3PLR – ELF NIGERIA LIMITED V. OPERE SILLO AND ANOTHER

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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ELF NIGERIA LIMITED

V.

OPERE SILLO AND ANOTHER

IN THE SUPREME COURT OF NIGERIA

SC.51/1992

FRIDAY, 1ST JULY. 1994

3PLR/1994/37 (SC)

 

OTHER CITATIONS

6 NWLR (Pt.350)258

 

BEFORE THEIR LORDSHIPS

MUHAMMADU LAWAL UWAIS, J.S.C. (Presided)

EMANUEL OBIOMA OGWUEGBU, J.S.C.

UTHMAN MOHAMMED, J.S.C.

SYLVESTER UMARU ONU, J.S.C.

YEKINI OLAYIWOLA ADIO, J.S.C. (Read the Leading Judgment)

 

BETWEEN

ELF NIGERIA LTD

 

AND

1. OPERE SILLO
2. DANIEL ETSEMI(For themselves and on behalf of Sillo family of Obodo)

 

REPRESENTATION

K.E. Mozia – for the Appellant

Dr. M.Odje. S.A.N. (with him, S.O. Edema Sillo and M.A.T. Keshinro) – for the Respondents

 

MAIN ISSUES

APPEAL – Brief writing – Issue for determination – Need to arise from ground of appeal filed – Issue not arising from ,ground of appeal – How treated.

APPEAL – Concurrent findings of fact – Attitude of the Supreme Court thereto.

APPEAL – Damages awarded by trial court – When appellate court will interfere – Principles applicable.

APPEAL- Findings of fact by trial court- Attitude of appellate court thereto -When it will interfere – When it will not.

DAMAGES – Proof of damages – Standard required where evidence led on damages unchallenged.

EVIDENCE – Admissibility – Expert evidence – When to admit – When to reject – Guiding principles.

EVIDENCE – Expert evidence – Admissibility of- Principles applicable.

EVIDENCE – Expert evidence – Where given by expert called by a party -Evidence of independent “fitness on same issue – Attitude of wart – Which is preferable.

EVIDENCE – Proof – Burden of proof- Loss of rent by plaintiff where defendant causes flight of plaintiff’s fishermen tenants – What plaintiff should prove to succeed.

EVIDENCE – Proof – Standard of proof of damages where plaintiff s evidence is unchallenged.

PRACTICE AND PROCEDURE – Concurrent findings of fact of lower courts – Attitude of the Supreme Court thereto.

PRACTICE AND PROCEDURE – Pleadings – Suppression of writ of summons by statement of claim.

STATUTE – Minerals Act – Seed on 3(I) -Whether affects right of inhabitant to fish in tidal waterways – Whether compensation can be claimed from another who infringes on such right.

 

MAIN JUDGEMENT

ADIO, J.S.C. (Delivering the Leading Judgment):

In the Warri Judicial Division of the High Court of the defunct Bendel State of Nigeria, the respondents instituted an action, in a representative capacity, on behalf of themselves and of the Sillo family of Obodo town, against the appellant. Their claim, as stated in paragraphs 12(l) and (2) of the Amended Statement of Claim was as follows:

“1.     Compensation for loss of fishing rights in perpetuity over the non-existence of Esiesi Rivers based on loss of actual income to the family from 80 fishermen tenants at N30 per month for a period of forty years……. N 1,152,000.00

2. Compensation for injury to the plaintiffs’ family feelings of dignity and pride following the annihilation of the ‘Oriomo’ goddess of Esiesi River and the consequential discontinuance of the traditional rites associated with the satisfactory performance of the goddess assessed as

….. 98 000.00

N1,250,000.00

Pleadings were duly filed and exchanged by the parties. The evidence led was that the appellant was a limited liability company engaged in oil exploration. As a result, the appellant, through its servants and agents, entered upon the respondents’ family land in the riverine areas of Warri Local Government in 1967. The appellant established subsequently various oil locations on the respondent’s adjoining family land near Esiesi creek or river which was the main source of fishing activities; the main occupation of the members of the respondents’ family. The allegation of the respondents was that in the course of its operation in Esiesi river area, the appellant constructed a number of canals to connect the nearby waterways to its various oil locations and in the process diverted the natural course and flow of Esiesi river at strategic points and that led to the siltation of the said river or creek consequent upon which the river or creek became unsuitable for fishing activities as in the past.

The contact of the respondents’ family with River Esiesi dated back to about 1880 through the ancestor of the respondents called Sillo Jaluwa in the course of his fishing expeditions. The river was rich in fish yield and, so, the respondents’ ancestors, through the guidance of ‘Oriomi’, the sea goddess, established, along the bank of the river, a shrine and two large fishing settlements. The goddess was being worshipped regularly by the members of the respondents’ family and ceremonies continued annually until the siltation of the river as a result of the operations being carried on by the appellant. The aforesaid oil exploration in which the appellant engaged in and around the area starved the river of marine life with disastrous consequences to the fishing activities in the river leading not only to personal loss of but also loss of monthly rents being collected by members of respondent’s family from their fishing tenants in the settlements established by the family. The tenants were forced by circumstances consequent upon the oil exploration activities, being carried on by the appellant, to quit the aforesaid settlements of the respondents as the river was no longer rich in fish yields. The appellant denied the allegation.

The learned trial Judge after due consideration of the evidence before him and the submissions of the learned counsel to the parties entered judgment for the respondents in terms of paragraph (1) of their claim set out above and awarded them N280,000.00 as compensation. He held that the action of the respondents, as it stood, was maintainable notwithstanding the rights vested in the members of general public to fish in tidal waters. He also held that as a result of the combined effect of the entire operation of the appellant in and around the land of the respondents adjacent to Esiesi river, what was left at both ends of the river was nothing but stagnant water and that a critical examination of Exhibit “9” (a survey plan of the area) fortified his conviction that the magnitude of the operations carried out by the appellant was so far reaching as to divert the course of flow of water in Esiesi river such that Esiesi River was left with the ghost of its former self. He, therefore, found as a fact that both ends of the river were not only silted but stagnated as a result of the oil exploration being carried on in the area by the appellant. He accepted the evidence led by the respondents that one of the consequences of what happened was that fish was no longer available in Esiesi River. The learned trial Judge awarded the respondents the sum of N280,000.00 for loss of fishing rights based on the rents collected from fishing tenants staying in their settlements who left the settlements as a result of fish not being available in the river again.

Dissatisfied with the judgment of the learned trial Judge, the appellant appealed to the Court of Appeal which endorsed the findings of fact made by the learned trial Judge and dismissed the appeal. As the appellant was dissatisfied with the judgment of the court below, a further appeal was lodged by it to this court against the judgment. In accordance with the rules of this court, the parties filed and exchanged briefs. Four issues for determination were identified in the appellant’s brief while three issues for determination were identified in the respondents’ brief. The first issue for determination in the respondents’ brief is incompetent as it was not based on any ground of appeal. The four issues for determination in the appellant’s brief and the second and the third issues for determination in the respondent’s brief are sufficient for the determination of this appeal. They areas follows:

(1)     Can a party base his case at the hearing on facts and circumstances different from the basis of the claim as formulated in his pleadings?

(2)     Assuming that the appellant subjected portions of the Esiesi River which is a tidal waterway to a mode of user which resulted in siltation without interference with the use or occupation of the adjourning river banks or land, should the respondent as owner of such land be compensated if such occupiers consequently decide voluntarily to leave the land?

(3)     Was the Court of Appeal right in its finding that a witness called as an expert on an issue can be a limited expert and his view on the issue still taken cognizance of by the court while ignoring a more acceptable version by the witness called by the appellant.

(4)     Whether there was proof that the appellant caused the siltation of Esiesi River and that such was harmful to fish.

(5)     Whether the respondents had proved their case that the appellants operations in the area, including its construction of canals from the Esiesi River caused the siltation of the Esiesi River which thereby deprived the respondents of their customary fishing rights, rents and/or earnings.

(6)     Whether the Court of Appeal was right in affirming the award of damages made by the learned trial Judge in this case in favour of the respondents, arising out of the activities of the appellant in the Esiesi River and its neighbourhood.”

In considering the question raised under the first issue above, I have to point out that the learned trial Judge accepted the evidence led by the respondents that one of the consequences of what happened was that fish was no longer available in Esiesi River. He awarded the respondents N280,000.00 for loss of fishing rights based on the rents being collected by the respondents from their fishing tenants, staying in their settlements, who left the settlements as a result of fish not being available in the river again. In upholding the decision of the learned trial Judge based on paragraph 12(1) of the amended Statement of Claim quoted above and the finding that the rent being collected by the respondents from their fishermen/ tenants could validly be a basis of awarding compensation to the respondents, the court below, after considering the legal authorities on the issues and specifically citing Bi aide v. Adaki (1931) 10 NLR 15, stated, inter alia, as follows:

“By this judgment, it is quite clear that the full court preserved the right of an owner of land which abuts the creeks or through which a tidal waterway flows to exact rent from persons who fish in those waterways but use the abutting land, at least more than temporarily, to service their fishing occupation…………. The state of the law is therefore very much as decided in Braide v. Adaki………. The most important finding of fact to which the state of the law is relevant and has to be applied, is the finding that the respondents had on their river bank land fishermen tenants who settled on their fishing camps/settlements set up by their ancestor Sillo Jaluwa with their express permission, with the sole purpose of fishing in Esiesi River. The first question of law that now has to be determined is whether the rent ‘extracted’ by the respondents from these fishermen tenants are ‘illegally’ or `legally’ extracted’. There can be no doubt having regard to the decision in Braide v. Adaki (supra), as to the rights of owners of land adjoining, abutting or encompassing tidal waterways, that the respondents are within their rights to collect rent from fishermen in this case, so long as their occupation of their land cannot be described as `temporary.’ In the instant case, such description has not been canvassed and cannot in fact arise. Where the fishermen/tenants lived are fishing settlements which were set up very many years earlier by the respondents’ ancestors. It therefore follows that the respondents’ collection of rent from its tenants/fishermen, far from being `illegal extraction’ is a legal collection. The right to free fishing in the Esiesi River cannot on the state of the law take away this right. The finding of the learned trial Judge complained both as to existence of this right in the respondents and the consequences which flow from an interference with such rights by the appellant, are therefore in my view well considered and correct.”

It was conceded in the appellant’s brief that the Court of Appeal, through its lead judgment, considered the legislation, Minerals Act of 1916, the relevant court decisions on this aspect of the matter. However, it was the contention of the appellant that the Court of Appeal misapplied the provisions of the Act and the principles enunciated in the court decisions considered by it. It was, therefore, submitted that it was a misconception to seek to tie the respondents’ claim to occupation of land or desertion thereof rather than exacting rents from alleged tenants as a condition for exercising the right to fish on Esiesi River, a tidal waterway,. The contention in the respondent’s brief was that the respondent’s claim was confined to loss suffered in relation to the exercise of their customary fishing rights in and around Esiesi river and rent for the settlements. The position is that it was on the part of the appellant that there was a misconception. The claim of the respondents, as stated in Exhibit “A,” was for compensation in the sum of N 1.250.000.00 due to the respondents from the appellant for the permanent loss by the respondents of their fishing rights as a result of the silting of Esiesi river in consequence of the oil exploration of the appellant, and for causing of severe hardship and loss of customary earnings of the respondents’ family. There were, therefore, two aspects of the claim, namely, (a) the fishing right of the members of the respondents’ family, and (h) the customary earnings of the family, which on the basis of the evidence before the court, included collection of rents from fishing tenants living in the permanent settlements established by the respondents’ family. No doubt the particulars of the claim of the respondents’ in the writ of summons were different from the particulars of their claim in paragraphs 12(I) and (2) of their second Amended Statement of Claim which are set out above in this judgment. The law is that a statement of claim supersedes the writ. See A.-G.Bendel Stare & Ors. v. Aide-Van, (1989) 4 NWLR (Pt. 118) 646. Even in the case of paragraph 12(I) of the Second Amended Statement of Claim, quoted above, it is quite clear that though paragraph 12(I) aforesaid might not be elegantly drafted. the respondents’ claim was based partly on the loss of the fishing rights of the members of the respondents’ family and partly on the loss of actual income by the family of the rent being collected by them from eighty fishermen tenants at N30.00 a tenant per month for a period of 40 years.

The next question is whether members of the respondents’ family could sue for compensation for loss of their fishing rights and for loss of their actual income consisting of the rent being paid for the settlements established by the family in which the fishermen tenants were permanently living. The learned trial Judge answered the question in the affirmative and the court below affirmed his finding on the point. The question cannot be answered without reference to section 3(1) of the Minerals Act, Cap. 21, which provides as follows:

“3(I) The entire property in and control of all minerals and mineral oils, in, or under or upon any lands in Nigeria and of all rivers, streams and water courses throughout Nigeria, is and shall be vested in the Crown, save in so far as such rights may in any case have been limited by any express grant made before the commencement of this Act.”

In Braide’s case, supra, it was held that the effect of section 3(I) of Minerals Act was to make fishing within tidal waterways free to all inhabitants of the country and that for the purpose of such fishing they were entitled to establish temporary occupation on the banks of such waterways. Adeshina v. Lemonu (1965)] All NLR (Pt. l) 233, is authority for the proposition that the common right of fishery in tidal water is recognised and the right is not affected by the Minerals Act. Members of the respondents’ family were inhabitants of this country and were entitled to fish and, from the evidence before learned trial Judge, were fishing in Esiesi river in their own right as inhabitants of this country. If a plaintiff, like the members of the respondents’ family proves the existence of his right to fish in tidal water, like Esiesi River; the violation of his aforesaid right; and that he used to make money from the fishing, he is entitled to compensation. Also, a plaintiff who proves that he established settlements permanently on the banks of waterways in which fishermen were staying or living for the purpose of fishing is entitled to collect rent from such fishermen tenants and if his right to earn the income from such rent is violated he is entitled to compensation. The foregoing legal principles were what the learned trial judge upheld and which the court below endorsed. The principles aforesaid are supported by the decision in Braide’s case, supra, and Adeshina’s case .supra. The answer to the question raised under the first issue is that the facts on which the respondents based their claim at the hearing were those that they averred in their Amended Statement of Claim.

There were the questions raised under the third, fourth and the fifth issues. One of them was whether the respondents proved that the appellant’s operations in the area, including its construction of canals from Esiesi River caused the siltation which thereby deprived the respondents of their customary fishing right. The other question was whether the appellant caused the siltation of the river and whether such was harmful to fish. Both the appellant and the respondents led evidence generally, on the points, and with particular reference to the construction of canals by the appellant. The evidence led by the respondents was that Esiesi river had been there from the time it was discovered by their ancestors. Members of the respondents’ family and their fishermen/tenants had been fishing in it continuously for many years and there was no heavy siltation which could lead to the disappearance or non-availability of fish in sufficient or commercial quantity. It was when the appellant came and engaged in oil exploration, warranting the construction of canals, in the river. that the river became silted. The river became stagnant and there was no more fish. The appellant’s position was that Esiesi River was not deep. It was a meandering river which was, in any case, liable to siltation. The witnesses called by each party included one who was referred to as ‘an expert’ or ‘limited expert’. After a careful evaluation of the totality of the evidence before him, the learned trial Judge preferred the evidence led by the respondents and rejected the evidence led by the appellant. In doing so, he stated, inter alia, as follows: “The truth, however, is that Esiesi has existed all these years, its meandering nature notwithstanding, without heavy siltation. It was not until the defendant came to the scene and carried out its various operations in the area, that its two ends became heavily silted. The effect of what the defendant did, is to divert its natural water course at various points, thereby rendering the two extremities blind comers. Mr. Ibagere told me that what is left of water, at both ends of Esiesi River is nothing but stagnant water and it is my view that this siltation has been brought about by the combined effects of the entire operations of the defendant in and around the lands of the plaintiff, adjacent to Esiesi River. A critical examination of Exhibit 9 fortifies my conviction that the magnitude of the operations carried out by the defendant is so far reaching as to divert the course of flow of water in Esiesi River such that Esiesi is now left with the ghost of its former self. I find as a fact that both ends of the river are not only silted but stagnated, a siltation which the defendant has continued to perpetuate by their continued periodic sweeping of its uncoloured portion which to all intents and purposes now form but direct link with Jones creek to Folofolo creek.”

Apart from the foregoing finding of the learned trial Judge on the effect of the oil exploration. involving the digging of canals, in which the appellant engaged in the area, the learned trial Judge also found as a fact that the siltation of parts of the Esiesi River, caused as a result. was harmful to and was responsible for disappearance of fish from Esiesi River. The Court of Appeal, per Uche Omo, J.C.A, (as he then was) upheld the aforesaid findings of the learned trial Judge on .the points. He stated, utter alia, as follows:

“To summarise on this first segment of the second issue as argued, whether or not P.W.3 was correctly treated as an expert. his report and that of D.W. I were properly admitted in evidence, considered along with other evidence, before the learned trial Judge arrived at the conclusion he did on the cause of siltation and his finding of fact thereon, which has been set out herein-before, to wit. that the operations of the appellant were directly responsible for the massive siltation of its ends which made the Esiesi not navigable from one end to the other. As to the other aspects of the first segment of the second issue argued in paragraph 10 of the respondents brief. it is enough to state that the learned trial Judge’s findings attacked were based on evidence before h im and his correct analysis of same. The second segment of issue 2, complains that the onus of proving that the siltation was harmful to fish was not discharged.

Finally. on. the second.. segment of issue 2. I do not accept the submissions that there was no proven and/m admitted facts on which the conclusion that the appellant is responsible for the siltation complained of is founded. The judgment of the learned trial Judge shows clearly and satisfactorily how this conclusion was arrived at nor do the-findings of the trial Judge ‘after a close examination of locations themselves, depicted on Exhibits I and 9’ lead to the conclusion that the Esiesi River could not have been used to ferry the materials brought in by the appellant in 1967. The contrary must be and is the case, as found by the trial Judge, and his rejection of the evidence of the appellant in this respect is well founded. The answer to issue 2 therefore is that the onus of proving that the siltation caused by the appellant was harmful to fish in the Esiesi River was discharged by the respondents.”

The appellant argued that although there was reference in the respondents’ pleading to alleged movement of heavy equipments through Esiesi River, there was no evidence in proof of the allegation. It was argued that the learned trial Judge misconstrued the totality of the evidence before him in rejecting the evidence of the appellant, which rejection the Court of Appeal affirmed. In the view of the appellant, the statement in the report of P.W.3 concerning the transportation of equipment on Esiesi River by the appellant to certain sites was based on hearsay and that, in any case, there was no evidence of what was the depth of Esiesi River before the appellant commenced exploration for oil in the area. On the related question of whether siltation of the river was harmful to fish, the submission of the appellant was that there was no categorical finding on the point. Reference was made to the evidence of D.W. 1 who alleged that during his inspection of the area he observed some fishing on the river. The submission for the respondents was that the findings of the learned trial Judge on the points were supported by the evidence before him and that the court below was right in affirming them.

Apart from other things, the reason given by the learned trial Judge for preferring the evidence of the P.W.3 to the evidence of the D.W. 1 was a valid reason. Each of the witnesses prepared a report which formed the basis of his evidence and which was tendered and admitted during the proceedings. The evidence of the P.W.3 was that siltation of Esiesi River was as a result of the operations in which the appellant engaged in the area, particularly the construction of the canals. The D.W. 1 in his own case testified that the siltation of the river was natural. The P.W.3 made an inspection of the area on the direction of the Hon. Attorney-General of the state at a time when the possibility of the matter being settled amicably out of court was being explored while the D. W. I prepared his own report specifically for this case on the basis of the direction of the appellant to the firm of the witness. The learned trial Judge felt, rightly, that the P.W.3 was an independent witness and his report acceptable than the report prepared, specifically for use in this case, at the instance of the appellant. In preferring the evidence of the P.W.3 to the evidence of the D.W. 1, the learned trial Judge had regard, rightly in my view, to other evidence before the court, which included the evidence that the river in question had been in existence and people had been fishing in it continuously for many years without its being silted heavily at any time. It was after the appellant came to the area and commenced oil exploration involving the digging of canals on the river by the appellant that the question of the river being heavily silted arose.

The appellant also canvassed the question, raised under the third issue, of P. W.3 and D. W. I being treated as “experts” or “limited experts,” and that since D. W. I u a, an expert his evidence should have been the one to be preferred to the evidence ol P. W.3 who was not an expert because he had no training in siltation of rivers. The provision of section 56(l) of the Evidence Acton opinions of experts is as follows:

“56(1)When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specifically skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impression. are relevant facts.”

The persons specially skilled referred to in section 56(1) of the Evidence Act, quoted above are, by virtue of section 56(2) of the Act, called experts. If the evidence of an expert is not shaken under cross-examination and is uncontradicted

it should be admitted. See Oyakhire v. Obaseki (1986) 1 N WLR (Pt. 19) 735 at p. 742. It has, however, to be pointed out that the admission of such evidence is subject to there being no good reason to reject it, and, in the process of scrutinising it, could be rejected if there is a reason to do so. See A.-G., Oyo State v. Fail-takes Hotels (No.2) (1989) 5 NWLR. (Pt. 121) 255. If in the light of other relevant credible evidence before the court the evidence of the expert is not or cannot be true it cannot be said to be uncontradicted and the court will be entitled to reject it. Indeed, the existence of other relevant and credible evidence before the court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting it. Part of the reasons for the rejection of the evidence of D. W.3 by the learned trial Judge was the fact that the river in question, as stated by the learned trial Judge in part of his judgment quoted above, had been in existence for many years without heavy silting notwithstanding its meandering nature until the appellant came to the scene and commenced its operations. The court below endorsed the admission of the reports of the P.W.3 and D.W. I by the learned trial Judge and pointed out that the learned trial Judge was right in considering the reports along with their evidence before he arrived at his conclusion on the cause of siltation. The court below, rightly in my view, affirmed the conclusion of the learned trial Judge on the point.

With reference to the question whether the siltation of Esiesi River caused by the appellant was harmful to fish, the learned trial Judge made a finding that it was. An appellate court will reverse a finding of fact of the lower court if the finding is not supported by evidence. See Lemgbe v. Imole (1959) WRNLR. 325; and Fatuande v. Omwoamanam (1990) 2 NWLR (Pt. 132) 322. There was evidence before the learned trial Judge that as a result of the siltation, the river became shallow and was stagnant. Fish was no longer available in the river. The members of respondents’ family and their fishermen tenants could no longer fish in the river. They all lost their right to fish in the river. The fishermen tenants consequently left the settlements of the respondents’ family and no further rents for the occupation of the settlements could be collected from the tenants. The court below was, therefore, right in affirming the finding of the learned trial Judge as it was supported by evidence. The answer to the question raised under the third, fourth and fifth issues is in the affirmative.

Next is the question raised under the sixth issue above which is whether the Court of Appeal was right in affirming the award of damages made by the learned trial Judge in favour of the respondents. The learned trial Judge, in this connection, accepted the evidence of the respondents as to the rent being collected by them from their fishermen/tenants which showed that the tenants were eighty and that the rent paid by each of them was N30.00 per month which was N28,000.00 per annum. The respondents multiplied it by forty to arrive at the sum of N1,152,000.00 which they claimed. The learned trial Judge, however, thought that it was enough and reasonable, in the circumstances of this case, to multiply the annual rent of N28,000.00 by ten. He did sound awarded the respondents the sum of N280,0(A).00 He did not take into account the previous payments which amounted to N78.707,02 made by the appellant because he was of the view that those previous payments were made for something different from the things that formed the basis of the present compensation. The court below held that the award of compensation by the learned trial Judge was justified and affirmed it. Before concluding this aspect of the matter, I will like to consider the question raised under the second issue.

I now come to the question raised under the second issue. The submission made for the appellant was that Esiesi River was still in existence and since the rent collected by the respondents from the fishermen/tenants was for their (tenants) fishing in the river which was subject to tidal influence, the collection of rent was illegal being contrary to section 3 of the Mineral Act. Alternatively, it was argued, that if the collection of rent by the respondents from the fishermen/tenants was legal in the sense that it was for the permanent settlements, of the respondents, occupied by the fishermen/tenants, an award of compensation on that ground was wrong in the absence of any allegation of interference (such as demolition or destruction of the settlements by the appellant) with their (tenants’) right to continue fishing in the river: the tenants’ decision to leave the settlements was voluntary. The respondents’ contention was that the compensation and the basis for the award were supported by the evidence before the learned trial Judge and the decision of the court below affirming same was right.

No. one had suggested throughout the proceedings in the trial court, in the Court of Appeal. and in this court that Esiesi River was no longer in existence. The river was still in existence but it was established that it was a ghost of itself. It was heavily silted. had become shallow and the water in it was stagnant. Consequently, fish was no longer available therein in sufficient or commercial quantity as the heavy siltation of the river caused by the oil exploration of the appellant in the area was harmful to fish. As a result. the fishermen/tenants living in the permanent settlements established by the respondents left the settlements and thus the respondents were deprived of the usual rent being collected by them from the tenants. All the foregoing were part of the findings of fact made by the learned trial Judge, and since the findings were supported by evidence which was before the learned trial Judge. there is no legal basis for the interference of this court with the affirmation of the findings by the court below. It has been pointed out in this judgment that the respondents’ claim was for compensation for the loss of the fishing right of members of the family of the respondents and for the loss of the rent being collected from the fishermen/tenants for their occupation of the permanent settlements of the family near the river. The liability of the appellant in relation to the rent being collected from the fishermen/tenants did not depend on the appellant physically driving the tenants out of the settlements or destroying the settlements. It was enough if it was established, and it was established in this case, that what the appellant did or omitted to do resulted in or caused the movement of tenants out of the settlements. With reference to the previous payments made by the appellant for certain things, the court below held that the present award of compensation did not result in double compensation of the respondents. The previous payments did not include rent of settlements.

I continue my consideration of the award of compensation. In the case of quantum of the award of compensation, the appellant should consider itself lucky because the award related only to the rent being collected by the respondents from the fishermen/tenants and did not include any award for the loss of the fishing rights of members of the respondents’ family who were also fishing in the river before it became heavily silted. Further, the compensation claimed for loss of rent being collected from the fishermen/tenants was rent for forty years which the learned trial Judge reduced to rent for only ten years. As there was no cross-appeal in relation to the foregoing this court could not do anything about the matter. In any case, alteration of an award of damages will be made only if the award is shown to be either manifestly too high or manifestly too low or was an award made on a wrong principle. See Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136. It is only where the appellate court is convinced that an award of damage is entirely an erroneous estimate that it will interfere. See Onagu & ors. v. Micho & Co (1961) (1961) 2 SCNLR 101; (1961) 1 NLR 324 at p. 328. The appellant has not shown that the award of compensation made by the learned trial Judge, which was affirmed by the court below, was against any of time foregoing principles. The court below was, therefore, right in affirming the award of damages made by the learned trial Judge in this case in favour of the respondents.

The issues raised in this appeal were determined on the basis of the findings of fact made by the learned trial Judge which were affirmed by the court below. In other words, they were based on the concurrent findings of fact of the court of trial and the court below. The submission of the respondents, with which 1 agree, was that no exceptional circumstances warranting the interference of this court have been shown. This court does not interfere with concurrent findings of the lower courts except where exceptional circumstances why it should do so are shown. See Enigwe v. Akaigwe. (1992) 2 NWLR (Pt. 255) 505. The appeal lacks merit and it is hereby dismissed. The judgment of the court below and its order for costs are hereby affirmed. The respondent are awarded N 1.0(10.00 costs to be paid by the appellant.

UWAIS, J.S.C.: I have had the privilege of reading in draft the judgment read by my learned brother Adio, J.S.C. I entirely agree with the judgment and do not wish to add anything.

Accordingly, the appeal fails and it is hereby dismissed with N1,000.00 costs to the respondents.

OGWUEGBU, J.S.C.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Adio, J.S.C. I agree with the reasoning and conclusions reached by him.

There was sufficient proof that the appellants were responsible for the siltation of the river. The plaintiffs did this through P. W.3- a Chartered Surveyor. He testified that wherever the canals cut across the Esiesi River, all the entrance to Esiesi Creeks were heavily silted and that Esiesi River was silted as a result of the deep canals dug in the area of Elf Nigeria Ltd.

P.W.4 (Chief Tagbajumu Omereye), stated that since the digging of the canals by the appellants, there was now no link between Esiesi and Wowo Rivers because of siltation and fishing activities along the river had stopped. P.W.5 (Eyefujirin Bafor testified as follows:

“We left the place because the defendant/company dug the Esiesi River and spoilt the river. They dug some creeks which drained the main Esiesi River which became stagnant and silted. There was no fish coming to it and so, we had pack away from our settlement which is now uninhabited by anyone. ………………………………… All the settlements in the area have been deserted as a result of the acts of the defendant.” The defendants through their witnesses led evidence to the contrary in a bid to show that the siltation was natural. The learned trial Judge after weighing the evidence led by both parties, found as a fact that the plaintiffs had established that the siltation of the Esiesi River was caused by the defendants.

The truth however, is that Esiesi has existed all these years, its meandering nature notwithstanding, without heavy siltation. It was not until the defendant came to the scene and carried out its various operations in the area, that its two ends became heavily silted. A critical examination of Exhibit 9 Mortifies my conviction that the magnitude of the operations carried out by the defendant is so far reaching as to divert the course of flow of water in Esiesi River such that Esiesi is now left with the ghost of its former self. I find as a fact that both ends of the river is (sic) not only silted but stagnant.” The Court of Appeal affirmed the above findings. It is well settled that this court will not interfere with concurrent findings of fact of two lower courts unless there is compelling evidence which clearly shows that there had been erroneous appraisal of such facts: See Dike & ors. v. Obi Nzeka II & Ors. (1986) 4 NWLR (Pt. 34) 144, 77)c Queen v. Obodo (1961) 2 SCNLR 366; (1961) NSCC. 311, Ete v. State (1976) I I S.C. 75 and Okafor & ors. v. Idi,co & ors. (1984) 1 SCNLR 481;(1984)6 S.C.1.

I too, dismiss the appeal and affirm the decisions of the courts below. I abide by all the orders contained in the judgment of my learned brother Adio. J.S.C. including the order as to costs.

MOHAMMED, J.S.C.: I entirely agree with the lead judgment read by my learned brother. Adio J.S.C., that this appeal lacks merit and ought to be dismissed. My learned brother has considered all the salient issues raised in this appeal and I have nothing more to add.

The appeal is accordingly dismissed with costs as assessed in the lead judgment.

ONU, J.S.C.: I had before now the advantage of a preview of the judgment of my learned brother Adio. J.S.C. and I agree with it that the appeal must perforce fail. I only wish to add the following comments of mine by way of elaboration. The gravamen of the plaintiffs/respondents’ case and as can be deciphered from their paragraph I2(l) and (2) of their second amended statement of claim before the High Court of the defunct Bendel state sitting in Warri, was briefly that (1) In the course of its operation in the Esiesi River or Creek in Obodo District, Warri Local Government, now in Delta State, the defendant/ appellant (a limited liability company engaged in oil exploration in 1967, constructed a number of canals to connect the nearby water ways to its various oil locations and in the process diverted the natural course and flow of the said Esiesi River or Creek at strategic points and that led to the siltation of the said River Creek, consequent upon which the River or Creek became unsuitable for fishing activities as in the past. They (plaintiffs/respondents) were therefore claiming firstly, for:

“Compensation for loss of fishing rights in perpetuity over the non-existence of Esiesi River based on loss of actual income to the family from 80 fishermen tenants at N30 per month for a period of forty years.”

Amounting to N 1,250,000 and secondly, for a further sum of N98.000 for injury to their feelings of dignity and pride following the annihilation of their goddess Oriomi of Esiesi River.

The learned trial Judge after taking evidence from both sides and listening to the submissions of counsel, gave his considered judgment wherein he awarded the respondents N288,000.00 compensation with N800 costs, the former which as would seem clear, was the amount realisable from respondents’ fishermen tenants calculated over 10 years only instead of forty years. The sum for loss of fishing rights of members of the respondent’s family as well as that for injury to their feelings of dignity and pride associated with the disappearance of their goddess Oriomi were disallowed.

The appellant’s appeal to the Court of Appeal, Benin Division (it having earlier shown in evidence that it had paid the respondents the sum of N78,000 for certain things) was on 1st December, 1990 dismissed.

Being aggrieved by the decision of the court below the appellant has further appealed to this court on four grounds two original and with leave, two additional grounds. The four issues formulated and identified for our determination at appellants instance are:

(i)      Can a party base his case at the hearing on facts and circumstances different from the basis of the claim as formulated in his pleadings?

(ii)     Assuming the appellant subjected portions of the Esiesi River which is a tidal waterway to a mode of user which resulted in siltation without interference with the use or occupation of the adjoining river banks or land, should the respondent as owner of such land be compensated if such occupiers consequently decide voluntarily to leave the land?

(iii)    Was the Court of Appeal right in its finding that a witness called as an expert on an issue can be a limited expert and his views on the issue still taken cognizance by the court while ignoring a more acceptable version by the witness called by the appellant.

(iv)    Whether there was proof that the appellant caused the siltation of Esiesi River and that such was harmful to fish.

On the strength of the pleadings, it was common that at all material times there was siltation of the Esiesi River and that the point really in contest was who caused it. The respondents in paragraph 6 of their further amended statement of claim attributed the siltation of the river to the activities of the appellant consequent upon its construction of canals among other acts. The appellant for its part in its further amended statement of defence ascribed siltation to natural causes. However, based upon the evidence led by both parties at the trial wherein the respondents demonstrated how siltation resulted when the appellant arrived on the scene at the commencement of its oil explorations vis-à-vis the appellant’s admission that when they arrived they even used the river’s channel to move their large bags and other equipment-carrying vessels to their oil exploration locations as well as the construction of canals and slots, making the river to become nonexistent, through siltation or had become stagnant, the learned trial Judge did not find it difficult in evaluating the evidence on either side to find in favour of the respondents that the siltation was attributable to the appellant. Whose acts interfered with customary rights of the respondents causing the fishing tenants to be deprived of their fishing rights and livelihood. Hence, evidence led at the trial could not be said to have been at variance with the pleadings since issues were fully joined. See Adimora o. Aju/o (1988) 3 NWLR (Pt. 80) 1 and Balogun v. Akanji (1988) 1 NWLR (Pt. 70) 304. The affirmation of the decision of the learned trial Judge by the learned Justices of the court below, in my view is unimpeachable. It is no misconception therefore to say that the respondent were not by their claim in the trial court, shared to enforce a right to fish in tidal waters which the public seeking in common as but law established, other than the enforcement of their family’s right to exact monthly rents from fishing tenants who settled in their land to fish in Esiesi River, and which by custom existed but lost through a direct consequence of the appellant’s operations in the area. The validity of such rights derived as it were from custom hallowed by immemorial antiquity having been established in evidence, gave teeth to the respondents’ claims.

If as demonstrated in the trial court and upheld by the court below, the respondents were getting their livelihood from fishing and the rents from the fishing tenants living and fishing on the banks of Esiesi River, the user over which they had exercised customary rights since 1888, the damages naturally flowing from the appellant’s actions consequent upon which respondents were deprived of the fish therein, to wit: On liability based on 10 years rent accruable from the 80 fishing tenants at N30 per month quantified at N288,000 was, rightly in my view. awarded to the respondents. This, in my opinion. is beside the N78,000.00 earlier paid to the respondents as part of their antecedent claims which 1 do not regard as double compensation see Henry Ereani v. Abraham Efdike (1964) 1 All NLR 402). Thus, based upon the state of the pleadings and the evidence led before the trial court, it is clear that the respondents were not debarred from prosecuting their claims, their hands having been strengthened rather than hampered by such judicial decisions as Br aide v. Adoki (1931) 10 NLR 15: Adeshina v. Lemonru (1965) 1 All NLR (Pt. 1) 233 and the provisions of sections 3(1) of the Minerals Act, Cap, 226 Vol. xv Laws of the Federation of Nigeria, 1990. This is because the respondents’ action as I see it, was confined to customary fishing rights and rents involving customary earning in and around Esiesi River but not as to claims declaratory or injunctional, of exclusive rights to Esiesi Creeks. That is why in its findings after evaluating the evidence and considering the cases referred to above, the trial court held that the position of the respondents

“is no different from what was declared by the court in Braid ……………………………….” and where, also relying in this regard on the case of Machine Untucjje & anor. v. Shell-B.P. Petroleum Dev Co. (1975) 9-11 S.C. 155, it maintained that:

“The case of Machine Umudie ……. (supra) as it stands is maintainable notwithstanding the rights vested in the general public to fish in tidal waters.”

As the court below unequivocally confirmed the findings of the trial court on the justiciability of the respondents’ claim on the above decided cases, nothing in the Mineral Act, section 3(1) which provides that:

“The entire property in and control of all minerals and mineral oils in, under or upon land in Nigeria, and of all rivers, streams and water courses throughout Nigeria is and shall be vested in the state.”

points to an intention to affect the existing and vested ancient and customary rights of the respondents in respect of Esiesi River, its basin, creeks and estuaries inclusive. Hence, to vindicate its reliance on the vested customary rights residing in the respondents, support was sought in Uyovwukerhi v. Afonughe & anor (1976) 5 SC 85, a case in which this court had inter alto that:

“there is nothing in the Mineral Act pointing to an intention to effect existing rights of fishing by vesting the rivers etc. in the state.” Thus, this action is in my view, clearly maintainable by the respondents.

On the alleged error in law by the learned Justices of the court below holding that of the witnesses called in this case, not only 3rd P.W. but also D.W. 1 and D.W.3 were regarded expert witnesses. I need only point that although these men were experts in their chosen fields and could by no means be regarded as experts in the study of siltation, and which was one of the masters agitated in argument before the trial court, the court below corrected any notion of their expertness when it held thus:

“Whether or not they can be acceptable as experts in siltation, neither report was accepted wholesale and acted upon. They gave direct oral testimony to back up their opinions expressed by them in Exhibits 6 and 7B vide section 76(c) of the Evidence Act.” Indeed, the trial court made specific findings of fact based on other evidence to wit: Exhibits 1 and 9 before also considering Exhibit 6 and 7B. See Onifade v. Olayiwola & ors (1990) 7 NWLR (Pt. 161) 130 at 158; (1990) 1 SCNJ 10 at pages 22-23 and NFPA v. Alli (1992) 8 NWLR (Pt. 259) 279, before dismissing the issue.

In the later case in which this court allowed the appellant’s appeal in part and also al lowed the cross-appeal in part, thus remitting the case to the trial court with a direction to assess the appropriate damages in respect of machines based upon evidence before it (a case distinguishable from the instant one) it was held (per Ogwuegbu. J.S.C. in a majority decision where Nnaemeka-Agu, J.S.C. dissented) at pages 298-299, inter alia that

………….the courts below not having based their award on the value of the machines at the time of destruction, the appeal partially succeeds. It i s therefore ordered that the case be remitted to the trial court with a direction to assess the appropriate damages in respect of the machines based on the evidence before it………………

In the instant case, the respondents having established their case not only on a preponderance of evidence but as to quantum, the liability of the appellant could no longer be gainsaid.

Finally, on whether the affirmation by the court below of the damages awarded by the trial court to the respondents, arising out of the activities of the appellant in the Esiesi River and its neighbourhood, the respondents having produced unchallenged evidence to the breach of their customary rights in their being deprived of rents accruable from their tenants, the sum awarded which may not be said to be too low an estimate (as at the time of the award) nor too high or an excessive quantification, it was rightly awarded. See Balogun v. Labiran (1988)3 NWLR (Pt.80) 66 (1988) 1 NSCC 1050; Dumez v. Ogboli (1972) All NLR 241 at 253 and Obere v. Board of Management Eku Baptist Hospital (1978) 6-7 S.C. 15 It may be noteworthy to mention that due to inflation the judgment sum is reduced to a mere shadow of what such amount connoted in terms of purchasing power. Since the appellant led no evidence to controvert the respondent’s evidence at the trial court however and the court below affirmed the sum awarded to wit: N288,00.00, this court will be loath to interfere with it. See Shell B-P Development Company of Nigeria v. Pere-Cole & ors. (1978) 3 S.C. 183 at pp. 195-196.

Clearly the standard of proof required in establishing the amount of damages in a case such as the one in hand, namely a case where the evidence in support is unchallenged, the law is that the burden assumed by the plaintiff/respondents herein, is discharge upon a minimum of proof. See

1. Nwabuoku v..Ottih (1961) 2 SCNLR 232; (1961) 1 All NLR 487 at 490.
2. Odualaja v. Haddad (1973) 11 S.C. 357 at 364-365; (1973) 1 ANLR (Pt.2) 191.
3. Imana v. Robinson (1979) 3& 4 S.C. 1 at pp. 26.
4. Adejumo v. Ayantegbe (1989) 3 NWLR (Pt.110) 417 at 435.

Finally, the decisions of the two courts below being concurrent findings of fact, this court will be slow to disturb the appeal therefrom. The attitude of this court in this regard has been set out in several decided cases some of which are:

1. Ezeani v. Onwordi (1986) 4 NWLR (Pt. 33) 27
2. Western Steel Works r. Iron & Steel Workers (1987) 1 NWLR (Pt. 49) 284.
3. Balogun v. Amubikahun (1989) 3 NWLR (Pt.107) 18; and
4. Lokoyi v. Olojo (1983)2 SCNLR 127; (1983) 8 S.C. 61 at 68-73, to mention but a few.

The result of all have been saying is that I see no merit in the appeal and for the reasons I have given coupled with the fuller ones set out in the lead judgment of my learned brother, Adio, J.S.C. I will also dismiss this appeal with all the consequential orders set out therein.

Appeal Dismissed