Mr. Newman Ighedo & Ors V. Power Holding Company Nigeria Plc (2018)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal by the plaintiffs at the Federal High Court being dissatisfied with the judgment of the Court of Appeal, Lagos division delivered on the 15th day of December, 2004 which set aside the judgment of Egbo-Egbo, J. earlier given on the 21st day of November 2000, and ordered the striking out of their claim in suit No.F.HC/B/157/96 on the ground that it was incompetent.

The appellants as plaintiffs had instituted an action for themselves and on behalf of Ekrusierho community in Ekakpoimre. By their writ of summons issued on 15/11/1996, they had claimed the sum of one hundred and fifty million Naira (N150,000,000.00) being compensation and for loss suffered as a result of pollution of their (Plaintiffs) stream. They had claimed in the alternative, the sum of one hundred and fifty million Naira (N150,000,000.00) being damages for nuisance, negligence and or breach of statutory duty.

The appellants case is that sometime in 1991- in the course of the respondent’s operation at Delta Power Station at Ughelli, they found that the respondent’s waste oil chemical from

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the power station were channeled through the respondent’s drainage system and discharged unto appellants’ land and Ekruiserho stream thereby polluting the said stream and land. Consequently, the Ekrusierho stream, a major source of water supply and major source of income for the community became unfit for human consumption and fishing activities. The inhabitants of the community thereby lost their source of domestic water supply and the fishing community was dislodged. The vegetation in the immediate environment of the stream was also affected. The appellants lodged series of complaints in respect of the pollution first to the Assistant General Manager in charge of the said Delta Power Station, who ordered for a scientific test of the water samples from the Ekrusierho stream. Subsequently, the appellants commissioned Messrs JAS GERE AND KNIGHT FRANK in July 1993 and January, 1995 respectively to carry out valuation of the losses and damages occasioned by the said pollution which they forwarded to the respondent. In reaction to the appellants’ complaints, the respondent, in 1994 dispatched a team of officers on a joint inspection with the appellants’

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representatives. A scientific test of the Ekrusierho stream in the respondent’s laboratory, located at- Sapele was conducted. Thereafter, the appellants pressed for compensation but the respondent declined to pay any compensation. This refusal led the appellants to institute the action claiming the sum of one hundred and fifty million Naira (N150,000,000.00) as compensation and loss suffered as a result of the continuous pollution of the said Ekrusierho stream which led to the consequential hardship, loss of source of income and destruction of the surrounding vegetation or in the alternative the same amount was claimed as damages for nuisance, negligence and or breach of statutory duty.

Pleadings were filed and exchanged by parties. The case proceeded to hearing. Both parties called witnesses and a number of exhibits were tendered and admitted in evidence. Judgment was later entered in favour of the appellants by the trial Federal High Court in the sum of fifty million Naira (N50,000,000.00) which was to be distributed on the basis of what the community would think fit in the circumstances. The respondent was dissatisfied with the judgment of the trial

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Court, hence appealed to the Court below on 18/2/2000. Pursuant to the leave granted by the Court below, the respondent filed an amended Notice of Appeal on 18/10/2002. Briefs of argument were filed and exchanged by parties. In its reserved judgment delivered on 15/12/2004, the Court of Appeal held that the action was incompetent in that the action could not be commenced in a representative capacity and struck out the suit.

Being dissatisfied with the judgment of the Court of Appeal led the appellants to appeal on 4th June, 2004 on a sole ground of appeal. Parties filed and exchanged briefs of argument. In the appellants’ amended brief of argument filed on 20/2/2017 the appellants distilled the following sole issue for the determination of the appeal.

“Whether the learned Justices of the Court of Appeal were right in holding that the plaintiffs cannot prosecute this action in a representative capacity.”

This appeal was argued on 17 /10/2017. Mr. Ajuyah, SAN of counsel for the appellants identified the processes they were relying on for the appeal. These include the amended appellants’ brief of argument and Appellants’ reply brief of argument.