The Shell Petroleum Development Company Of Nigeria Limited V. Chief G.b.a. Tiebo & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The respondents as the plaintiffs commenced their suit on 6th June, 1988 at the Yenagoa High Court of Rivers State claiming against the defendant for the sum of Sixty four million, one hundred and forty six thousand naira being special and general damages for the negligence of the defendant and for allowing crude oil, which the defendant was mining, to spill into the lands, swamps, creeks, ponds, lakes and shrines of the plaintiffs. The plaintiffs sued for themselves and as the representatives of the Peremabiri Community in YELGA. The parties filed and exchanged pleadings after which the suit was heard by Blankson J. In all, the plaintiffs called nine witnesses in support of their case. The defendant called three. At the conclusion of hearing, the learned trial Judge in his judgment on 27/2/91 awarded in plaintiffs’ favour, general damages totaling six million naira and one million naira costs. Dissatisfied with the judgment of the trial court, the defendant brought an appeal before the Court of Appeal, Port-Harcourt Division (hereinafter referred to as ‘the court below’). On 27th March, 1996, the court below in its judgment dismissed the appeal. The defendant has come before this court on a further appeal. In the appellant’s brief, filed for the defendant, the issues for determination in the appeal were identified as the following:

“(1) Was the judgment of the court below ultra vires

(2) Was the court below right in confirming the award of N400,000.00 as special damages in respect of raffia palms allegedly destroyed by crude oil after the trial court found that there was no credible evidence to support the claim for special damages for the raffia palms and there was no appeal from this finding

(3) Was the court below right in upholding the award of N600,000.00 as general damages for money spent in buying water for drinking and other domestic uses when there was no credible evidence supporting purchase of water anywhere

(4) Was the court below right in confirming the award of general damages of N5,000.00 for hazards, general inconveniences and miscellaneous losses and expenses after holding that fear was not a recognised head of damages in negligence.

(5) Did the award of costs of N1,000,000.00 confirmed by the court below follow the principles laid down by law for indemnifying a successful party in litigation”

The respondents formulated five issues but these issues are amply covered by the appellant’s four issues. None of the issues formulated by the appellant contests the correctness of the liability in negligence as ascribed to the appellant by the trial court in its judgment.

This makes it necessary for me to discuss only the facts, as are relevant, on the awards of damages and costs which are being challenged in this appeal. It suffices to say by way of a background that the case made by the plaintiffs before the trial court was that the defendant, an oil exploration company, on 16th January, 1987, negligently caused a major crude oil spillage of over six hundred barrels from its flow station and on its pipeline or other installations at or near the plaintiffs’ village called Peremabiri. The plaintiffs in paragraphs 9 to 14 of their statement of claim pleaded the nature of the damage done to them by the spillage thus:

“9. Consequent upon the aforesaid oil the Nun river, the plaintiffs farms, farmlands, swamps creeks, fish ponds, fishing nets, raffia palms and juju shrines etc. were extensively polluted and damaged, and fishing and farming their main occupation halted.

10. The plaintiffs who use the aforesaid river and creeks for drinking, irrigation and other domestic purposes also had to spend colossal amount of money in buying water.
11. The plaintiffs also lost much revenue as they could no longer hire out the damaged communal fishing nets to fishermen from the community and neighbouring towns and villages.
12. The plaintiffs spent huge sums of money in appeasing and resettling their PINAORU, KURUGBO and KOROMODE juju shrines which were defiled and desecrated by the aforesaid oil spillage.
13. The aforesaid oil spillage also occasioned enormous medical expenses to the plaintiffs as the defendant company failed to fly in medical and relief materials.
14. The plaintiff community number about 50,000 out of which the active fishing population number 20,000.” And in paragraph 17 of their statement of claim, the plaintiffs set out the particulars of special damages claimed thus:

“Particulars of Damage

Special Damage

(i) Pollution of 40 fish ponds 2,000.000

(ii) Damage to communal fishing nets 4,000.000

(iii) Damage to young raffia palms 1,000.000

(iv) Appeasement and resettlement of 3 juju shrines

1,146,000,

8,146,000

General Damage

(i) Loss of fishing rights 30,000.000

(ii) Loss of drinking water 1,000.000

(iii) Medical Expenses incurred 1,000.000

(iv Damage and hazards from the

pollution of the environment 22,000.000

(v) General inconvenience and miscellaneous Losses, damages and expenses

2,000.000

N56,000.000”

Finally in paragraph 31 of the aforesaid Statement of claim, the plaintiffs expressed their claims thus:

“Wherefore the plaintiffs have brought this action against the defendants claiming special and general damages in negligence as well as under the rule in Rylands v. Fletcher as follows:

(i) Special damages as here above pleaded: 8,146,000.00

(ii) General damages as here above pleaded:56,000,000,00

Grand total N64,146,000.00

Appellant’s first issue is a muted challenge to the jurisdiction of trial court to hear and determine the case. At page 8 of the appellant’s brief, counsel stated: “The question whether a State High Court has jurisdiction to entertain cases for damages in respect of pollution caused by the escape of crude oil during mining operations is before this court in appeal No. SC.75/97 (Abel Isaiah & Ors. v. The Shell Petroleum Development Company of Nigeria Limited) where this question was argued extensively in the court below so that this court has the benefit of contributions made by the court below.

The judgment of this court in the said appeal will determine whether the appellant will pursue its contention herein that the High Court of Rivers State lacked jurisdiction to entertain this suit and as a corollary whether the judgment of the court below is not null and void for hearing an appeal from a null judgment.”

It is apparent that the above statement in appellant’s brief does not constitute an argument in this appeal. Ordinarily, the approach of this court would be to regard an issue in support of which no argument is canvassed as abandoned. This court will not however shut its eyes to and treat lightly a complaint before it that the judgment which forms the basis of the appeal was given by a court without jurisdiction.This explains why I have taken it upon myself to examine and consider the judgment of this court in Shell Petroleum Development Company Nigeria Ltd. G v. Isaiah & 2 Ors. reported as (2001) 11 NWLR (Pt. 723) 168 (stated in appellant’s brief). The central issue in the case was whether or not a State High Court has jurisdiction in civil causes or matters connected with or pertaining to mines and minerals including oil fields, oil mining, geological surveys and natural gas. The same question arises in relation to appellant’s first issue. I approach the resolution of the issue along the same line as was as done in the case. The concurring judgment of Ogwuegbu, JSC fully adumbrated the sequence of successive legislations on the jurisdiction of the High Court in matters relating to mines, mining, oilfields etc. I gratefully adopt the opinion of Ogwuegbu, JSC at pages 182-184 of the report. He said: “In order to determine whether the Rivers State High Court had jurisdiction to entertain the claim which the courts below answered in the affirmative, it will be necessary to consider the provisions of various enactments including the Constitution of the Federal Republic of Nigeria 1999 dealing with jurisdiction of the Federal Court. They are the Federal High Court Act, Cap. 134 Laws of the Federation of Nigeria, 1990, which is the Principal Act. Decree No. 60 of 1991, Decree No. 16 of 1992, Statutory Instrument No. 9 0f 1993, Decree No. 107 of 1993 and the Constitution of the Federal Republic of Nigeria, 1999. Section 7(1) of Federal High Court Act set out its jurisdiction in civil causes and matters relating to the revenue of the Government of the Federation in which the said Government or any of its organs is suing or being sued on behalf of the Federal Government. The provisions of section 7(1) of the Act do not include such matters as mines and minerals, oil fields, oil mining or natural gas.

The Federal High Court (Amendment) Decree 1991 otherwise called Decree No. 60 of 1991 was enacted by the Federal Military Government. It substituted a new section 7 for section 7 of the principal Act. The new section 7 reads: 7(1) The court shall to the exclusion of any other court have original jurisdiction to try civil causes and matters connected with or pertaining to – (p) mines and minerals, including oilfields, oil mining, geological surveys and natural gas. (3) Where jurisdiction is conferred upon the court under subsections (1) and (2) of this section, such jurisdiction shall be construed to include jurisdiction to hear and determine all issues relating to, arising from or ancillary to such subject matter. (5) Notwithstanding anything to the contrary contained in any other enactment or rule of law including the Constitution of the Federal Republic of Nigeria, any power conferred on a State High Court or any other court of similar jurisdiction to hear and determine any civil matter or proceedings shall not extend to any matter in respect of which jurisdiction is conferred on the court under the provisions of this section. (6) Any decision made after the commencement of this section by any court of law in any purported exercise of any power under the Constitution of the Federal Republic of Nigeria or of any Federal or State law shall, as from the date of making of the decision be null and void.”

Decree No. 60 of 1991 which commenced on 30th December, 1991 was amended by the Federal High Court (Amendment) Decree, 1992 otherwise called Decree No. 16 of 1992. Section 1(1)(b) provides as follows:

“1. (1)(b) By substituting for the existing section 4 the following new section that is- ‘4. This Decree may be cited as the Federal High Court (Amendment) Decree 1992 and shall come into force on such a date as the President, Commander-in-Chief of the Armed Forces, after consultation with the Armed Forces Ruling Council, may by Order published in the Gazette specify.’

2. Accordingly, any judgment or order of any court or tribunal delivered on or before the commencement of this Decree and made pursuant to the Federal High Court (Amendment) Decree, 1991 shall by virtue of this Decree be made null and void and of no effect whatsoever.”

The Constitution (Suspension And Modification) Decree, 1993 (Decree No. 107 of 1993) in its First Schedule substituted a new subsection 1 of section 230 to section 230(1) of the 1979 Constitution thus:

230(1) Notwithstanding anything to the contrary contained in the Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly or a Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from-

(0) mines and Minerals (including oil fields, Mining, geological surveys and natural gas).

This Decree came into force on 17th November, 1993 after the commencement date of Decree No. 16 of 1992.

The Federal High Court (Amendment) Decree, 1992 (Decree No. 16 of 1992) suspended the operation (of Decree No.60 of 1991 and nullified all judgments and orders of any court or tribunal delivered before the commencement of Decree No. 16 1992 pursuant to Decree No. 60 of 1991. Decree No. 16 1992 came into force on 1st January, 1992. It suspended the operation of the jurisdiction conferred on Federal High Court by Decree No. 60 of 1991 until such a date as the President, Commander-in-Chief after consultation with the Armed Forces Ruling Council may by Order published in the Gazette specify.

The President exercised the power conferred on him by section 1 (a) of Decree 16 of 1992 and specified the commencement date of Decree No. 60 of 1991 as 26th August, 1993. This was brought about by Statutory Instrument No.9 of 1993. In that case the Federal High Court (Amendment) Decree, 1991 came into operation on 26th August, 1993. It will be recalled that the 1991 amendment Act gave the Federal High Court exclusive jurisdiction in causes and matters connected with and pertaining to- ‘mines and minerals, including oil fields, oil mining, geological surveys and natural gas.’ We should also not lose sight of subsections (3), (5)and (6) of the 1991 amendment Decree which have been set out above. By way of recapitulation, subsection (3) states that the jurisdiction conferred upon the court under sections 7(1) and (2) shall be construed to include jurisdiction to hear and determine all issues – relating to, arising from or ancillary to such subject matter.’ Subsection (5) of section 7 robbed the State High Courts of any jurisdiction conferred on it by any other enactment or even the Constitution on any matter similar to the jurisdiction conferred on the Federal High Court in section 7(1) and (2) of Decree No. 60 of 1991. Any purported exercise of jurisdiction by any other court under any law or the Constitution of the Federal Republic of Nigeria after 26th August, 1993 is rendered null and void [section 7(6).

Section 251(1) (n) of the Constitution of the Federal Republic of Nigeria, 1999, provides:

‘251 (1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters – (n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas.)’ It came into force on 29th May, 1999.

The judgment of the High Court in this case was delivered on 11th March, 1994 after the coming into force of the Decree No. 60 of 1991 and was caught by section 7(6) of Decree No. 60 of 1991. In my view, the enactments which apply to this case are the Federal High Court (Amendment) Decree No. 60 of 1991 and Decree No. 107 of 1993. They came into operation on 26th August, 1993 and 17th November, 1993 respectively. The other enactments set out above are for a better appreciation of the legislative history of the jurisdiction of the Federal High Court.”

It is manifest that the State High Court lost its jurisdiction to adjudicate in oil and mining matters first on 30th December 1991, under Decree No. 60 of 1991. However, under Decree No. 16 of 1992, the operation of the new section 7 under Decree No. 60 of 1991 was suspended. But on 17/11/93, under Decree No.107 of 1993, the jurisdiction to adjudicate on mines and minerals and allied matters was given exclusively to the Federal High Court. This remained the position before the 1999 Constitution came into force. Under section 251(1) of the 1999 Constitution, the Federal High Court now possesses and exercises exclusive jurisdiction in “mines and minerals (including oil fields, oil mining, geological surveys and natural gas.

In the instant case, the cause of action accrued to the plaintiffs on 16th January, 1987 and they commenced their suit on 6th June, 1988. Judgment was delivered on 27th February 1991. On these various dates a State High Court had jurisdiction to entertain matters and causes on mines and minerals and oil fields. It is settled that the law applicable to an action is the law existing when the cause of action arose. See Uwaifo v. Attorney-General, Bendel State (1983) NCLR 1 and Adesina v. Kola (1993) 6 NWLR (Pt. 298) 182 at 185.

The result is that the Rivers State High Court had jurisdiction to entertain plaintiffs’ suit and that jurisdiction was not in anyway impaired between the commencement of the action on 6th June 1988 and the delivery of judgment on 27th February, 1991. I now consider together the remaining issues two to five. The plaintiffs had in their statement of claim made claims for One million naira each, as special damages for young raffia palms which were damaged and for loss of drinking water. On both heads of claim, the trial Judge concluded that the evidence called by the plaintiffs did not establish their entitlement to the award of One million naira each as claimed. The trial Judge nevertheless awarded N400,000.00 and N600,000.00 being general damages respectively for damage to raffia palms and for loss of drinking water. In making the awards, the trial Judge said he was relying on Oshinjinrin v. Elias (1970) 1 All NLR 153 at 170 and Odulaja v. Haddad (1973) 1 All N.L.R. 191(1973) 11 SC 357. The trial Judge also awarded to plaintiffs N5m as general damages.

These awards were all affirmed by the court below. The appellant’s counsel has argued in his brief that since the trial Judge expressed that the evidence called in proof of the claims for damage to raffia palms and loss of drinking water was insufficient, he could not properly award as general damages lesser amounts than claimed as special damages. It was also argued that the sum of N5m awarded as general damages was excessive and not in consonance with established guidelines on the award of general damages.

The court below in affirming the awards of N400,000.00 and N600,000.00 respectively as general damages for damage to raffia palms and loss of drinking water relied on Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124 and Agaba v. Otubusin (1961) 1 All NLR 153 at 156.

It is now well established that special damages claimed by a plaintiff must be strictly proved See Dumez v. Ogboh (1972) 3 SC 196 and Agunwa v. Onukwe (1962) 1 All NLR 537. In Oshinjinrin v. Elias (1970) 1 All NLR 153 at 156, this Court per Coker, JSC discussed the nature of proof required in cases where special damages is claimed thus:

“Undoubtedly, the rule that special damages must be strictly proved applies to cases of tort. In effect the rule requires anyone asking for special damages to prove strictly that he did suffer such special damages as he claimed. This however does not mean that the law requires a minimum measure of evidence or that the law lays down a special category of evidence required to establish entitlement to special damages. What is required is that the person claiming should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he indeed is entitled to an award under that head, otherwise the general law of evidence as to proof by preponderance or weight usual in civil cases operates.”

In E.K. Odulaja v. Haddad (1973) 1 All NLR 191 at 196 similar views as in Oshinjinrin v. Elias (supra) were expressed by this court. It would appear, however, that these views have been relied upon in this case by the trial court as a justification to award general damages in lieu of special damages which the court held were not strictly proved. I think that the trial Judge misunderstood the import of the guidance given in the two cases.

It must be stated that the statement of the law in Oshinjinrin v. Elias (supra) and other cases where similar views were expressed was not meant to lower the standard of proof required to establish a claim for special damages. What the statement connotes is that what is required is qualitative and credible evidence in order to establish entitlement to qualitative and credible evidence in order to establish entitlement to qualitative special damages. In other words it is a general guide and arises from the fact that it is impossible to prescribe the quantity and nature of evidence required in a given case to justify entitlement to special damages. In some cases, it may be necessary to show documentary proof of loss sustained while in others it may be unnecessary. The important thing is that the evidence proffered must be qualitative and credible and such as lends itself to quantification. Each case depends on its own facts and circumstance. There are cases where it will be impossible to pass the test required unless documentary proof is produced to show the loss sustained. In others, oral evidence which is credible may be sufficient. The character of the evidence called must measure up to the circumstance of the occasion or the expectation of a reasonable man. At page 141 (of the record, the learned trial Judge in evaluating the evidence called by the plaintiffs said:

“The plaintiffs claimed damages of N1,000,000.00 for young raffia palms. PW1 testified that the pollution affected the plaintiffs’ economic trees including raffia palms, he did not put any value on them as units or collectively. PW2 put their collective value at N1,000.000.00 page 5 of exhibit ‘A’, the unit cost of one young raffia palm was put at N40.00 and a total of 25,000.00 stands were claimed for totaling N1,000.000.00 Exhibit ‘E’ did not show how PW8 arrived at the figure N25,000.00 for the raffia palms nor did he state how he put a value of N40.00 for a stand of each palm … The end result is that the plaintiffs did not establish by credible evidence the sum of N1, 000.000.00 they have claimed as special damages for the said raffia palm. Moreso exhibit ‘E’ did not state whether those palms are yielding palm wines or not. It is thus not possible to precisely calculate the economic value placed on them. That does not mean that they do not have any economic value, what it means is that the plaintiff could not put their case across properly.”

Those were the words of the learned trial Judge himself and anyone familiar with the principle of law that special damages must be strictly proved would have thought that what was to follow the above statement was a dismissal of the plaintiffs’ claim for the raffia palms; but strangely however, the trial Judge in an obvious volte face expressed that he was placing reliance on Oshinjinrin v. Elias (supra) and Odulaja v. Haddad (supra) to reach the conclusion to convert damages claimed as special, to general. He said:

“Based therefore on the foregoing I find and hold that the plaintiffs are entitled to be paid damages for loss of their young raffia palm trees as general damages even though they could not prove special damages as pleaded, the law is that once a person is entitled to a remedy provided by law, it does not matter that he has applied for it under a wrong law. See Edewor v. Uwegba (1987) 1 NWLR (Pt. 50) 313. See also Henry Stephen’s Engineering Co. Ltd. v. Complete Home Enterprises Ltd. (1987) 1 NWLR (Pt. 47) page 40.

The law as I pointed out earlier regards general damages as such damage the law will presume to have resulted in the defendant’s tortuous conduct and which the plaintiff need not plead expressly. For the reasons stated above I will award the sum of N400,000.00 as general damages.”

The learned trial Judge followed the same reasoning and approach in the award of N600,000.00 as general damages in lieu of N1,000,000.00 special damages claimed for loss of drinking water. The learned trial Judge said in relation to the award for loss of drinking water:

“With regard to the claim of N1,000,000.00 for loss of drinking water PW2 testified under cross-examination that the plaintiffs bought portable water from badges (sic) brought from Port Harcourt and elsewhere and sold water to them. PW2 emphasized that the plaintiffs did not obtain receipts for the water they bought.

I hold and find that the plaintiffs suffered general damages because their portable water was polluted. No community, especially like the plaintiff, who are a riverine community in the lower Niger Delta Area of Nigeria, can exist without water for their domestic and social needs, especially for drinking.

That being the case, they did not have to plead and prove that they suffered damages as a result of the pollution of their sources of drinkable water. Based therefore on my reasoning when considering the claim for young raffia palms and the authorities cited therein, I will award damages for their loss of their sources of water for drinking and other domestic uses.”

In the awards made by the learned trial Judge, he minced no words in stating that he was awarding general damages in lieu of a claim for special damages which was not made out as there was no credible evidence. Clearly, the trial Judge had not adverted his mind to the distinction between a claim for special and general damages and the differing standards of proof required in each case. The court below in the lead judgment, per Onalaja J.C.A., considered several judicial authorities before coming to the conclusion not to disturb the awards. The court below in arriving on its decision relied on Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt. 361) 124 where this court said: “The law is well settled that in order to justify interfering with any decision of a trial Judge on the amount of damages awarded, it is necessary for the appellate court to be convinced either:

(a) That the Judge acted upon some wrong principles of law or

(b) That the amount awarded was so extremely high or very small as to make it in the judgment of the appellate court an entirely erroneous estimate of the damage to which the plaintiff is entitled.

In the present case, the learned trial Judge neither acted upon any wrong principles of law nor is the amount awarded so high as to make it an entirely erroneous estimate of the damage to which the respondent is entitled. On the contrary what the learned trial Judge did was to award much less than the respondent established by evidence. This he was entitled under the law to do. Thus there is no reason for the Supreme Court to interfere with the decision of the trial court on the award. (Zik’s Press Ltd. v.Ikoku (1951) 13 WACA 188; Idahosa v. Oransanye (1959) SCNLR page 407; (1959) 47 SC 106; Bala v. Bankole (1986) 3 NWLR (Pt. 27) 141; Onaga v. Micho & CO. (1961) 2 SCNLR page 101; (1961) All NLR 324; Idahosa v. Oransanye (1959) SCNLR page 407; Bala v. Bankole (1986) 3 NWLR (Pt. 27) Page 141: Onaga V. Micho & Co. (1981) 2 SCNLR page 101; (1961) All NLR 324; Ijebu Ode L.G V. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) page 136.”

The court below also relied on Agaba v. Otubusin (1961) All NLR where views similar to those above in Nzeribe v. Dave Engineering Co. Ltd. (supra) had been expressed by Bairamian F.J. It is however clear that the two cases relied upon by the court below were inappropriate on the facts in this case as they did not deal with the same situation as we have in the case. This would perhaps explain the error made by the two courts below in believing that the court enjoys the same latitude of discretion in the award of special damages as it does in the award of general damages. Indeed, in Nzeribe v. Dave Eng. Co. Ltd. (supra) Iguh JSC stressed that special damages must be strictly proved. At page 140 of the report, he said: “In the first place, I entirely agree with learned appellant’s counsel that a claim in special damages must, to succeed, be proved strictly and that the court is not entitled to make its own estimate on such an issue. See Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR 241 and Jaber v. Basma 14 WACA 140. The rule that special damages, unlike general damages, must be strictly proved is well founded in law and has been repeatedly emphasized by this court. What this rule requires, in effect, is that anyone making a claim in special damages must prove strictly that he did suffer such special damages claimed. This, however, does not mean that the law requires an extra-ordinary measures of evidence or that the law lays down or requires a special category of evidence to establish entitlement to special damages. It does not mean either that an award in special damages cannot be made unless such damages are established beyond reasonable doubt as is the position in criminal cases. All that the rule requires is that the person making a claim in special damages should establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the court that he is indeed entitled to an award under that head, otherwise the general law of evidence as to proof on the balance of probabilities or by preponderance or weight of evidence which ordinarily applies in civil cases operates. See Oshinjirin and Ors. v. Alhaji Elias and Ors. (1970) 1 All NLR 153 at 156. See too Dumez (Nig.) Ltd. v. Patrick Ogboli (1972) 1 All NLR (Pt. 1) 241.”

The distinction between special and general damages for the purpose of assessment of awards must always be borne in mind. In Stroms Bruks Akfie Bolag v. Hitchinson (1905) A.C. 515, Lord Macnaghten said:

“General damages are such as the law will presume to be direct, natural or probable consequence of the action complained of. ‘Special damages’ on the other hand are such as the law will not infer from the nature of the act. They do not flow in the ordinary course. They are exceptional in their character and therefore they must be claimed specially and proved strictly.”

In the Susquehanna (1926) A.C. 655 at 661, Lord Dunedin observed on the distinction between general and special damages: “If there be any special damage which is attributable to the wrongful act, that special damage must be averred and proved and if proved will be awarded. If the damage be general, then it must be averred but the qualification is a jury question.” And finally on the point is the statement of Martin B. in Prehin v. Royal Bank of Liverpool (1870) L.R. 5 Ex. 92:

“General damages…are such as the jury may give when the Judge cannot point out any measure by which they are to be assessed except the opinion and judgment of a reasonable man. Special damages are given in respect of any consequences reasonably and probably arising from the breach complained of.”

The trial court said so much in its judgment that the plaintiffs failed to prove their entitlement to the special damages claimed. It then stated that it was awarding plaintiff’s general damages in place of special damages not proved. If the trial court had borne in mind the difference between those awards, it would not have slipped into that error. This court in West African Shipping Agency v. Kalla (1978) 3 SC 21 at 32, per Eso, JSC, admonished against such practice thus:

“… it is true that in so far as awards of general damages are concerned, a trial Judge must make his assessment of such general damages and as pointed out by this court in Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR 241 as per Lewis J.S.C. (Pt.250) ‘On appeal to this court such general damages will only be altered if they were shown to be manifestly high or manifestly too low or awarded on a wrong principle.’ It does appear to us that the award of general damages in this case was a way of compensating the plaintiff for the loss of ‘expected profits and freight on goods’ which the learned trial Judge said was proved but not claimed on the writ. This cannot be justified. It is wrong for the learned trial Judge to take into consideration the award of general damages matters which he should have considered in his award of special damages. The plaintiff in this case has been adequately compensated under the head of special damages in respect of the claim put up under that head. He should not be given compensation for any item he did not claim…

I think that the same ought to be said here. The two courts below were wrong to treat a claim which failed under special damages as a successful one under general damages. The awards of N400,000.00 for damage to raffia palms and N600,000.00 for loss of drinking water must be set aside.

With respect to the award of five million naira as general damages, a different consideration applies. This was an award made by the trial Judge sitting as a jury and judge of the facts. The only circumstance justifying an interference with the award of general damages made by a court of trial by an appellate court is when the award is manifestly too high or manifestly too little so as to raise inference that it was an erroneous assessment of the damage suffered or where the trial Judge had made the award relying on a wrong principle. In making the award, the trial judge said at page 145 of the record:

“I have found in this case and as was admitted by the defendant that crude oil spilled or gushed or escaped from their Diebu Creek flow station Well 12T and flowed from the defendant’s acquired land on to the lands, waters, creeks and ponds of the plaintiffs and consequently the plaintiffs suffered general damages for the pollution environmental, land, river, pond, lakes et cetera. The defendant’s tortuous conduct therefore entitles the law (sic) and this court to presume that the loss suffered by the plaintiffs from the pollution caused by the defendant will entitle them, the plaintiffs, to be compensated with general damages, which I hereby assess to be N5,000,000.00.

The court below while affirming the award said at pages 252-253 of the record:

“After a critical and cool calm view of the principle of law to guide an appellate court in its attitude to interfere with the award of general damages laid down in UBN v. Odusote Bookstore Ltd. With consideration of the pleading, evidence and the law as stated above as to what constitutes general damages there is no legal basis to disturb the award of general damages of the sum of N5,000,000.00 awarded in favour of the respondents against the appellant as amply justifiable in the circumstances of this case.The amount is not ridiculously too high or too low. As the appellant allowed crude oil, which is dangerous to escape into a neighbour’s land (that) amounted to negligence, as rightly found …”

The evidence before the trial Judge which he accepted was that extensive damage was done to the crops, farms, farmlands, ponds, creeks of the plaintiffs. There was also evidence of widespread environmental pollution. It has not been shown to us in this court that the N5m general damages awarded was manifestly too high as to be classified an erroneous assessment of the damage done to the plaintiffs. This is an area in which the award made by a trial court is not readily interfered with by an appellate court. I must therefore decline the invitation by the appellant to interfere with the award made by the trial court which was affirmed by the court below.

The appellant has also raised an issue to the effect that the award of one million naira to the plaintiffs as costs was excessive and unreasonable. The appellant however had not challenged the award of costs in its appeal from the High Court to the court below. The jurisdiction of this court enables it to take appeals only from the Court of Appeal and not from the High Court. See Sunday Oduntan v. General Oil Limited (1995) 4 NWLR (Pt. 387) 8.The appellant’s issue 5 must therefore be struck out. In the final conclusion, this appeal partially succeeds. The awards bf N400,000.00 as general damages for damage to raffia palms and N600,000.00 for loss of drinking water are set aside. I affirm the award of five million naira (N5,000,000.00) as general damages and one million naira as costs in the trial court. I award to plaintiffs/respondents against the appellant costs assessed and fixed at N10,000.00.

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SC.9/1999