The Shell Petroleum Development Company Of Nigeria Limited V. Kwameh Ambah (1999)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C.

By a writ of summons filed in Warri High Court of the then Bendel State, (now Delta State), the plaintiff, Kwameh Ambah (for himself and on behalf of Wesewese family of Ojobo in Burutu Local Government Area) claimed for the following relief against the defendant, the Shell Petroleum Development Company:

Claim-

“The plaintiff’s claim for himself and on behalf of Wesewese family of Ojobo in Burutu Local Government Council Area is for the sum of N30,000.00 (thirty thousand naira) being special and general damages suffered by the plaintiff and members of his family when the defendant by their agents and or servants destroyed the fish ponds, creeks, lakes, and channels lying and situate at Asesaoba near the Beniseide oil fields in Burutu Local Government Council Area, Bendel State of Nigeria in 1977 over which this honourable court exercises jurisdiction.

The defendants have neglected, failed and or refused to negotiate and or pay reasonable and or adequate damage (compensation) to the plaintiff and members of his family, despite repeated demands, wherefore, the plaintiff claims N30,000.00 (thirty thousand naira) as damages.”

Parties joined issues and exchanged pleadings.

In the further amended statement of claim and in paragraphs 6, 7, 8 and 9 thereof, the plaintiff averred as follows:

“6. In complete disregard of the plaintiff’s letter referred to above, the defendant’s agents and servants covered up fish ponds, fish lakes, fish channels and creeks of the plaintiff’s family in the adjoining area with the mud dredged from the area actually acquired, causing the plaintiff and his family colossal loss of their only means of livelihood, and in May, 1977, the plaintiff again wrote to the defendant requesting it to send its officials to the area to assess the damage done to them by the defendant. defendant sent no reply neither did it take any steps to assess the said damage. Plaintiff shall at the hearing rely on the said letter dated 24th May, 1977.

7. Again on 1st August, 1977, plaintiff sent a reminder to the defendant which also fell on deaf ears. The said fish ponds, fish lakes, creeks and channels have since become permanently destroyed. The property of the plaintiff’s family so destroyed and or rendered useless by the defendant and their value by way of special damage are:

a. Ten large fish ponds at N1,000.00 per fish pond ….. ….. ….. N10,000.00

b. Six medium size fish ponds at N500.00 per fish pond ….. N3,000.00

c. Eight big fish lakes at N500 per fish lake ….. ….. N4,000.00

d. Twenty long fish channel at N500 per fish channel ….. ….. N10,000.00

Plaintiff shall rely on the said letter dated 1st, August, 1977 at the hearing.

8. Plaintiff and his family made several attempts by visits to the office of the defendant at Warri to make the defendant see reason for the assessment and payment of reasonable and adequate compensation to them, but without avail.
9. The defendant has failed, neglected and or refused to pay reasonable and adequate compensation to the plaintiff and members of his family, despite repeated demands wherefore the plaintiff claims as follows namely:

‘The plaintiff’s claim for himself and on behalf of Wesewese family of Ojobo in Burutu Local Government Council Area is for the sum of N300,000 (three hundred thousand naira) being special damages and N3,000 (three thousand naira) being general damage suffered by the plaintiff and members of his family when the defendant by its agents and or servants destroyed the fish ponds, creeks, lakes and channels lying and situate at Aseaoba bush near the Beniseide oil fields in Burutu Local Government Council Area, Bendel State of Nigeria in 1977 over which this honourable court exercises jurisdiction.”

After the conclusion of the trial, the trial Judge reserved judgment for 11th June, 1987. On 7th May, 1987, Chief A. O. Akpedeye, learned counsel for the plaintiff, filed a motion on notice dated 6th May, 1987 with the following prayer

“An order amending the further amended statement of claim hereto attached and marked Exhibit ‘A’ … and that the still further amended statement of claim be deemed as duly filed and served having paid the appropriate fees.”

In support of the application, Kwameh Ambah, the plaintiff, swore to an affidavit in which he deposed to the following facts in paragraphs 3, 4, 5 and 6 to wit:

“3. That on the 9th day of October, 1986 I gave evidence before this honourable court in support of paragraph 7 of the further amended statement of claim that my family used to realise annually the various sums attached to the various sizes of fish ponds, fish lakes and fish channels prior to the total destruction of the said fish ponds, fish lakes and fish channels, by the defendants/respondents herein.

4. That I have since discovered that the said paragraph 7 of the further amended statement of claim was not framed to reflect the fact that the fish yields were an annual event.
5. That my counsel A. O. Akpedeye has advised me and I verily believe in his advice that leave of this honourable court must be sought and obtained before the necessary amendments in the pleadings can be affected.
6. That the proposed amendment is underlined (sic) in the still further amended statement of claim annexed to this affidavit and marked as Exhibit ‘A’.”

On 11th June, 1987, the application was moved and granted despite strong opposition by learned counsel for the defendant. After the grant of the application, Odita, J. delivered his judgment on the same day in favour of the plaintiff and in line with the still further amended statement of claim. He concluded thus –

“On the whole, the plaintiff succeeds in his claim for special damages and I therefore enter judgment for the plaintiff against the defendant for the sum of N300,000,00 being special damages and, for compensation for the fish ponds, lakes and channels damaged by the defendant outside the area acquired by the defendant. There shall be costs of N1,000.00 to the plaintiff against the defendant. I shall not conclude this judgment without saying that the defendant ought not to allow this case to go to court. It is a matter they ought to have negotiated and settled out of court as it appears to me that they have no defence whatsoever to this action.”

Aggrieved by the decision of the trial court, the defendant lodged an appeal against it in the Court of Appeal, Benin Division. In its reserved judgment delivered by Akpabio, J.C.A, with which Adio, J.C.A. (as he then was) and Ogbe, J.C.A. both agreed, dismissed thc appeal with slight reduction of the amount awarded as special damages from N300,000 to N297,000.

The defendant has further appealed to this court.

In compliance with Order 6 rules 1 and 2 of the Supreme Court Rules. Parties filed and exchanged briefs of argument. The defendant/appellant and the plaintiff/respondent will henceforth in this judgment be referred to as the appellant and the respondent respectively.

In the brief of argument filed by the appellant, two issues have been raised for consideration and determination by this court. The two issues are:

i. Whether the learned Justices of the Court of Appeal were right in holding that the learned trial Judge was right in granting an amendment of the respondent’s pleadings at the stage he did.

ii. Whether having regard to the state of the pleadings, evidence and the law, the learned Justices were right in awarding special damages of N297,000.00 at the rate of N27,000.00 for eleven years”

Respondent did not formulate any issue in his brief but adopted the two in the appellant’s brief.

Under issue (i) learned counsel for the appellant contended that although Order 14 of the defunct Bendel State High Court (Civil Procedure) Rules, 1976 provides for amendment of pleading at any stage of the proceedings before judgment, no such amendment will be allowed if it is meant to ambush, prejudice or overreach. He argued that the application was made mala fide and that its grant had done injury to the appellant which no award of costs could compensate. He cited Chief Ojah Ojah & Ors. v. Chief Eyo Ogboni & Ors. (1976) 4 SC 69 at 76. He submitted that the very late amendment to the further amended statement of claim had changed the claim from one for the value of the fish ponds, lakes, and channels to that for loss of use or purported annual income without giving the appellant the opportunity of contesting the claim on the basis of loss of use. In support, the following cases were cited – Bello Adegoke Foko & Ors. v. Oladokun Agboola Foko & Ors. (1968) NMLR 441 at 446 – 447.

In reply to issue (i) it was the submission of A. O. Akpedeye, learned counsel for respondent that once pleadings are amended, the amended pleading relates back to the date the original pleading was filed and replaces it. He argued that the amendment granted to the respondent was proper and in the furtherance of the course of justice in order to bring the pleading in line with the evidence already received. Learned counsel further argued that the respondent at no time made a claim for the value of the damaged fish ponds, lakes and streams, but for the loss of income derivable from the damaged fish ponds, lakes and streams. Learned counsel cited several decided cases to buttress his submission amongst which are Warner v. Sampson (1959) 1 QB 297; Oguma v. I.B.W.A. (1988) 1 NWLR (Pt.73) 658; Okafor v. lkeanyi (1979) 3-4 S.C. 99 and Order 14 of the Bendel State High Court (Civil Procedure) Rules.

On issue 2, it is the submission of learned counsel for the appellant that no where in the amended statement of claim did the respondent plead that he was claiming special damage for the period 1976 – 1978 or that the claim was for a continuing loss of income until judgment or that it was for a reasonable period of replacement. He claimed that there was no such evidence on these issues as it was the learned counsel for the respondent that raised them in his final address to the trial court. He submitted that having regard to the state of pleadings, the evidence and the law, both the trial court and the Court of Appeal were in error in holding that special damage at the rate of N27,000 per annum for eleven years had been proved. He referred to the evidence of P.W.1 and contended that the witness did not give evidence of special damage with particulars but only that he was getting the sum stated in his evidence without stating any basis for the amount. Learned counsel reiterated that the respondent’s claim is for compensation for the total destruction of the fish ponds and that the amended damages of N297,000.00 is erroneous in law as it was not based on the value of the land or property alleged destroyed or the diminution of its value. He urged this court to allow the appeal.

In reply, learned counsel for the respondent submitted that the unchallenged evidence adduced by the respondent supported and was in line with the paragraph 7 of the statement of claim as still further amended. It was argued that the loss of income suffered by the respondent was continuous and therefore the claim for an award of earnings for a period of 11 (eleven) years cannot he said to be unreasonable. He cited decided cases in support of his submissions and urged the court to dismiss the appeal.

The first issue complained of the leave granted to the respondent to still amend the further amended statement of claim at the very late stage it was applied for and granted by the learned trial Judge.

The principle of law relating to the amendment of pleadings is that it can be granted at any stage of the proceedings provided it does not introduce a new cause of action or will over-reach or is prejudicial to the other party. See Eshelby v. Fed. European Bank (1932) 1 K.B 254: Loutfi v. Czarnikow Ltd. (1952) 2 All ER 823; Alhaji v. Abuh (1988) 3 NWLR (Pt.85) 696 and Order 14 of the Bendel High Court (Civil Procedure) Rules, 1976 (Cap 65). Where an amendment has become imperative by reason of variance between the statement of claim and the evidence adduced at the trial by the plaintiff, the court has always granted it even after the completion of the trial and judgment reserved. See Ewarami v. A. C.B. (1978) 4 S.C. 99 and Okafor v. Ikeanyi (1979) 3 and 4 SC 99 where in the latter case this court granted the amendment of the plaintiffs/respondent’s statement of claim to fall in line with his evidence, which was originally refused by the trial court. The grant of the application was therefore in order. The issue is resolved against the appellant.

But this notwithstanding, are both the trial court and the Court of Appeal right in their findings that the evidence adduced successfully proved the respondent’s claim as contained in the still further amended statement of claim. I shall try to answer this poser by examining the still further amended statement of claim and the evidence adduced in relation thereto.

The relevant paragraphs of the further amended statement of claim and the still further amended statement of claim are paragraphs 6 and 7 respectively of the two pleadings. Paragraphs 6, 7 and 9 of the further amended statement of claim are as follows:-

‘”6. In complete disregard of the plaintiffs letter referred to above, the defendant’s agents and servants covered up fish ponds, fish lakes, fish channels and creeks of the plaintiffs family in the adjoining area with the mud dredged from the area actually acquired, causing the plaintiff and his family colossal loss of their only means of livelihood, and in May, 1977, the plaintiff again wrote to the defendant requesting it to send its officials to the area to assess the damage done to them by the defendant. Defendant sent no reply neither did it take any steps to assess the said damage.

Plaintiff shall at the hearing rely on the said letter dated 24th May, 1977.

7. Again on 1st August, 1977, plaintiff sent a reminder to the defendant which also fell on deaf ears. The said fish ponds, fish lakes, creeks and channels have since become permanently destroyed. The property of the plaintiffs family so destroyed and or rendered useless by the defendant and their value by way of special damage are:

a. Ten large fish ponds at N1,000 per fish pond .. N10,000.00

b. Six medium size fish ponds at N500 per fish pond ….. N3000.00

c. Eight big fish lakes at N500 per fish lake ….. ….. N4,000.00

d. Twenty long fish channels at N500 per fish channel . … N10,000.00

Plaintiff shall rely on the said letter dated 1st August, 1977 at the hearing.

9. The defendant has failed, neglected and or refused to pay reasonable and adequate compensation to the plaintiff and members of his family, despite repeated demands wherefore the plaintiff claims as follows namely-

‘the plaintiff’s claim for himself and on behalf of Wesewese family of Ojobo in Burutu Local Government Council Area is for the sum of N300,000 (three hundred thousand naira) being special damages and N3,000 (three thousand naira) being general damage suffered by the plaintiff and members of his family when the defendant by its agents and or servants destroyed the fish ponds, creeks. lakes and channels lying and situate at Asesaoba bush near the Beniseide oil fields in Buru Local Government Council Area, Bendel State of Nigeria in 1977 over which this honourable court exercises jurisdiction’.”

While paragraphs 6, 7 and 9 of the still further amended statement of claim state thus:

“6. In complete disregard of the plaintiff’s letter referred to above, the defendant’s agents and or servants covered up fish ponds, fish lakes, fish channels and creeks of the plaintiffs family in the adjoining area with the muddleedged from the area actually acquired, causing the plaintiff and his family colossal loss of their only means of livelihood, and in May, 1977, the plaintiff again wrote, to the defendant requesting it to send its officials to the area to assess the damage done to them by the defendants, defendant sent no reply neither did it take any steps to assess the said damage. Plaintiff shall at the hearing rely on the said letter dated 24th May, 1977.

7. Again on 1st August, 1977, plaintiff sent a reminder to the defendant which also fell on deaf cars. The said fish ponds, fish lakes, creeks and channels have since become permanently destroyed. The property of the plaintiff’s family as destroyed and or rendered useless by the defendant and their value by way of special damage are:

a. Ten large fish ponds at N 1,000 per fish pond per annum = N 10,000 per annum

b. Six medium size fish ponds at N500 per fish pond per annum = N3,000.00 per annum

c. Eight big fish lakes at N500 per fish, lake per annum = N4,000 per annum

d. Twenty long fish channels at N500 per fish channel per annum = N10,000,00 per annum”

Plaintiff shall rely on the said letter dated 1st August, 1977 at the hearing.

9. The defendant has failed, neglected and or refused to pay reasonable and adequate compensation to the plaintiff and members of his family, despite repeated demands wherefore the plaintiff claims as follows namely:

‘The plaintiff’s claim for himself and on behalf of Wesewese family of Ojobo in Burutu Local Government Council Area is for the sum of N300,000 (three hundred thousand naira) being special damages and N3,000 (three thousand naira) being general damage suffered by the plaintiff and members of his family when the defendant by its agents or servants destroyed the fish ponds, creeks, lakes and channels lying and situate at Asesaoba bush near the Beniseide oil fields in Burutu Local Government Council Area, Bendel State of Nigeria in 1977 over which this honourable court exercises jurisdiction.”

The relevant part of the plaintiff’s evidence given by Mr. Kwameh Ambah, who sued for himself and on behalf of Wesewese family, reads as follows:

“We have 10 large fish ponds.

6 medium fish ponds.

8 big fish lakes.

20 long fish channels.

My family fish on the above properly annually.

We get a year N1,000 for each of the large fish pond.

The medium fish ponds give us N500.00 per year.

For each of the 8 big fish lakes we get about N500.00 a year.

We get N500.00 per year for each of the long fish channel.

Since the damage in 1976, we have not been getting the income from these ponds, channels and lakes.

We are claiming N300,000 from the defendant’s company being special and general damages we suffered.”

Under cross-examination the witness further stated:

“We did not get a valuer to value it but we collect yearly this amount. We have fish ponds, fish lakes, fish channels there but all are now destroyed. We cannot fish again. My claim is very genuine.”

The evidence of the plaintiff and respondent are not in line with the still further amended statement of claim and cannot be said to have proved the special damage of N300,000. Both paragraph 7 of the further amended statement of claim and paragraph 7 of the still further amended statement of claim fail to give particulars of special damage reflecting N300,000

The particulars in (a), (b), (c), (d) of paragraph 7 merely state the number of items destroyed and the value of each with the addition thereto of the word “per annum”. It was not stated therein from which year to which.

From paragraph 3 of the still further amended statement of claim, the respondent’s complained of the total destruction of items stated in paragraph 7 (a), (b), (c) and (d) without stating the period it was supposed to cover. The present action against the appellant was filed in court on 10th October, 1980. The claim, as I said earlier, never stated the number of years the special damage was supposed to cover.

It is not seriously disputed that the respondent is entitled to damages for the permanent destruction of the fish ponds and lakes by the appellant; but what is being complained of is the sum of N300,000 originally awarded to the respondent as special damage which was slightly reduced by the Court of Appeal to N297,000.

It is pertinent to state that the plaintiff’s claim in paragraph 7 supra of the still further amended statement of claim is that” the said fish ponds, fish lakes, creeks and channels have since become permanently destroyed.” The property of the plaintiff’s family as destroyed and or rendered useless by the defendant and their value by way of special damage are:

“(a) Ten large fish ponds at N1,000 per fish pond per annum = N10,000

(b) Six medium size fish ponds at N500 per fish pond per annum = N3,000

(c) Eight big fish lakes at N500 per fish lake per annum = N4,000

(d) Twenty long fish channels at N500 per fish channel per annum = N10,000

The respondent’s claim as averred is for compensation for the permanent destruction of the value of the properties listed above. No where in the still further amended statement of claim did the respondent claim for loss of use for any period of time. Their claim was for the value of the properties destroyed and not for the continual annual loss of catch of fish: and the addition of the words “per annum to the items particularised in paragraph 7 supra did not, in my view, change the nature of the respondent’s claim from that of such compensation for the value of their permanent destruction.

The respondent did not claim in their pleading for the period covering 1976 – 1987 as computed by both the trial court and the Court of Appeal, for continuing loss of income. It was the learned counsel for the respondent that raised this in his final address as recorded on page 48 of the record thus: “Paragraph 7 sets out the various items destroyed and the annual value realised from them before the destruction. Paragraph 9 is the cumulative value for 11 years since the destruction from 1976 – 1987.” The evidence of Kwameh Ambah, the plaintiff, prompted the late application for the amendment complained of by the appellant. Unfortunately the amendment to paragraphs 6 and 7 as reflected in the still further amended statement of claim was so badly and inadequately drafted that it could not be said to fall in line with the respondent’s evidence. Paragraph 9 as amended also did not provide the particulars of the N300,000 special damage.

The amended pleading did not aver that the respondent’s claim is for the continual loss of income resulting from the destruction of the items listed therein for the period 1976 – 1987. The claim still remains for compensation as a result of permanent destruction of the items by the appellant. Evidence given which is not in line with the facts pleaded goes to no issue and of no help to the party that produces it. See Emegokwue v. Okadigbo (1973) 4 SC 113; N.I.P.C. Ltd. v. Thompson Organization Ltd. (1969) 1 NMLR 99; Ukiw v. Samuels (1963) 2 AER 879 and Okafor v. Okitiakpe (1973) 2 SC 49.

Where there is a claim for total destruction of property, the measure of damages will be the value of the property at the time of its destruction. See Liesbosch Dredger v. S. S. Edison (1933) AC 449 and Darefooh v. Karan 7 WACA 113. This is based on the principle of restitutio in integrum. The total amount claimed by the respondent as compensation for the permanent destruction of items listed in the still further amended statement of claim is N27,000. This has not been contested by the appellant in this appeal. The amended sum of N297,000 awarded as special damage to the respondent by the Court of Appeal cannot be allowed to stand as it is not based on the facts pleaded by them. It is inappropriate.

For the reasons stated herein this appeal must succeed on the amount awarded as special damage. It is accordingly allowed and the amount is reduced to N27,000 in line with the respondent’s claim.

As the appeal only succeeds in part, I am not inclined to award costs to the defendant/appellant. Each party shall therefore bear his own costs in this appeal.

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SC.103/1994