-

(a) affect anything not in force or existing at the time when the repeal takes place;

(b) affect the previous operation of the enactment or anything done or suffered under the enactment”.

This principle of interpretation was applied by Taylor F.J. in Ogamioba v. Oghene (1961) 1 All NLR 64 at 66 where he said-

“It is a well known rule of construction that unless the contrary appears, the rights of the parties in a pending proceeding are not affected by the alteration of law during such pendency”.

See also: Are v. A.G. Western Region (1960) SCNLR 24; Unilorin v. Adeniran (2007) 6 NWLR (Pt.1031) 498

One of the issues considered by this Court in Orthopaedic Hospitals Management Board v. Mallam Umaru Garba and 2 Ors (2002) 14 NWLR (Pt.788) 538 was whether the High Court of Kano State truly lacked the jurisdiction to try the case and give judgment thereon, having regard to the provisions of Decree 107 of 1993 and Decree No. 60 of 1991 vis-a-vis the subject matter of the suit; and having regard also that the action was commenced in November 1992 before promulgation and commencement of Decree No. 107 of 1993. It was held that a right in existence at the time a new law is passed transferring jurisdiction of one court to another will not be lost. Ogundare JSC stated clearly at page 565 that Decree No 107 of 1993 was not an adjectival law but one of substantive law and since it did not operate retrospectively, it would not affect pending legal proceedings so as to deprive the State Court jurisdiction to conclude such proceedings. The decision in this case has demolished the argument in the appellant’s reply brief that the Admiralty Jurisdiction Decree No. 59 of 1991; the Federal High Court (Amendment) Decree No.16 of 1992 and the Constitution (Suspension and Modification) Decree No.107 of 1993 are procedural or adjectival laws which could be given retrospective interpretation. The Orthopaedic Hospital Management Board v. Garba and ors (supra) also decided that the abatement provision in the Federal High Court (Amendment) Decree No. 60 of 1991 was impliedly repealed by the Constitution (Suspension and Modification) Decree No. 107 of 1993. This was clearly stated in the leading judgment of Mohammed JSC where he said at page 553-554:

“I agree with the submission of the learned counsel that Decree No. 107 of 1993 which further amended the jurisdiction of the Federal High Court did not contain any abatement provision. That being so I am of the opinion that the argument of the learned counsel that the abatement provision is impliedly repealed is based on sound reasoning. Decree No. 107 of 1993 was the Constitution (Suspension and Modification) Decree 1993. It was enacted with the sole purpose of restoring and suspending of some and modification of other provisions of the 1979 Constitution. Section 230 of Decree 107 of 1993 provided for detailed jurisdiction of the Federal High Court. There is no provision for cases which are pending in the State High Courts to have abated and I agree that it could be implied that the provision of abatement in Decree 60 of 1991 had been repealed”.

This being the case, since the State High Court had jurisdiction to entertain admiralty cases begun in 1983, it was right to proceed with the trial leading to the judgment in 1995 after the promulgation of Decree No. 107 of 1993. The decision in Olutola v University of Ilorin (2004) 18 NWLR (Pt.905) 416 is not in conflict with Orthopaedic Hospital Management Board v. Garba and Ors (supra) because of the cause of action in which the plaintiff sought for a declaration that the decision which the University took in finding him guilty of plagiarism and removing him from the office of Dean of Education, Management and Planning was ultra vires the powers of the University, illegal, arbitrary, unconstitutional, null and void. The plaintiff also sought for an injunction. The action was filed on 13/1/1993 and trial in the suit continued until 1996 when judgment was entered in favour of the plaintiff. On appeal, the Court of Appeal directed the attention of counsel to the question touching upon the jurisdiction of the trial court to determine the matter in the first case in view of Section 230(1)(s) of Decree No. 107 of 1993. The appeal was allowed and this prompted the further appeal to the Supreme Court. In dismissing the appeal, the Supreme Court considered Section 230(1)(s) of Decree No.107 of 1993 which provides-

“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from –

(q) the administration of the management and control of the Federal Government or any of its agencies;

(r) subject to the provision of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies; and

(s) any action or proceeding for a declaration of injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies.

Provided that nothing in the provision of paragraphs (q), (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity”.

Since the University of Ilorin is an agency of the Federal government and the reliefs sought were to declare the action of the University as illegal, arbitrary, unconstitutional, null and void coupled with injunction, the action though begun in the Kwara State High Court before the promulgation of Decree 107 of 1993 had to be transferred to the Federal High Court and since this was not done, the appeal had to be allowed in the Court of Appeal and affirmed in the Supreme Court.

The arguments on jurisdiction therefore fail since the appellant in this appeal has not been shown to be an agent of the Federal Government and the claims of the Plaintiffs/Respondents were clearly not for declaratory reliefs and injunction. The issue on jurisdiction as raised in issue 1 in the appellant’s brief is resolved against the appellant.

Learned counsel for the appellant maintained that the claim for damages arising from the rights of the plaintiffs to fresh water creek and or based on loss of fisheries ought not to have been entertained as the plaintiffs have not established their legal right thereto. Learned counsel based his arguments on Section 3(1) of the Minerals Act Cap 220, Laws of the Federation of Nigeria which was considered in Bassey v Ekanem 14 WACA 364 and applied in Evoyoma and Ors v. Daregba and Ors (1968) 1 All NLR 192 and Brigbo and Ors v. Pessu and Ors (1974) All NLR 575. He said that Bairamian JSC took a different view of the effect of Section 3(1) of the Minerals Act in Adeshina v. Lemonu (1965) All NLR 233 which was followed in Uyovwukerhi v. Afonughe and Anor (1976) Vol.10 NSCC 249. He invited this Court to prefer and follow the reasoning in Bassey v Ekanem (supra) or distinguish Adeshina v. Lemonu (supra).

Learned counsel for the respondent contended that issue No 2 is incompetent and should be discountenanced on the ground that it did not arise from any of the grounds of appeal. The objection was not addressed in the Reply Brief.

I have perused the grounds of appeal contained on pages 758-764 of the records. The complaint being made in ground 2 is that –

The Honourable Court of Appeal, Benin erred in law and on the facts in resolving appellant’s Issue No. 2 which embraced Grounds 1, 2 and 3 in that Court against the appellant.

In the particulars of error, particular 5 contains the following:-

“5. The impact of the Minerals Act and/or Land Use Act on the representative claim was devasting”.

I am satisfied that issue 2 arose from ground 2 and the said issue is not incompetent.

Section 3(1) of the Minerals Act Cap 121 Vol. 4 Laws of the Federation Nigeria which provides:-

“(1) The entire property in and control of all minerals and mineral oils in, under or upon lands in Nigeria, and of all rivers, streams and water courses throughout Nigeria, is and shall be vested in the State, save in so far as such rights may in any case been limited by any express grant made before the commencement of these Ordinances”, all property in and control of the streams and creeks over which the plaintiffs claimed fishing rights would appear to be vested in the Crown; and the claims for damages arising from the rights of the plaintiffs to fresh water creek and or based on loss of fisheries cannot be entertained since the plaintiffs cannot establish their legal right thereto”.

In Bassey v Ekanem (supra) the judgment of the Supreme Court was set aside and a non-suit entered because there was no evidence on whether or not the waters in which rights of fishing were claimed were a part of tidal waters. In his judgment, Verity CJ said at pages 364-365:-

“Neither the claim nor the terms of the judgment are precise as to the nature of the title held to be vested in the respondents but it was stated in the course of argument by counsel that they claim exclusive fishing rights over the stretch of water described as the fishing pond known as Inyang Asinyang.

It appears from the evidence that this water is not strictly speaking a pond although so described but it is in fact part of a series of creeks or streams linked with the No creek or river and eventually, it would appear with the Cross River”.

When dealing with Minerals Ordinance which was not being considered he said:-

“It was therefore a matter for consideration whether or not either party is by law entitled to any fishing rights therein”.

This reasoning prevailed in Evoyoma v. Daregba (1968) 1 All NLR 192 where earlier decisions of Braide v. Adoki 10 NLR 15, Bassey v. Ekanem (supra) and Adeshina v. Lemonu (1965) 1 All NLR 233 on the effect of Section 3(1) of the Minerals Act on fishing rights were considered. The essence of the dispute in Evoyoma v. Daregba (supra) was that the appellants, the plaintiffs (the Olota people) and the defendants (the Ogada People) were each claiming a declaration of title in respect of a riverine area called Ugborevborevbo which the defendants described as a “fishing pond” whilst the plaintiffs describe it as a “fishing stream”. The exact area claimed by each party was not identical as the plaintiffs claimed a larger area of Ugborevborevbo than the defendants, but each alleged the other side trespassed in the area which they claimed and each sought an injunction to prevent further trespassing as well as damages for the past trespass. The plaintiffs had also claimed a declaration of title to land on either side of “Ugborevborevbo” fishing stream, but the learned trial Judge dismissed that claim but learned counsel for the appellants, Chief Rotimi Williams argued that the effect of Section 3(1) of the Minerals Act was not considered at all in the trial either by the parties or by the learned trial Judge. In allowing the appeal and setting aside the judgment of the High Court and non-suiting the plaintiffs, Lewis JSC held that the Common Law of England recognises no rights of ownership in running water, and if a declaration of title to a river, stream or watercourse is sought then it will be necessary not only to have evidence of any rights recognised by the customary law of the area but also to consider the exact meaning to be given to Section 3(1) of the Minerals Act and in so doing to determine whether the word “property in and control of” in that subsection govern the words “rivers streams and watercourses” as well as “minerals and mineral oils” or whether only the words “control of” govern the words “rivers, streams and water courses”. In the appeal, it did not appear that it was ever properly established before the trial Judge whether what each side sought was a declaration of title to the stream or ponds, as they respectively referred to the area, or a declaration of title to fishing rights within that stream or pond.

However in Adeshina v. Lemonu (1965) 1 All NLR 233 where the trial Judge granted the plaintiff, whose nets had been seized by the defendant, while fishing in the stretch of tidal waters near Apapa, an injunction to restrain the defendant from molesting him in his fishing in that stretch and the defendant appealed against the grant of injunction contending that the public rights of fishing were taken away by Section 3 of the Minerals Act, that the decision in Braide v Adoki was wrong, and that it was not competent for the plaintiff to sue, as the Crown was the real owner, the appeal was dismissed. Bairamian JSC in delivering the judgment said:-

“The argument for the appellant is that those public rights of fishing were taken away by Section 3, which vested the rivers, streams and water-courses in the Crown (now in the State)”.

This argument overlooks the presumption against implicit alteration of the law: see Maxwell on the Interpretation of Statutes (10th ed.) p.81, and Craies on Statute Law (5th ed.) p. 310. Maxwell puts it as follows:-

“One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits, the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness and to give any such effect to general words, simply because they have a meaning that would lead thereto when used in either their widest, their usual, or their natural sense, would be to give them a meaning other than that which was actually intended, General words and phrases, therefore, however, wide and comprehensive they may be in their literal sense must usually be construed as being limited to the actual objects of the Act. It would be perfectly monstrous to construe the general words of the Act so as to alter the previous policy of the law. In construing the words of an Act of Parliament we are justified in assuming the legislature did not intend to go against the ordinary rules of law, unless the language they have used obliges the court to come to the conclusion that they did so intend.”

In Brigbo v Pessu (1974) All NLR 574, the plaintiffs’ claim against the defendants jointly and severally for

“(a) a declaration of title to the Creek known as Arotaghan lying and situate at Korokoto in the Warri Division.

(b) and against the 1st to 7th defendants the 1st and 2nd plaintiffs claim jointly and severally the sum of 300 Euro being damages for trespass that on or about the month of May 1956, without plaintiffs’ consent first obtained, the 1st to 7th defendants entered the plaintiffs’ creek Arotaghan and there fished the same and continue to fish the same.”

After the parties had filed their first set of pleadings, the main defence was that the plaintiffs were asking for a declaration over creeks, the ownership of which by statute was vested in the State. The plaintiffs then sought leave to amend their writ and their statement of claim. When the application to amend the writ was granted, the second set of defendants appealed against the order to the Federal Supreme Court but the appeal was struck out and the matter proceeded up to judgment. The trial court gave judgment for them and awarded them a possessory title on the basis that they had no absolute interest in the land concerned, but merely held it as subjects of the Olu of Warri. On appeal to the Supreme Court, the appeal was dismissed and the nature of the title was altered.

Lastly in Uyovwukerhi v. Afonughe and Anor (1976) Vol. 10 NSCC 249 one of the issues considered in the case was the effect of Section 3(1) of the Minerals Act on the right of fishing generally. The matter was determined by the Olomu/Effuruntor Customary Court which granted a declaration of title and injunction in favour of the plaintiffs. An appeal by the defendants to the Chief Magistrate Court was dismissed except the award made on special damages. A further appeal to the High Court was allowed. The plaintiff/respondent appealed finally to the Supreme Court. It was held that although the Minerals Act vested the rivers creeks etc in the State, there is nothing in it point to an intention to affect existing rights of fishing. The rule of presumption against implicit alteration of law applied. The court followed the decision in Adeshina v Lemonu (supra).

Learned counsel for the appellant has urged on this court to either follow the decision in Bassey v Ekanem (supra) or distinguish this case from the decision in Adeshina v. Lemonu (supra) and Ugovwukerhi v Afonughe (supra). The preference shown by learned counsel to Bassey v Ekanem (supra) instead of Adeshina v Lemonu (supra) is in support of the view that once the claim relates to fishing in rivers, streams and water courses (which includes creeks) it is not maintainable because Section 3(1) of the Minerals Act vests the property in them in the State. On the other hand, the decision in Adeshina v Lemonu (supra) which followed Braide v. Adoki (supra) where the trial Judge held that the right of common fishery in tidal waters, declared by the Full Court in 1914 in Amachree v. Kalio (1914) 2 NLR 108 to be a public right both under common law and natural law, was not affected by Section 3(1) of the Minerals Act of 1916 which vested in the Crown, the property in minerals and all rivers, streams and water courses.

This latter decision will enable the plaintiffs maintain their action against the defendant for the oil spillages which devasted their flora and fauna. The respondents’ right to fishing in the creeks as enumerated in paragraph 3 of the Statement of Claim in W/16/83; W/17/83; W/72/83 and W/80/83 (see pages 154, 163, 318 and 355 respectively) was affected and the payment of compensation was made to each of the various communities for loss of income suffered by the community members who have a right to fish in the creeks located in their community to the exclusion of other members who are not members of the particular community. The award is for the temporary loss of fishing caused by the oil spillages. The second issue is resolved in favour of the respondents and against the appellants on the principle that the right of common fishery in tidal waters is a public right both under common law and natural law and was not affected by Section 3(1) of the Minerals Act which was first enacted in 1916.

Learned counsel for the appellant submitted on issue 3 that the doctrine of res ipsa loquitur is applicable to actions for injury by negligence where no proof of such injury is required beyond the injury itself. Reliance on the doctrine of res ipsa loquitur argued by learned counsel is a confession by the plaintiff that he has no direct and affirmative evidence of the negligence complained of against the defendant, but that the surrounding circumstances apply to establish such negligence; and so if the facts are sufficiently known or where the plaintiff gave explanation, the doctrine will no longer apply. Learned counsel submitted that the doctrine was misapplied in this action since the plaintiffs effusively demonstrated in their pleadings and evidence that they knew the cause of the spillages on 25/1/82 and 14/12/82 respectively.

Learned counsel for the respondents referred to paragraphs 21, 22 and 23 of the 2nd Further Amended Statement of Claim and submitted that the pleaded facts and evidence adduced in support of same do not show that the respondents knew the cause of the spillages but they merely described the physical state of the damaged and or ruptured manifold/pipeline as physically observed by the respondents and their witnesses. It is therefore contended that the maxim is clearly applicable in this instance since it is a fact that if the appellant’s pipelines were well maintained and fault-free they would not ordinarily burst, crack or rupture and spill their contents. He therefore submitted that the two lower Courts were right to hold that the doctrine of res ipsa loquitur was available to the respondents. Learned counsel further argued that aside the maxim of res ipsa loquitur prayed in aid of their cases, the appellant’s culpability was canvassed on other grounds, namely the reliance on the Rule of Rylands v. Fletcher (supra) and the point was noted, considered and accepted by the court below.

Considering the plea of Res Ipsa Loquitur and the reliance on the Rule of Rylands v Fletcher which the respondents as plaintiffs made in the alternative, Rowland JCA (of blessed memory) said at pages 729-730:-

“At page 26 of the appellant’s brief, the case of Chanchangi v. N.R.C. (1996) 5 NWLR (Pt.446) 58 is relied upon in aid of appellant’s contention that the doctrine of Res Ipsa Loquitur does not avail the respondents. It seems to me that the case of Chanchangi (supra) supports the respondents in the contention that the doctrine is applicable because the respondents in the case in hand do not know how the pipeline got ruptured, cracked or broken (sic) as borne by the totality of the evidence contained in the record. I therefore hold that the doctrine of Res Ipsa Loquitur is clearly applicable in these consolidated cases on appeal. It should be noted that pipelines that are well maintained and fault free do not ordinarily burst crack and rupture spilling their contents. (See evidence of DW4)……. the fact that the respondents particularised items of negligence in their pleadings cannot constitute a bar to respondents raising the maxim or doctrine of Res Ipsa Loquitur against the appellant. The learned trial Judge was therefore right in his decision that the maxim of Res Ipsa Loquitur availed the respondents in the present consolidated cases on appeal”

I hasten to add also that the learned trial Judge was also right in his application of the Rule in Rylands v Fletcher. In Machine Umudje and Anor v. Shell (1975) 9-11 SC 95 at 106: the Supreme Court said:-

“With reference to the escape of oil waste which the respondents claimed had damaged their ponds and lakes, the findings of the learned trial Judge were that crude-oil wastes previously collected in a pit burrowed by and in control of the appellants, escaped into the adjoining lands of the respondents where it damaged the ponds and lakes in Unenurhie land and killed the fishes therein. As already explained, liability on the part of an owner or the person in control of an oil-waste pit, such as the one located at Location E in the case in hand, exists under the rule in Rylands v Fletcher although the escape has not occurred as a result of negligence on his part. There is no evidence of any novus actus interveniens in regard to the escape of the crude oil – waste, nor is there any evidence that respondents either consented to, or in any way, contributed to the allocation of the crude oil – waste in location E: nor is there any evidence of justification, under any statutory provisions, for collection of the same by the appellants who cannot, therefore avail themselves of any of the exceptions to the rule aforesaid (Rylands v Fletcher). The appellants are therefore liable under the rule in Rylands v Fletcher, for damages arising from the escape of oil-waste from the pit…”

The case of Umudje v Shell (supra) also laid down that where respondents pleaded damage resulting from the escape of oil-waste and also charged the appellant with negligence and, in their pleadings, gave particulars therefore, and the trial Judge finds in favour of the respondents on the issue, the appellants would also be liable in negligence for damages resulting from the escape of oil waste; and it is well settled that a single act of a defendant may give rise to liability under both heads of tort i.e. (1) negligence and (2) the rule in Rylands v Fletcher. See: Attorney-General and Ors v Cory Brothers (1921) 1 AC 521 per Viscount Haldane. The affirmation by the court below that the learned trial Judge was right in his application of the doctrine of Res Ipsa Loquitur, the rule in Rylands v Fletcher and the law on evidential burden of proof is therefore faultless and is further affirmed by this court.

On the issue of damages, learned senior counsel contended that the lower Courts accepted the evidence of PW1 and the damages awarded were based on his Valuation Reports, Exhibits 1-4. He said that the trial court found part of the evidence of PW1 to be hearsay and discountenanced it since it went to no issue. He therefore submitted that having found portions of PW1’s valuers data figures and information to be hearsay and therefore inadmissible, the Valuers Reports Exhibits 1-4 on which the learned trial Judge anchored his awards was clearly not reliable and the entire evidence of PW1 ought to have been disregarded and the said valuation reports should not have been used to compute damages.

Learned counsel for the respondents submitted that the damages awarded were founded on findings of fact by the trial court which were upheld by the court below. He said that apart from the valuation reports, the respondents pleaded and led copious and direct evidence as witnesses outside the valuation reports on the nature and quantum of damages suffered by them and submitted that in the face of the astronomical inflation suffered by the Nigerian economy, the award of damages claimed by the respondents in 1983, a quarter of a century ago cannot reasonably be described as excessive even as at the time the cases were instituted in 1983.

In his evaluation of the evidence called by the parties, the learned trial Judge accepted the evidence of plaintiffs’ witnesses and rejected the evidence of the defence because the team of experts called by the defence carried out their work three years after the spillage had occurred. There is also evidence which the trial Judge accepted that some fishes died in the ponds and the ones trapped in the fish fences also died as a result of the spillage.

Aside the opinion expressed by PW1 on the ownership of the nets which goes to no issue, the valuers reports Exhibit 1-4 were not impugned.

The lower Court reviewed the evidence on which the learned trial Judge based his awards in the consolidated cases and arrived at the following conclusion on page 737:-

“Apart from the evidence of the Valuer – PW1 and Exhibit 4, the respondents as represented by the plaintiffs on record and their witnesses gave direct evidence of the special and general damages suffered by them as result of the spillages. Evidence which the learned trial Judge accepted.

In view of the direct compelling and largely uncontradicted evidence available to the learned trial Judge, I am convinced that the damages awarded by the learned trial judge are not baseless or erroneous or in any event offensive as the awards are amply supported by evidence.”

The concurrent findings of fact made by the two lower Courts are not perverse. I find that the appeal totally lacks merit. It was fought principally on the assumption that Admiralty jurisdiction is exclusively vested on the Federal High Court and the consolidated suits which were commenced in 1983 before the then Bendel State High Court ought to have abated after the promulgation of the Admiralty Jurisdiction Decree No. 59 of 1991, the Federal High Court (Amendment) Decrees No. 60 of 1991 and 16 of 1992 and the Constitution (Suspension and Modification) Decree No.107 of 1993. The appeal is therefore dismissed in its entirety and I award costs of N500,000.00 to each set of respondents in the consolidated suits against the appellant.

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SC.52/2005