Niger Construction Ltd V. Chief A. O. Okugbeni (1987) LLJR-SC

Niger Construction Ltd V. Chief A. O. Okugbeni (1987)

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The facts of this case do not appear to be very much in dispute. The Defendants before the trial Court – Niger Construction Ltd. – were a Construction Company. During their construction of the Eku-Effurun Road the Defendant/Company dug up a considerable quantity of laterite from the farm lands belonging to the Plaintiff as well as to other land owners.

In that exercise several rubber trees as well as other economic trees like pepper fruit trees were uprooted. The Defendant/ Company’s excavation resulted into a burrow pit which rendered the land useless for farming purposes. When negotiations for the payment of compensation failed the Plaintiff took out a Writ of Summons claiming:-

  1. N44,920.00 (Forty-four thousand, nine hundred and twenty Naira) as reasonable compensation for the Plaintiff’s rubber trees on the said parcel of land which the Defendants converted into a burrow pit.”

In his Amended Statement of Claim the Plaintiff claimed as follows:-

“(a) A declaration that the defendant in the execution of its contract for the construction of Roads including the Eku-Effurun Road is obliged by the law and the Constitution of Nigeria to pay compensation and damages to owners of crops, structures, economic trees and or land in respect of land taken and used for a burrow pit.

(b) Compensation/Damages for the destruction of 2246 mature Dunlop Rubber trees at the rate of N20.00 per tree- N44,920.00.

(c) Compensation/Damages for the destruction of 10 mature pepper-fruit trees at N40.00 per tree – N400.00.

(d) An Order enjoining the defendant to abate the nuisance on his said land to wit – by filing up and covering the aforesaid burrow pit with laterite to its original state failing which – damages for the said nuisance……N50,000.00.

After due trial on relevant evidence, the learned trial judge, Prince Akenzua entered judgment for the plaintiff as follows:-

“(1) The defendant shall pay to the plaintiff a total sum of N44, 920.00 being the amount of compensation for his 2,246 matured Dunlop Rubber Trees at the rate of N20,00 per tree.

(2) The defendant shall pay to the plaintiff a total sum of N400.00 being the amount of compensation for his ten matured pepper fruit trees destroyed by the defendant at the rate of N40.00 per tree.

(3) The defendant shall pay to the plaintiff the sum of N20,000.00 as damages done by them to the plaintiff’s farm land.

(4) The defendant is therefore adjudged to pay to the plaintiff a total sum of N65,320.00 compensation and N2,000.00 cost of this action.”

That was the judgment of the Court of first instance in favour of the Plaintiff. The defendant/Company dissatisfied and aggrieved by the above judgment appealed to the Court of Appeal Benin Division Coram Nasir, P., Pepple and Babalakin, JJ.C.A. In a unanimous judgment the Court of Appeal affirmed and confirmed the following awards made by the trial Court:-

“(a) N44,920.00 being the amount of compensation for 2,246 matured Dunlop Rubber trees.

(b) N400.00 being the amount of compensation for ten matured pepper- fruit trees.”

The Court of Appeal however disagreed with the trial Court as follows:”

The award for N20,000.00 as damages done to plaintiff’s farm land as nuisance fails. The Appellants are therefore to pay a total of N45.320.00 to the Respondent.

There is an appeal against the costs awarded against the Appellants in the lower Court. Bearing in mind the size of this case, the number of appearances and the simplicity of the issues involved, I am satisfied that the costs were excessive. I reduce the costs in the lower Court to N1,200.00. I assess the costs in this appeal in favour of the Appellants to be N2,000.00.”

It is thus apparent that the appeal of the Defendant/Company against the judgment of the trial Court was only partially successful. As a result both Defendant/Company and the Plaintiff appealed to this Court against the judgment and Orders of the Court of Appeal.

On the 5th day of October, 1987 both appeals came before the Supreme Court. Mr. Rerri for the Defendant/Company then submitted that the cross – appeal by the Plaintiff, Chief Okugbeni, was incompetent as the leave to cross-appeal was granted 5 months after the date of the judgment appealed against instead of the statutory period of 3 months allowed by Section 31(2)(a)of the Supreme Court Act No. 12 of 1960. Mr. Okpoko, S.A.N. for the Plaintiff gracefully conceded and withdrew his cross-appeal which was then struck out accordingly. The Court was then left with the main appeal by the Defendant/Company. Both parties relied on their respective Briefs of Argument. As there was practically nothing substantial in the main appeal, I dismissed same summarily and then Reserved my Reasons for judgment for 11/12/87.

Hereunder are those Reasons. The First Issue For Determination formulated by the Defendant/Appellant/Company in its Brief of Argument is:-

  1. Whether the learned Justices of the Court of Appeal Benin City were right in failing to appreciate the effect of the serious error of the learned trial judge who prejudged the case put forward by the Appellant at the address stage and thereby failed to weigh the case of the Plaintiff/Respondent, before making specific findings of fact prejudicial to the Appellant’s case.

The Particulars of Error in Ground I of the Grounds of Appeal reveal what really was the objection of learned counsel for the Appellant namely that:-

“The learned trial judge……….. prejudged the case when he erroneously felt that it was no longer necessary to call on the respondent’s counsel to address the Court after hearing address of Appellant’s counsel and thereby failed to consider or consider properly the case of the Appellant.”

The complaint here seems to be that at the close of the evidence on both sides, learned counsel for the Defendant now Appellant was allowed to address the Court, that is to say to sum up and comment generally on the entire case. His address appears on pages 92 to 95 of the record of proceedings. At page 95 line 8 appears the following Note:-

“Court: Does not call on the plaintiff to address”

I fail to see why a Defendant who was given the extra latitude to address the court should complain that his opponent was not offered the same opportunity.

Addresses are designed to assist the Court. When, as in this case, the facts are straight forward and in the main not in dispute, the trial judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. The Plaintiff pleaded and gave evidence that he had 2,246 matured Dunlop Rubber Trees on his land; that these were all uprooted and destroyed by the Defendant/Company; that each rubber tree costs N20.00. There was no rebuttal evidence from the Defendant. It then became a question of simple arithmetic to multiply 2,246 by 20 to arrive at N44,920.00 as the amount of compensation due to the plaintiff for the loss of his rubber trees. The learned trial judge was very right in not calling upon the Plaintiff to address him on such a simple issue of fact. In the absence of evidence showing two conflicting versions of an essential fact, the trial Court cannot be blamed if it accepted (even without a closing address) the only version proved by the evidence. Not calling on the Plaintiff to address the Court does not ipso facto mean that the learned trial judge had prejudged the issues in controversy in the case. Ground 1 of the Grounds of Appeal therefore fails.

The 2nd Ground of Appeal reads:-

“2. The learned Justices of the Court of Appeal erred in law and on the facts when they failed to consider the effect of the evidence of D.W. 3 and D.W.4 which were unchallenged as regards the respondent’s claim to the whole burrow pit………. and also to all the crops in the area in dispute and thereby came to a wrong conclusion, namely, that no issue of title is involved and that the respondent is in exclusive possession of the whole area in dispute when in fact he is not………. ”

The above ground of appeal shows how completely the Appellant misunderstood and therefore misconstrued the case of the plaintiff. Issues can only arise between parties to a suit. The Plaintiff in this case never claimed a declaration of title to the land in dispute. He merely claimed compensation for his trees destroyed. Also no issue of title can arise between a plaintiff and a witness. Issues usually arise between the Plaintiff and the Defendant. The Plaintiffs case was simple. He gave the number of his rubber trees and pepper-fruit trees that were destroyed by the Defendant. He also gave the value of each tree destroyed. Whether D.W.3 and D.W.4 also owned trees in the area of the burrow pit and whether their trees were also destroyed were no concern of the Plaintiff. The Defendant/Company is certainly not holding brief for D.W.3 and D.W.4. Also the Defendant/Company cannot escape liability to the Plaintiff by proving that the rubber trees of D.W. 3 and D.W. 4 were also destroyed by them (the Defendant/Company). The Plaintiff never made the total number of trees belonging to all adjoining land-owners part of his case. Why then should his case depend on whether or not D.W.3 and D.W.4 also owned some trees within the area of the burrow pit I do not see any reason why.

It is trite law that the Plaintiff should rely on the strength of his own case. It is also true that a Plaintiff is entitled to rely on any evidence from the defence which goes to prove or support his case. There are many decisions of this Court in support of the two propositions. In this case two issues arise for determination, namely:-

(i) The liability of the Defendant to pay compensation for trees destroyed during its road construction operation;

(ii) The quantum of such compensation.

In addition to the evidence of the Plaintiff and his witnesses, the evidence of the D.W.6 clearly establishes the liability of the Defendant/Company to pay compensation. As to the quantum, the trial Court had the Plaintiff’s unchallenged and uncontroverted evidence as to the number of trees destroyed as well as the value of each such tree. Learned counsel for the Appellant referred to the imaginary scale mentioned by this court in the case of Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C.91 at p.96. In this case every weight was on the Plaintiffs scale. None at all was on the Defendants scale. The balance therefore was wholly in favour of the Plaintiff. The learned trial judge found that the evidence preponderated in favour of the Plaintiff was right. This Ground therefore fails.

The 3rd Question for Determination as formulated by the Appellant’s counsel is as follows:-

“Whether the learned justices of the Court of Appeal were right either in their own view or for the reasons given by the learned trial judge for refusing the application to visit the locus in quo.”

At p.94 of the record, the learned trial judge declined an invitation to visit the locus in quo. The judge was invited to see for itself whether there is one burrow pit in the place to know the “boundary between the Plaintiff and D.W.3.” No Court visits the locus just for the fun of it. Such a visit may be undertaken if it would help the Court resolve some doubts or conflicts about certain aspects of the oral testimonies in Court. In this case, the issue of liability of the Defendant to pay compensation will not be advanced one inch by such a visit. That issue had been proved to the hilt by evidence including that of D.W.6. If the aim of the visit was to see the rubber and pepper fruit trees – well these had been destroyed and there was no issue as to the precise number of trees destroyed as the number given by the Plaintiff was not challenged. The Plaintiff filed a Plan, Ex. A, which was not challenged by the statement of Defence. The features on Ex. A, will then be regarded as established. There was no need to go on inspection of land whose features had been established. What will the Court gain by seeing the burrow pit Nothing at all. “The boundary between the plaintiff and D.W.3” was not an issue in this case. Why then should the trial Court waste its time to go and see that boundary which will not help it resolve any issue in this case one way or another

Ground 4 dealing with failure to visit the locus in quo fails.

In the final result all the Grounds of Appeal argued in the Appellant’s Brief have thus failed and so has the appeal itself. The above were my reasons for dismissing this appeal on the 5th day of October, 1987. The Appellant shall pay the cost of this appeal which I assess as N300.00 to the Plaintiff/Respondent. The Plaintiff shall pay to the Defendant N300.00cost of the cross-appeal which was withdrawn and dismissed.

ESO, J.S.C.: I have had the privilege of reading in advance the Reasons for judgment presented by my learned brother Oputa J.S.C. in this case. I will also adopt the reasons for the course I took on 5th October, 1987 by dismissing the appeal.


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