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16TH JUNE, 1978.

SUIT NO. SC 374/1976

3PLR/1978/7  (SC)



(1978) LPELR-239(SC)





ESO,  J.S.C.



TORTS – Damage to personal property – Claim for compensation based on agreement between claimant and tortfeasor.

PRACTICE AND PROCEDURE – Trial Judge – Failure to make proper evaluation of evidence – Effect – Failure to take advantage of having seen witnesses testify Effect.



  1. J. Okpoko, for the Appellant.
  2. A. Asemota, for the Respondent.


ESO, J.S.C. (Delivering the Judgment of the Court):      In the High Court of the Midwestern State of Nigeria (now Bendel State) holden at Sapele before Ogbobine, J., the plaintiff who is the Appellant in this court claimed as follows:

…. the sum of N1,780.00 (One thousand, seven hundred and eighty naira) being compensation which the defendant negotiated and agreed to pay plain-tiff on the 22nd day of November, 1972 for the damage/loss of plaintiff’s pigs and piggies…..”


The learned trial Judge ordered pleadings which were duly filed and the pertinent paragraph of the statement of claim read as follows:

“3.     In 1964, plaintiff established a piggery farm in Mereje. The farm is situated on a small island just off the Mereje coast in Okpe clan, Western Urhobo Division within the jurisdiction of this Honourable Court. On this island, the plaintiff built two houses which are used for the purpose of the piggery business.

  1. Before the incidents giving rise to this claim, the plaintiff ran his piggery and farm on commercial basis and maintained himself and his family with the proceeds of the sales of pigs produced on the farm.
  2. In or about the month of August, 1972, the defendant’s representatives came to the said piggery and saw plaintiff, his workmen and (sic) the pigs and piggys on the island. Plaintiff warned them to avoid the island in their operations as the pigs and piggys cannot stand the shock of the thunderous blasts involved in their operations. Defendant’s representatives agreed and went away. They subsequently returned to the island where plaintiff again warned them of the dangers to the pigs and piggys which their shooting operations may involve.
  3. Thereafter, Defendant’s workmen entered into the piggery and carried out their operations on the small island with at least nine thunderous blasts fired in quick succession. These sudden thunderous blasts frightened the pigs and piggys and as a result many of the piggys died of shock, some of the pigs and piggys in the confusion resulting from shock ran into the water and perished while other pigs carrying young ones had them prematurely discharged.
  4. The defendant’s workmen saw the adverse effects of the defendant’s operations on plaintiff’s piggery. They undertook to bring these facts to defend-ant so that plaintiff is paid his compensation without delay.
  5. Plaintiff demanded payment of the said compensation and upon plaintiff’s instructions, his solicitor wrote to the defendant claiming payment of compensation for the damage caused in the said piggery. Plaintiff will rely on his solicitors said letter reference No. TJO/M.C.-GA/72/99.Vol.4 dated the 26th day of September, 1972.
  6. On the 22nd day of November, 1972, plaintiff and his solicitor called at the defendant’s Warri Base Camp. The defendant was represented by one Mr. Ellis, its Landsman – Mr. Urhokor and a representative of Safrap (Nigeria) Limited. The meeting was presided over by Mr. Ibagere of the Ministry of Lands and Housing, Benin City who the defendant invited to preside over the negotiation meeting as an independent Chairman.
  7. At this negotiation meeting, plaintiff gave account of the number of pigs and piggys which died as a result of the defendant’s shooting operations – This account was confirmed to a material extent by defendant’s Landsman, Mr. Urhokor. After prolonged discussion, it was agreed by both sides that plain-tiff’s claim be settled as follows:

(a) Compensation for 70 mature adult

pigs at N14.00 each –                         N980.00

(b) Compensation for 100 small young

pigs at N8.00 each –                           800.00

N1,780 00

Thereafter the meeting rose and plaintiff was asked to go home and watt for the cheque for the money.”


It is to be observed that in both the writ of summons and the Statement of Claim, the plaintiff based his claim on an agreement arrived at after a negotiation between the plaintiff and the defendant/company.


The defendant/company joined issue on this question of agreement by negotiation and said in their Statement of Defence –

“15.   The defendant denies paragraph 16 of the statement of claim that it agreed to pay compensation for 70 adult pigs and 100 small pigs, as its representative saw only one dead pig, and the cause of death was unknown.

x x x x x x x x x x x x x x x

  1. The defendant admits paragraph 19 of the statement of claim, but avers that the defendant refused to pay, because there was no agreement and be-cause, plaintiff did not establish any damage suffered by him for which he should be paid compensation.”


To prove the claim, the plaintiff gave evidence and said that after he had ob-served that there was damage done to his pigs, he instructed his solicitor to write the defendant/company. On receipt of the letter from the solicitor, the company promised to send their Damage Claims Clerk to assess the damages. One Young Urhokor came to assess the damages after which plaintiff was asked to come to Warri to negotiate. There were two visits and during the second visit, which was on the invitation of the defendant/company, an agreement was reached and the defendant/company promised to pay plaintiff a sum of N1,780.00 (One thousand, Seven hundred and Eighty naira). On this point, he said –

…….. “an agreement was reached after the discussion and the defendants promised to pay £890 (N1,780.00). This was not reduced into writing, and no document was signed to that effect. They agreed to pay £4 each for the smaller ones which numbered one hundred. I have forgotten the number of the big ones, although they agreed to pay £:6 (N12) for each of them. I accepted the total amount of £890 (N1780) which they agreed to pay as compensation for the pigs.”


Plaintiff went on and said that the defendants failed to pay, and as a result of this, he went again Into their office. Later, he got a letter from the Damage Claims Clerk, which letter was admitted in evidence as Exhibit “E”. Exh. “E” reads as follows:-

“Please, Mr. Godwin Gbeyegbe I want you to come on the 15th of this month with Dickson so as to ask for your money. Because I will be around in the morning.


Only one witness gave evidence on behalf of the defendant/company and that was Young Urhokor who admitted he wrote Exhibit “E”. He was also the Damage Claims Clerk of the defendant/company. He said

“After my investigation I made a report and sent it to my manager. On November 22nd 1972 we called a meeting to discuss claims by different persons against the company. Among those present were P.W.2 and the Chief Lands-man from Elf Company, Mr. Anthony Uchegbulam, my manager, Mr. Brown Ellis, the claimant’s solicitor, Mr. T. J. Okpoko, and the plaintiff himself. Other claimants were also there.

At the meeting after dealing with claims from others which we considered genuine we then began to treat the case of the plaintiff. It was decided that the plaintiff’s claim was false as I did not see the number of pigs mentioned by him in the bush. The distance between his huts and our line was about 300 yards and the shooting on that lines could not do any damage to his pigs.

Those with genuine claims were later paid their compensation. About March 4th 1973, my manager sent me again to go back to Mereje to reinvestigate the same claim. This was sequel to the letter from plaintiff’s solicitor. I conducted a second investigation In company of plaintiff. When we got to the island, the whole place was bushy and I saw no live pigs on the island. All I saw was the same skeleton of the dead pig in the same pit. I sent the same report to my manager.

It was never agreed that a total sum of N1,780 be paid to the plaintiff for the pigs. We did not destroy plaintiff’s pigs at all.”

During cross-examination, he said that both the genuine and the fake claims were sent to Lagos. He admitted that Exh. “G” which was written by one Ibagere who was the representative of the Ministry of Lands and Housing and who gave evidence for the plaintiff contained the name of the plaintiff as one who was to be paid N1,780. There were, in fact, eight claimants (including the plaintiff) on that list. The plaintiff was the only one of the eight claimants not paid. Another claim-ant, one Dickson Osuma whose claim, witness said, was not genuine was also paid the amount specified on the exhibit.


The learned trial judge, before dismissing the plaintiff’s claim, directed his mind to the issue for determination in the case. He said –

‘The defendant has admitted that a reconciliation meeting was actually held, but added that it was not specifically to discuss the plaintiffs claim as claims by other claimants were also mentioned and discussed at that meeting. The issue which really calls for determination in this action after the amendment Is whether or not at the said meeting the defendant’s representatives agreed to pay N1780 to the plaintiff.”

After this direction, (which we consider to be a correct direction) the learned trial judge referred to Exh. “E” which we had referred to, (supra) that is, the letter admittedly written by Mr. Urhokor to the plaintiff asking him to come on the 15th of March to ask for his money. He rejected the exhibit on the ground that he had no faith in it, and held that the evidence before him did not convince him that the defendant/company agreed to pay the compensation to the plaintiff.

Against this decision, the plaintiff has appealed to this court and his grounds of appeal complain mainly against the failure of the learned trial judge to take ad-vantage of the witnesses before him and also no proper evaluation of the evidence before him.


Learned counsel for the appellant, Mr. Okpoko, in pursuance of the grounds of appeal, submitted that the issue in this case was very narrow as the claim was based on an agreement for payment by the defendant/company of a negotiated amount. He referred to the evidence of the plaintiff, that of Ibagere, the Ministry official, who was chairman at the negotiation at the instance of the defendant/company and also to some of the exhibits in the case, that is, Exhs. “E” (letter from Urhokor), “G” (letter from Ibagere to the defendant) and “J” (letter from the defend-ant/company to the Ministry of Lands and Housing that they had no authority to pay the plaintiff) and submitted that upon this evidence, the plaintiff proved his case. He contended that the learned trial judge drew no inference whatsoever from Exhs. “G” and “J” while he gave wrong reasons for his summary rejection of Exh. “E”.


Mr. Asemota, learned counsel for the respondent, while conceding that the learned trial judge wandered a little bit out of the case to issues not before him, submitted that there was sufficient evidence before the learned trial judge for the conclusion at which he arrived.


We agree with the learned trial judge and the learned counsel for the appellant in this case that the only issue before the court was whether or not there was an agreement between the parties arising out of negotiation to pay the plaintiff the amount claimed. Both parties agreed that there was a meeting and indeed, the learned trial judge found accordingly. What was outstanding therefore was whether at that meeting, the defendant’s representative, Urhokor, agreed to pay N1780.00 to the plaintiff. Apart from the evidence of the plaintiff himself, there was Exhibit “E” which Urhokor admitted to have written. He gave no explanation whatsoever for writing this letter which invited the plaintiff to come for his money. Yet the learned trial judge gave four reasons for rejecting the exhibit. He held:

(i)      that the exhibit included the name of another man, one Dickson, and for that reason, he had doubt in his mind as to whether the money to be claimed did not belong to both plaintiff and Dickson.


There was no evidence before the learned trial judge to support this finding. Neither Urhokor, the writer of the letter, nor anyone else made this suggestion. In any event, Urhokor was the only witness for the defence. In so far as Dickson was concerned, the only evidence about him was that though Urhokor regarded his claim as not genuine, yet his claim was paid.

(ii)     that as the plaintiff put up other claims in his capacity as the Secretary of Mereje Community to the defendant/company for the property of the Community which was destroyed by the defendant/company, Exh. “E” might have contained also that claim.

Again, there was no evidence whatsoever upon which this finding could have been made.

(iii)    that there was no evidence that Urhokor had authority to bind the company. Urhokor did not give this evidence, nor is there any other evidence from the defendant/company that Urhokor was not competent to bind them. (iv)that he had no faith in Exh. “E”.

The learned trial judge gave no reason for this lack of faith apart from those we have referred to.

In regard to Exh. “G”, this was a letter written by Ibagere to the defendant/company, it reads:-

“Settlement of Claims against SSL Party 611 on 22nd November, 1972

I am directed to refer to the meeting I had with your Mr. B. Ellis and a group of lawyers on the 22nd November, 1972 during which the following claims were settled and to request you to inform this Ministry whether payment has been ……. (Nigeria) Limited that authority has been given to SSL to make payment please:-


(a) Obodo Community                                 N800.00                (£400)

(b) Festus Futughe                                                N300.00                (£150)

(c) Dickson Osuma – (Grave)                       N1200.00              (£600)

(d) Godwin Agbeyegbe’s Piggery                 N1780.00              (£890)

(e) William Esebiebi                                     N700.00                (£350)

(f) Madamedor Akpah                                  N200.00                (£100)

(g) Oreko Ashe                                            N60.00                  (£ 30)

(h) Isaac Etu                                               N120.00                (£ 60)

Please treat as urgent.

(Sgd.) (G. F. Ibagere),

for Permanent Secretary,

Ministry of Lands and Housing.”


Now, the learned trial judge had attacked the bona fides of Ibagere for writing this letter. He based his attack on two letters. The first was Exh. “K” which was a letter written also by Mr. Ibagere and the second Exh. “L”. As Exh. “L” was not in evidence, the learned trial judge was in serious error to have relied on it. We would therefore concern ourselves with Exh. V’ and see whether the attack on the bona fides of Urhokor was, justified. Exhibit “K” reads –

“Payment of compensation to William Esebiebi and Godwin Agbeyegbe

I refer to my letter No. L116/99/Nol.ll/584 of 19th March, 1973 addressed to the operations supervisor, S.S.L. Warri a copy of which was forwarded to you and to inform you that the operations supervisor – Mr. Allan Berger wrote to the Ministry on 25th March, 1973, that he had paid everyone except for Godwin Agbeyegbe’s piggery for which he had not got instruction to pay.

  1. The bearer Mr. William Esebiebi, has come to complain that Mr. Cheshire who took over from Mr. Berger would like to get a note from you, before he is paid his (£350) N700.00 as it was discovered that he had not been paid.
  2. You told me that authority has been given for all amounts agreed during the meeting of 22nd November 1972. I shall be grateful therefore if you can send a note through the bearer to Mr. Cheshire to pay Mr. William Esebie bl’s £350 (N700.00) and Godwin Agbeyegbe’s £890 (1780.00) immediately. Please let me know the action taken.

Yours. (Sgd) O.P. Ibagere – F.P.S.”


The learned trial judge said that when one considered this letter and Exhibit “K” (which was not in evidence) it was difficult to resist the conclusion that the interest shown by Ibagere “went beyond the margin of official duties… “ It was for this reason that he held that the quality of Ibagere’s evidence was seriously discredited. In our view, there is nothing in Exh. “K” to warrant the conclusion arrived at by the learned trial judge that the interest shown by Ibagere went beyond the margin of his official duties. There is no evidence or suggestion whatsoever from anyone impugning the integrity of Ibagere. It is most unfortunate that the learned trial judge should make such remarks on this official without any evidence whatsoever in sup-port of the remarks.


We take the view that the evidence before the trial judge was sufficient proof of the plaintiff’s case and what learned counsel for the respondent termed as ‘Wandering a little bit out of the case” is, in our view, a serious lapse on the part of the learned trial judge. It is our considered view that the learned trial judge did not take adequate advantage of the opportunity of having the witnesses before him. The plaintiff claimed that the defendant had agreed at a negotiation that the sum of N1780.00 would be paid to him. He gave evidence in regard to this. He also tendered Exh. “E” which was a letter written by the representative of the defendant/company who was present at the negotiation, inviting him to collect his money. The evidence of Mr. Ibagere amply supports the evidence of the plaintiff that an agreement was arrived at between the parties for payment of the sum of N1780.00. Mr. Ibagere was the chairman at the meeting where this negotiation took place and the evidence before the Court was that the meeting was held at the instance of the defendant/company.


This appeal must succeed and it is hereby allowed. The judgment of Ogbobine, J., in Suit No. S/27/73 dated 26th September 1975 is hereby set aside. We also set aside his order as to costs. In its place is entered judgment for the plaintiff in the sum of N1780.00. The appellant is awarded N380.00 being costs in this Court. Appellant is also entitled to the costs in the High Court which we assess at N100.00.

Appeal allowed.


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