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Chief R. O. A. Akinjide – for Appellants
Dr. Odje – for Respondents
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]
Tort – Nuisance – Unlawful damage caused – Blocking of Waterway – Compensation paid – Public Nuisance – Proof of peculiar circumstances or damage suffered – Damages. ;
SOWEMIMO, J.S.C. (Delivering the Judgment of the Court):
In a Suit PHC/45/73, tried at the Rivers State High Court, holden at Port Harcourt, the Plaintiffs claim as set out in paragraph 30 of their Statement of claim reads inter alia,–
‘Whereof the Plaintiffs claim:
Jointly and severally against the defendants the sum of £906,278,(Nine hundred and six thousand, two hundred and seventy-eight pounds) being special and general damages peculiar to the Plaintiffs for nuisance and/or ‘unlawful dam-ages caused by the defendants by deliberately and unlawfully or negligently blockading for about 2 months from 8th December, 1971 to 14th February, 1972 the Kolo Creek, their water-way, which passed and still passes through the Plaintiffs’ farmlands and villages in Ogbia Division”.
After the above followed a detailed statement of special damages as “per ex-pert report” and general damages for trespass, nuisance and deprivation of right of passing and repassing and navigation. There was also a claim for mandatory injunction.
In their Statement of claim, the Plaintiffs claimed to represent the Ogbia Community, the riparian owners of the navigable tidal waterway known as the Kolo Creek, which passes through the Plaintiffs’ land. It was further averred that ‘The Kolo Creek waterway is of peculiar and special use and advantage o the Plaintiffs for navigating barges, river crafts, canoes on a large commercial le; for fishing on a large commercial scale; for agriculture, drinking and other commercial and domestic purposes”.
The 1st defendant company denied that the Plaintiffs brought the claim for and on behalf of the Ogbia Community, and that they are not the riparian owners of Kolo Creek. The 1st defendant company further averred thus:-
“4. Paragraphs 4-7 of the amended Statement are denied. The Kolo Creek has always been a public waterway or watercourse and/or Creek dedicated to public use and its maintenance and/or upkeep is the responsibility of the Government. The 1st defendant will at the trial rely on survey plan. No. E-2504/59 and E-2504/97 and Notice to Tender inserted and published by the Rivers State Government in the issue of the Nigerian Star for September 22, 1973.
“5. The 1st defendant in answer to paragraph 8 of the amended Statement of Claim denies that the 1st defendant wrongfully erected a blockade across the Kolo Creek Waterway creating thereby terrible and unprecedented nuisance by obstruction and that the nuisance and blockade continued till 14th February, 1972.
“6. In further answer to paragraph 8 of the amended Statement of Claim the 1st defendant says that the necessary disturbance to the Kolo Creek Waterway for the purpose of the construction of a bailey bridge was with the prior knowledge, consent and approval of the Imiringi Community who had agreed to accept the sum of £1,000 in full and final satisfaction of any claim arising from the said disturbance. The written agreement dated 8th December 1971 signed by the 1st plaintiff and one Innocent Afaghe for Imiringi Community will be founded upon. The 1st defendant will also rely on the letter No. OCC.259/9 dated 20th December 1971 addressed to the 1st defendant by the Sole Authority, Ogbia Interim Local Government Council calling for the construction of a bailey bridge.”
“12 Wherefore the 1st defendant will at the trial of this action raise all legal and equitable defences open to it, more particularly:-
(1) that the claim for a mandatory injunction be dismissed on the admission by the plaintiffs that the so-called or alleged nuisance was abated before the institution of action.
(2) that the plaintiffs’ claim be dismissed in that the plaintiffs do not have the same interest in the subject matter of the suit;
(a) the parcel of land abutting on the bailey bridge aforesaid forms but part of the land acquired from the members of the Imiringi Community by the 1st defendant by virtue of the 1st defendant’s Oil Mining Lease No. 28 registered as No. 58 at Page 58 in Volume 228 of the Lands Registry in the office at Enugu on which the 1st defendant relies for the construction of the said bailey bridge, which is the basis of the plaintiffs’ action;
(b) there is now pending in this Honourable Court Suit No. PHC/13/1971 between the Otuasega people and Imiringi Community, the subject matter of which said suit being a parcel of land in Ogbia area and/or Division in the neighbourhood of the Kolo Creek”.
After a review of the evidence before him, the learned trial Judge, Holden C.J., dismissed the Plaintiffs’ claim thus:-
‘That is the evidence for the two sides and I have no hesitation in accepting that of the Defendants as the truth. The one witness called by Plaintiffs as an expert may well be one in his particular field of valuation, but he was a very unimpressive witness on the facts of whether or not there was any flooding. He is supposed to be a Surveyor, yet he did not take a single measurement. I am satisfied that he lied deliberately about the pipes, which I find as a fact were never at any time covered by water or blocked in any way. The first witness for Plaintiffs was no better, for he too lied deliberately about the pipes. As to the flooding, P.W.3 was careful to say very little which could be considered direct evidence. He referred to “our’ investigations and “our” survey all the time, and never committed himself to saying he personally saw anything. Whilst his evidence is equally untrue by implication, it might not be considered direct lies. As a result of this finding of fact that there was no flooding, I do not need to consider the “Report” Exhibit 8 at all. I will confine myself to saying that it was as fine a piece of fiction as I have read for a long time, utterly dishonest and wildly exaggerated. Even the arithmetic was not right in a number of places.
As there was no flooding, there can be no award of special damages under any of the seven heads in the Claim which add up to £906,278. The riparian owners are shown to be the person of Imiringi, who agreed quite voluntarily to allow the dam to be built as a temporary expedient, so there is no question of any trespass. Nuisance and deprivation of the right of passing and repassing and navigation are the same thing, and such as they may have been are covered by the sum which the people of Imiringi agreed to accept. There being no evidence that any other people were in anyway affected by the dam, it remains only for the people of Imiringi to take the agreed compensation. This does not of course fall under any of the heads of this Suit, in which they are but part of a far larger number of people, presenting quite different claims arising out of quite separate and different rights. The Plaintiffs’ claim is dismissed entirely.” (Italics ours).
Learned Counsel for the Plaintiffs, in arguing the appeal before us, agreed that the nuisance complained of is a public nuisance. He however argued that the Plaintiffs comprised of 42 villages which were spread although miles apart, in different sites along the Kolo Creek, and that therefore they ought at least to have been awarded “general damages under the breach of the provisions of the Petroleum (Drilling and Production) Regulation 1969.” This argument was based on what was stated in a ground of appeal that ’the Defence admitted in evidence that the blockage caused the Plaintiffs Inconvenience.,, The learned Chief Judge on the Issue of the claim for general damages had this to say in his judgment:-
‘Turning to the claims for general damages, these. lie under three headings, namely trespass, and deprivation of the right of passing and repassing and navigation. Consent of the riparian owners, the people of Imiringi, has been proved, so there was no trespass. The “nuisance” and “deprivation of the right of passing and repassing and navigation” are one and the same thing, so cannot be the subject of two separate claims. The waterway was clearly a public waterway, so its obstruction is a public nuisance. Without proof of damage over and above that suffered by the general public, the Plaintiffs cannot succeed in any claim for damages. This Is an attempt by a section of the general public (and quite a large section too, if the figures in the Report Exhibit 8 are true) to sue in respect of losses suffered by them generally, and in my view it cannot succeed. These losses, if in fact they were suffered were suffered individually and therefore must come under the heading of Special Damages, where each individual must plead and prove his or her special individual loss. There has been no attempt to do this, so the whole claim must in my view fail.”
‘The second short answer comes through the submission in his address by Dr. Odje that as his clients were lawfully in possession by virtue of an Oil Mining Lease covering the whole area and more, they cannot be expected to operate outside the terms of the Lease as governed by the Minerals Act, the Petroleum Decree No. 51/69, the Petroleum (Drilling and Production) Regulations 1969, and any compensation must be as laid down by those Statutes. He referred the Court to the various sections showing how “adequate compensation” is to be arrived at “by agreement”. He submitted that such compensation is payable only in respect of damage causing diminution of the value of the land, which brings this matter straight within the ambit of the decision in Argyle Motors (Birkenhead) Ltd. vs. Birkenhead Corporation (1973) 1 All E. R. 866 particularly at pp. 876 and 877.
…..’The.question.appears to. me. to. be ruled by Ss. 77. Minerals Act Cap. 121). S.77 in the relevant parts, reads:-
This section limits compensation to that rendered fair and reasonable as a result of disturbance of the surface rights or damage to the surface of the land, with no mention of any resultant losses. This Is in my view very much the same as the kind of limitation Imposed by S.68 of the Lands Clauses Consolidated Act, 1845 referred to in the case of Argyle Motors, where it was held that compensation under that Section was restricted to injury to land or an Interest in land. I am strengthened in this view by the wording of S. 19 of the Oil Pipelines Act, (Cap. 145), which refers to damage done to buildings, crops, or trees , and losses in value of the land or Interests in land, Subsection (3) laying down the principles on which the Court shall assess such loss in value. Thus in my view the Courts cannot entertain such claims as those at present before me, as they do not arise out of a loss in value of the or the interest in the land:’.
Learned Counsel for the appellants has not complained on the above portions of the judgment of the Chief Judge, which we thought should have formed the basis of any complaint on the argument canvassed before us. We are quite satisfied that the learned Chief Judge expressed the correct statement of the law, and on the findings of facts as found by him, we do not see any merit on the ground of appeal canvassed before us. We may mention that the claim for general damages as pleaded by the Plaintiffs was not on the basis of the law which he cited in his ground of appeal and upon which he asked us to consider the claim for general damages. It is enough to say, as this court has on many occasions in the past stated, that parties are bound by the triable issues raised in their pleadings and on which a judgment had been given.
We are satisfied that the judgment of the learned Chief Judge both on the facts as found by him, and his application of the law to those facts, are correct. The appeal fails and it is hereby dismissed. The Plaintiffs, who are appellants before us, will pay costs assessed at 150 Naira to the defendants, the respondents to this appeal. This shall be the order of this Court.