H.R.H. Abraham Nabhon Thomas & Ors V. Shell Petroleum Dev. Coy. (Nig) Ltd. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of D.E Adokeme (J) of the High Court of Justice, Nembe, Bayelsa State delivered on 31st July, 2006 in which the plaintiffs but now appellants suit was dismissed, hence the appeal.

At the lower court, the appellants per their further, further, further further amended statement of claim which was filed on 19th May, 2008 claimed as follows:-

“(a) The sum of Two hundred and Thirty five Million, Two Hundred and Thirty Thousand Naira (235,230,000.00) being special damages for the Defendant’s blockade/flooding of farm lands, economic trees/ponds etc, of the plaintiffs, destruction for (of) the Okoroba/Opume Road and in convenience caused to the Plaintiffs in it (their) enjoyment/use of the said road as well as; the public at large or Three Hundred Million Naira (N300,000.000.00) as general damages for the same.

(b) An order that the Defendants put back the Okoroba/Opume Road in a useable state or its former state before its destruction.”

By a further, amended statement of defence filed on 12th May, 2008, the respondent denied the appellants claim.

At the commencement of the suit at the lower court, the 2nd defendant namely, Geco-Prakla (Nig) Ltd, by an order of that court was made a party. But the Same 2nd defendant filed an application on notice seeking the court to strike out the suit against it for being statute-barred. The appellant then filed on 20th July, 2006, notice of withdrawal of the suit against the 2nd defendant. The withdrawal was granted by the trial court and on 31st July 2006 the suit against Geco-Prakla (Nig) Ltd was dismissed, leaving the suit between the present appellants and the respondent on company.

At the trial, the appellants called three witnesses who testified to support their pleadings. The respondent called two witnesses who testified in support of their defence. The learned trial judge considered the parties position and dismissed on 26th Sept, 2008 in toto the appellant’s claim.

Dissatisfied with the dismissal, the appellants filed on 1st December 2008 their Notice of appeal’ containing (6)

Six grounds of appeal as contained at pages 281-284 of the record. By the rules of this court parties filed and exchanged their briefs of argument. The appellants filed their briefs on 13th November 2009 and raised three issues distilled from the (6) six grounds of appeal. The issues read as follows:

“1.Whether Exhibit F2 amounts to or is sufficient to ground ratification of the appellants complains of the damages caused by the respondents independent contractor by the respondent and whether it did not reasonably foresee the nuisance complained of by the appellants (ground 1 and 2).

2. Whether the appellants by the pleadings and evidence are bound to show or prove specific losses by persons or communities distinctly before an award of the damages claimed can be granted them (grounds 3, 4 and 6).
3. Whether the lower court was right by not invoking the provisions of section 149(d) of the Evidence Act Laws of Nigeria, 224 against the respondents for failing to produce its records on their claims as Pleaded in their further amended statement of defence (ground 5)”

The respondent filed its brief of argument on 21st April, 2010 and raised (4) four issues distilled from the appellants six grounds of appeal. The respondent’s four issues are as follows:-

(i) whether there was evidence before the learned trial judge upon which to secure a finding that the respondent reasonably foresaw the nuisance complained of (grounds 2).

(ii) whether the learned trial judge was wrong in holding that Exhibit F2 does not amount to crisis not sufficient to ground ratification (ground 1).