Hong Kong Synthetic Fibre V. Monsuru Ajibawo & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

The respondents as plaintiffs took out a writ dated 6th day of August 1998 at the Ogun State High Court claiming the sum of (N5,000,000.00k) Five million naira special and general damages against the appellant who being the defendant had allegedly, by the nuisance from the effluents and waste water discharged from its premises, caused economic loss to respondents’ otherwise rich land, vegetation, landscape and stream at Ketebo. Respondents also prayed the lower court for injunction to restrain the appellant by itself, Directors, Officers, Servants and Agents from the committal of further acts of nuisance on respondents’ farmland at Ketebo, Ota in Ogun State.

Pleadings were ordered, filed, exchanged and settled. From their pleadings and evidence, respondents’ case is that appellant, a fabric manufacturing company at Ota, was discharging its effluents and waste water through pipes passed directly across respondents’ farmlands to the place of discharge. It was respondents’ case that the effluents and waste water was more alarming and devastating during periods of peak production in appellant company and rainfall when they caused offensive, obnoxious and unwholesome odour. The substances also turned the Ketebo river black, muddy and unsafe for human and animal consumption at the two periods. Economic crops and aquatic lives on which the respondents depended were devastated and destroyed by the incessant discharge. Exhibits A, B, C, D, E and F are correspondences tendered at trial by the respondents and admitted in evidence.

It is respondents’ further case that appellant company was on some occasions shut down by the Ogun State Environmental Protection Agency as a result of the company’s reckless discharge of effluents and waste water. Inspite of these closures, appellant had continued to discharge the harmful substances on respondent’s farmland causing the latter great financial loss and damage thus the claim per paragraph 38 of respondents’ statement for the reliefs adumbrated earlier in this judgment.

The appellant denied respondents’ claim in its statement of defence. The company’s case is that it had at all events treated the waste water it discharged from its premises and that the water neither directly ran through respondents’ farmlands nor damaged any crop or aquatic life on the said farmland.

Counsel on both sides addressed the trial court which in a considered decision dated 28th February 2002 entered judgment for the respondents against the appellant for the sum of N2,490,000.00 special and general damages for the loss the former suffered from the latter’s act of nuisance. An order of injunction against the appellant and its officers was also decreed by the lower court.

Being dissatisfied with the judgment of the trial court, the appellant has appealed against same on an amended notice containing nine grounds of appeal. Briefs have been filed and exchanged. Parties have adopted and relied on their respective briefs at the hearing of the appeal.

In the appellants’ brief, five issues have been distilled from its nine grounds of appeal for the determination of the appeal. The Issues are:-

“1. Whether the learned trial judge ought not to have declared the respondent’s case incompetent and strike out same for misjoinder of parties and cause of action on the ground that it was wrongly instituted and prosecuted in a representative capacity. Grounds1 and 2.

2. Whether the learned trial judge rightly admitted and relied on Exhibit F, instead of conducting a visit to the locus in quo having regard to the circumstances of this case. Grounds 3 and 4.
3. Whether the respondent proved, by credible evidence that their farmland (if any) was destroyed by the defendants’ waste water. Grounds 3 and 4.
4. from the entire evidence at the trial, whether the respondent was entitled to both the special and the general damages awarded by the learned trial judge. Ground 8.
5. Whether the plaintiffs are entitled to the Order of injunction made by the learned trial judge. Ground 9.

The respondents’ similarly submitted five issues for the determination of the appeal. The issues read:-

“i. Whether the respondents’ case was wrongly instituted and prosecuted in a representative capacity having regard to the pleadings and evidence adduced before the trial court.

ii. Whether a visit to the locus in quo is necessary in view of the trial court admission of exhibit F in this case.

iii. Whether the respondents have discharged the onus of proof on the totality of evidence before the trial court.

iv. Whether the trial court was right in awarding general damages in addition to the special damages awarded in this case.