Elemenya Ikoro V Safrap (Nigeria) Ltd (1977) LLJR-SC

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.

Although the grounds of appeal were argued together, learned counsel’s complaints were made under three heads as follows: –

(a) that the learned trial judge erred in law and misdirected himself on the facts when he stated in his judgment: –

“It does not appear to me that plaintiffs were owners of the land on which the pond and ridge were constructed; it appeared to be communal swamp land not specifically claimed by any one and also not the property of any particular person. This is clear even from plaintiff’s evidence. Plaintiffs cannot therefore emphasize their ownership claim to this land to entitle them to compensation at all let alone to compensation of 16,000pounds.”

(b) that the learned trial Judge erred in law in not finding for the plaintiff and in non-suiting the appellant when none of the parties asked for non-suit and neither counsel was, in any event, heard on the issue of non-suit.

(c) That the learned trial Judge erred in law and in fact in not giving judgment for the appellant when he held: –

“I cannot award to plaintiffs what they have claimed because they have not shown to me acceptable basis for their calculation. The valuer who claimed to have made valuation report did so on what plaintiffs told him and not what he saw and calculated as an expert. I do not have any basis on which to calculate and assess the amount of compensation payable, such as the tonnage of fish per month or year and their market value.”

As regards the first complaint, it was the contention of learned counsel that, the respondents, having admitted disturbing the appellant’s prior rights of user on the land by levelling up and erecting a base on land on which previously had stood the latter’s pond and ridge, the question of ownership of land became irrelevant to a determination of the compensation payable. Learned counsel further argued that there was evidence from the respondents that they placed the sum of N222.50 on deposit in favour of the appellant’s family and that therefore, the only issue outstanding before the lower count was the quantum of compensation. It seems to us that if ownership of land were the only issue raised by this appeal, learned counsel’s argument would have been incontestable.

The second complaint made by counsel appears to be borne out by the record in that the order for non-suit is to be found in the judgment itself. The view that a court of trial should refrain from making an order of non-suit without hearing from the parties or their counsel as to the desirability or otherwise of such an order is enshrined in several decisions of this court. See Craig v. Craig (1966) 1.WNLR p. 173, Osayi v. Izozo (1969) 1.ANLR. p. 155, George v. United Bank for Africa Ltd. (1972) 1 ANLR. Part 2 p. 347 and Aseimo & Ors. v. Amos & Ors. (1975) 2. SC. p. 57. In delivering judgment in the George case (supra) this court observed thus at page 356 of the report: –

“As we pointed in Craig v. Craig (1967) NMLR 52 at page 55, and in other cases, an order of non-suit means giving a plaintiff a second chance to prove his case and the court has to consider whether, on the one hand, that would be wronging the defendant or whether, on the other hand, an order of dismissal of the suit would be wronging the plaintiffs. In the instant case, the plaintiffs/respondents had the chance to prove their case against the defendant/appellant and had completely failed to do so. An order of non-suit should only be made where a plaintiff has not failed in toto and where in any case the defendant is not entitled to the judgment of the court. (See Amobi v. Texaco Africa Ltd., SC. 593/166 delivered on 20th March, (1972).” See also Clack v. Arthur’s Engineering Ltd. (1959) 2 QB 211 at pp. 224 and 225.

We would add that where, as in this case, the need to record an order for non-suit arose in the course of writing a judgment, the court should suspend such judgment, invite the parties or their counsel to address it further before proceeding with the judgment. To hold otherwise, would be tantamount to investing the trial Judge with power to make an order which neither of the parties desired or asked for. Such a procedure would be clearly undesirable in a civil matter, where the Judge’s role is that of an impartial umpire.

The third complaint seems to us an entirely different matter. The record establishes beyond doubt that the appellant failed woefully to produce any evidence in proof of his case. The unsatisfactory character of this evidence is apparent from the testimony of both the appellant and the valuer called by him. The question in issue was the value of fish extractable from either the pond and ridge and the appellant, a senior civil servant who may never have done any fishing in his life had this to say: –

“The fish pond and ridge were constructed fifteen years ago. The ridge was 300 feet long and the pond 50 feet by 40 feet. We use them for catching fish. The ridge was constructed in a winding direction along the swamp. The pond is an area dug deep between the swamp and the sand bank. We usually made the annual catch of fishes during the rainy season from September to November. We catch by inserting fish baskets along openings in the ridge. We catch from the pond when the water recedes – January to March by bailing the water out of the pond. ……….. We usually realized ten naira for each day’s catch.

Total annual proceeds of sale from the season’s catch was about three hundred naira from the ridge and about one thousand naira from the pond ….. Defendant admitted destroying the ridge and the pond and offered to pay 111.5pounds compensation which I rejected because it was too small ……….

Under cross-examination, he continued thus: –

“The value assessed was based on facts as seen by the valuers. The pond was not 20 feet by 16 feet as you say it is. Yes, defendants as oil company had right to enter on any land. ….. The land area had been levelled already at the time the valuer did the assessment; he did not see the pond or the fish ridges. My claim of 300pounds a year was based on the valuers assessment on the facts given to him and so was the 500pounds a year. We catch fish once a year. The pond was 50 feet by 40 feet. We do not have records of annual proceeds from catches made in previous years but I can say them from memory.”

The material part of the testimony of the valuer (2nd P/W) ran as follows: –

“I visited the area. We saw oil rig and other structures on the land where the fish pond and ridges were said to be. We visited Obaji a neighbouring town where I enquired about other fish ponds. I then made a report. I made enquiries from plaintiff (1st P/W) who told me how much income he derived from the pond and the ridge each year and from that I made my assessment. At Obaji I got information about productivity of the ponds and ridges in that area. There were no records about these ponds and ridges and the catches from them.”

The above was not much improved upon under cross-examination when he stated thus: –

“I based my assessment on the information I received from plaintiff/1st P/W. I did not see fish ridge or fish pond; they had been destroyed at the time I got there. There was a signboard “NO ENTRY” and we could not even enter on the land to measure the pond.” The testimony of the 3rd P/W (Emmanuel Ojum) was equally unhelpful.

In the result, we think the learned trial Judge was justified in saying that the totality of the evidence produced by the appellant provided no basis from which the loss occasioned to his family by the respondent’s entry upon the land could be quantified.

As the appellant had had an opportunity to produce evidence and had failed to do so, we think that an appropriate order would be one dismissing his claim and not a non-suit, which, in effect, would enable him to canvass the same facts afresh. See Dawodu v. Gomez – 12 WACA p. 151 at p.152.

We also did not think it was necessary to hear from the respondent’s counsel in answer to the arguments of the appellant’s counsel.

We accordingly dismissed the appeal and substituted for the order of non-suit made by the trial court, an order dismissing the claim. This shall be the order of the court. The respondents are allowed costs in this court assessed at N110.

Other Citation: (1977) LCN/1935(SC)