Hon. (Nze) Hyginus J.c. Ogbiri & Anor V. Nigeria Agip Oil Company Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

The Appellants were the Claimants at the High Court of Rivers State in the suit no. OHC/5/98. The Respond was the defendant in the said suit. In the judgment of the trial court delivered on 5th June, 2007 by Hon. E. Teetito J., the suit of the claimants was dismissed in its entirety. On 11th June, 2007 the Appellants lodged their appeal against the said judgment on four (4) grounds or appeal.

1. The learned trial Judge erred in law when he wrongly held that the plaintiffs did not plead and Prove particulars of negligence in their statement of claim and thereupon proceeded to dismiss the claims against the defendant for destruction of their crops at Kowu-Owuru farmland.
2. The learned trial Judge erred in law in refusing to award special damages to the plaintiffs having already held that the evidence of PW.2 and PW.3 who were expert witnesses were not contradicted or shaken under cross-examination by the defendant.
3. The learned trial Judge erred in law in refusing to award general damages to the plaintiffs having held that the plaintiff’s crops were flooded and damaged.
4. The judgment is against the weight of evidence.

The parties are ad idem those two issues arise for determination in this appeal from the foregoing four (4) issues. That is:

1. Whether the lower court was right in dismissing the Plaintiffs/Appellants suit on the ground of failure of the Appellants to prove negligence an the part of the Defendant/Respondent? (Grounds 1, 2 and 4)
2. Whether the lower court was right in refusing to award damages to the Plaintiffs/Appellants having earlier assessed damages in plaintiffs’ favour to the tune of N19,369,700.00? [Ground 3].

I will come to the issues shortly after the summary of the facts of the case. The Appellants, a husband and wife, are farmers. In 1996, their farm, known as Okwu-Owuru was allegedly flooded and the crops thereon destroyed. They claimed against the Respondent, a petroleum oil prospecting company, the sum of N14,369,700.00 as special damages and the sum of N20,000,000.00 as general damages for the damage to the farm at Okwu-Owuru farmland situated at Aggah Town, Egbema and for an order directing the Respondent to rectify the defect in the access road that they say caused the flooding. The damages are for negligence allegedly committed by the Respondent.

The parties exchanged pleadings at the lower court. Paragraphs 7, 8 and 17 (a) of the Statement of Claim summaries the grievance of the Appellants thus:

7. In 1996, the Defendant Company after constructing several access roads leading to their several locations in Aggah land, constructed culverts which channeled water from various streams and ponds in the area, and the Defendants burrow pits, into the OKWU-OWURU farmland of the Plaintiffs causing completed destruction of the crops.
8. About 4 (four) culverts installed by the Defendant’s Company created artificial channels through which water (from the streams, ponds and burrow pits) empty into the farmland. It was after the construction of the said 4 (Four) culverts that the farmland began to experience annual flooding.
9. It shall be contended for the Plaintiffs and evidences shall be led in that regard to show that:

a. The Defendant’s construction of their access roads (also called AGGAH/ETEKWURU ROADS) leading to MGBEDE “w” 24 LOCATION tampered with the Natural waterways which resulted in the flooding.

These assertions of the Appellants were fiercely contested and denied by the Respondent. In the amended statement of Defence, the Respondent avers particularly in paragraphs 3, 4, 8 and 9 thereof that –

3. The Defendant denies paragraphs 7 and 8 of the statement of claim and puts the plaintiffs to the strictest proof of the same.
4. In further reply to the said paragraphs, the Defendant states-

a) that the initial survey carried out by the Defendant prior to the construction on the Mgbede 25 Access Road, declared the area (including the area claimed by the Plaintiffs) to be a swampy zone.

b) That in order to allow for free flow of water, the Defendant had to construct sixteen (if) double/single culverts across the Access Road.

The Defendant hereby pleads and shall rely on its report and survey at the trial if this: suit and all relevant documents not specifically pleaded:

8. The Defendant denies paragraphs 15 and 16 of the statement of claim and puts the plaintiffs to the strictest proof of the same.
9. That in further reply to the said paragraphs the Defendant states as follows:

a) That the Defendant’s construction of the Mgbede 25 Access Road and culverts across the access road did not in anyway howsoever adversely affect the natural waterways in the area.

b) That the construction of the 16 double/single culverts across the Access Road was done in accordance and in full compliance with standard practice.

c) That the Defendant’s activities in the area did not result into any blockade, destruction or obstruction howsoever.

d) That the Defendant’s activities in the area did not in any way howsoever or whatsoever give rise to annual flooding in the area.