Umudje & Anor V Shell -bp Petroleum Development Company Of Nigeria Limited (1975)

LawGlobal-Hub Lead Judgment Report

IDIGBE, JSC.

This is an appeal from the judgment of Ogbobine J., in the High Court of Midwestern State sitting at Ughelli in a rather inartistic, if not badly worded claim against Shell -BP Petroleum Development Company of Nigeria, the appellants, by the respondents (members of the Enenurhie – EVWRENI – Community) which reads:- “The plaintiffs’ claim against the defendants as follows: for   (a) the sum of £50,000 being fair and reasonable compensation due payable by the defendants to the plaintiffs for the damage done by the defendants, by and through their agents to plaintiffs farm land, fishing ponds, fishing lakes on plaintiffs’ land, known as and called ‘Oto-Edefema’ and ‘IWHREMO BUSH’ in that the defendants by themselves their servants and or their agents wrongfully and partially blocked the Utefe stream and the original channel or waterway hatched green in the survey plan No. AR 1391, now replaced by the Access Road sometimes in 1969/70 and also the defendants by themselves, their agents or servants caused crude oil and chemicals to escape and sip into plaintiffs’ fishing ponds and lakes from the defendants’ Location known as EVWRENI LOCATION ‘E’ thereby causing damages to the fishes and hindered fishing cropping in the said lakes and fishing ponds.

Defendants have failed refused and or neglected to pay reasonable compensation to the plaintiffs despite repeated demands. (b) Any other reliefs which the justice of the case demands.”   In this court the above claim was, in our view, rightly attacked by learned counsel for the appellants and reference will, in due course be made to that aspect of the appeal. However, it is clear from the pleadings and evidence given in the trial court that the claim arose as a result of the activities of the appellants in their search for oil around the area of land adjoining the parcels of land known as OTO-EDEFEMA, IWHREMO and IWHREVA all of which are delineated on the plan, (No AR 1391 made by a licensed surveyor, Mr. A.R. ARUBAYI on 28/8/72 and countersigned by the Surveyor-General of Midwestern State on 26/9/72) tendered in evidence by the respondents and admitted as Exh. B. The appellants, a company prospecting for oil, in the course of their search for the same were in 1969/70 based at a site, south of the IWHREMO and OTO-EDEFEMA lands (verged PINK in Exh. B. and hereinafter, in this judgment, together referred to as UNENURHIE land), which the parties hereto have throughout these proceedings referred to, as “LOCATION E’. Unenurhie land, used by the respondents for farming and which also has a large number of artificial ponds and lakes, is bordered in a South to North-Easterly direction by a stream (called the Utefe stream by the respondents) which flows from the North Eastern to the Southern boundary of this land and across the Southern boundary of the adjoining IWHREVA Land into the main EWU River which forms the Western boundary of IWHREVA land.

In order to facilitate their search for oil it was necessary for the appellants to construct a road (referred to by parties in these proceedings as “the ACCESS ROAD”) across the Western boundary of Unenurhie land (where it adjoin the IWHREVA land) to its northern boundary (a distance of over 5400 feet) and, through which as the evidence shows, fishes swim during the flood season into the artificial ponds and lakes already mentioned.  

In order to appreciate the significance of the Access Road to the respondents’ claim it is, in our view, necessary to refer at this stage to the evidence of the respondents on the effect which this road had on their farming and fishing activities in Unenurhie land. Their evidence which remained unchallenged at the end of the trial, was that during the flood season fishes, following the current in the Utefe stream, come into the EWU River and swimming across the IWHREVA and Unenurhie lands between their Southern and Northern boundaries (a distance of over 5400 feet which during the flood season may conveniently be likened to a “waterway” and over which the appellants’ Access Road was subsequently constructed) they travel into the area of the artificial ponds and lakes where they eventually become trapped at the end of the flood season.

The Access road was constructed over only five culverts (each of about 24 inches in diameter) which, although they were intended to provide for the free flow of water into the Unenurhie land, were completely inadequate since, on the whole they provided a kind of “waterway” of no more than 10 feet (ten feet) wide. The Access Road in effect blocked the flow of water into the ponds and lakes even if only partially, and this is the basis of the respondents’ claim of damages. It is also clear from both the evidence of the respondents and their pleadings that they complained about an oil-waste pit (a kind of reservoir for oil waste) dug by the appellants in their site at Location E. from which crude oil – waste escaped, in 1969/70 when the pit was full, and spread all over the respondents’ farms and into their ponds and lakes on Unenurhie land, killing a large quantity of fishes therein.   As already indicated, the claim of the respondents as set out in their writ of summons is, indeed, unsatisfactory for it is only when one takes a proper look at the pleadings that the cause or causes of action become apparent. We therefore consider it desirable to set out in full some of the material paragraphs of the respondents statement of claim.

Paragraphs 14, 15 and 17 read:- “(14) Defendants were at the time material to this case the occupiers of Shell ‘E’ Location, a location adjacent to the plaintiffs’ land and (plaintiffs will at the trial rely on the principle established by Ryland v. Fletcher (15) Plaintiffs will contend at the hearing of this case that (a) the escape of the chemicals crude or waste oil from the waste pit was caused by the negligence of the defendants their servants and agents (b) that the loss of income occasioned by the partial blockade of the original (sic) waterway which facilitate seasonal fishing cropping and (sic) due to the negligence of the defendants their agents and servants.

PARTICULARS OF NEGLIGENCE (i) Failing to take any effective measure timeously to prevent the crude oil from escaping from the waste pit unto the land and property of the plaintiffs. (ii) Failing to exercise or maintain any proper or adequate control of the said waste oil crude oil. (iii) Failing to provide any or any adequate device to prevent the escape of the crude or waste oil from the waste oil pit. (iv) Failing to construct therein more culverts of a bigger diameter on the said waterway on the Access Road as was expected of experts with skill knowledge and or in a workman like manner.   (v) Constructing the said Access Road with such a negligible outlet through which water and “fish would flow a total waterway of 9 feet 2 inches as against the original 5436 feet ……. (17) The plaintiffs asked the defendants to pay for the damage done to their farm lands and for damage caused by the c

Other Citation: (1975) LCN/2005(SC)