Elemenya Ikoro V Safrap (Nigeria) Ltd (1977)

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A. G. IRIKEFE, J.S.C. 

At the conclusion on 10/1/77 of argument by learned counsel appearing on behalf of the appellant in this matter, and without calling upon the respondents’ counsel, we set aside the order of non-suit made by the lower court and substituted therefore an order dismissing the claim. We now give our reasons for so doing.

The writ which commenced this action reads as follows: –

“The plaintiff claims from the defendant the total sum of 16,000 pounds being the value of the plaintiff’s fish pond and ridges at AKABUKA in the AHOADA DIVISION which the defendant damaged in the course of its operation for mineral oil in the said area in or about the month of March, 1972.”

From the evidence produced by the parties at the trial, it is common ground that: –

(a) the respondents (a company granted an Oil Mining Licence by the Federal Government of Nigeria) are entitled by virtue of the said licence to enter upon any land covered by the terms of such licence in order among other things, to prospect for oil.

(b) the respondents acting pursuant to the licence aforesaid, early in March, 1972 took possession of an area of swamp land on which the appellant’s family had a fish pond and a fish ridge at AKABUKA in the AHOADA DIVISION of the Rivers State

(c) the respondents were under obligation before entry upon any land to pay compensation to owners or occupiers thereof for disturbance to rights of user.

(d) The respondents, before action brought, had offered to pay the appellant’s family the sum of 111.5pounds(N224.50) as compensation for the pond and ridge in the proportion of 70pounds for the pond and 41pounds for the ridge.

(e) The appellants’ family rejected the offer at (d) whereupon the respondents paid the amount into the government treasury on deposit.

(f) At the time this writ was filed on 11/11/72 there was no longer any trace of the pond and ridge on the land as the respondents had already constructed a base on the area where both features had previously stood.

Although the evidence is conflicting as to the size of either the pond or the ridge, it seems to us that this had but little impact on the case.

After a careful appraisal of the evidence produced on either side, the learned trial Judge took the view in his judgment that the appellant’s family had not made out a case and, without calling upon counsel representing the parties for their views on the propriety of a non-suit, non-suited the claim.

This appeal is against the said order and learned counsel representing the appellant after obtaining leave to rely on two additional grounds of appeal, decided to argue these and the original grounds together.