Seismograph Services (Nigeria) Ltd. v. Robinson Kwavbe Ogbeni (1976)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, Ag. J.S.C. 

 In the High Court of Justice of the Mid-Western State of Nigeria, holden at Ughelli, the plaintiff/respondent by his writ of summons taken out on the 22nd day of July 1971, claimed from the defendants/appellants “the sum of 1,000pounds (one thousand pounds) special and general damages for nuisance caused by the defendants, their servants or agent in the course of carrying out oil exploratory exercise of exploding the oil testing chemicals around the region of plaintiff’s building which said explosion wrongfully caused or permitted excessive noise and vibration which damaged plaintiff’s/respondent’s building.” Pleadings were ordered and delivered.

The case later came before Ogbobine, J., for trial. He heard the evidence of the plaintiff and his two witnesses as well as the evidence of the six defence witnesses who were called by the defendants. After hearing the address of counsel for the parties, he on the 27th day of October 1972, gave a considered judgment in which he found in favour of the the respondent and awarded him 350pounds damages with 60 guineas costs.
Against this decision, this appeal has come before this Court on the following grounds (substituted for the original grounds by order of this Court).
(1) Judgment is against the weight of evidence.
(2) The learned trial judge misdirected himself in law and on the facts in accepting the evidence that the defendants carried out seismic operations in February 1969 at Iwhrekan.

PARTICULARS OF MISDIRECTION

(i) Apart from the plaintiff himself, no other witness testified that seismic operations took place in February 1969, as the learned Judge seemed to have thought; and

(ii) The learned Judge gave undue consideration to the fact that the statement of defence did not mention the month in which the defendants in fact carried out seismic operations thereby overlooking the fact that they were entitled to lead evidence as they have done in the absence of a demand or request for particulars of the relevant part of the statement of defence by the plaintiff’s Solicitor.

(3) The learned trial judge erred in law and on the facts in rejecting the positive evidence on behalf of the defendants to the effect that the operations were carried out between 23rd April and 1st May 1969.

PARTICULARS OF ERROR

(i) The best evidence of whether the operations took place in April and May is the evidence of eye witnesses to the event. Accordingly, the testimony of the 5th and 6th witnesses ought not to have been rejected when such evidence was not challenged in cross-examination.

(ii) The said evidence was amply corroborated by documentary evidence before the court especially exhibits ‘D’, ‘E’ and ‘F’; and

(iii) The learned judge’s refusal to place reliance on exhibits ‘D’, ‘E’ and ‘F’ arose out of his misconception of the effects of the evidence of the witness Woodluff.

(4) The learned trial judge erred on the facts in refusing to accept the evidence of the 5th and 6th defence witnesses in regard to the weight of the dynamite used when none of the said witnesses was cross-examined on the point during the trial.

(5) The learned trial judge erred in law and on the facts in failing to observe that the plaintiff did not discharge the burden of establishing that the alleged vibrations caused the damage to his building.

(6) (1) The learned trial judge erred in law and on the facts in deciding to accept the evidence of the plaintiff and his witnesses that damage was in fact caused to the plaintiff’s house when there was direct evidence from the defendants’ witnesses that no damage occurred or could have occurred.