ALHAJI YINUSA DAODU (T/A ALHAJI YINUSA DAODU & SONS) v NIGERIAN NATIONAL PETROLEUM CORPORATION AND 3 OTHERS (SC 220/1994) [1998] NGSC 2 (23 January 1998)

ISSUES

Whether an appellate court can rightly pronounce on an interlocutory order of a trial court which is not the subject of an appeal before it or whether it can rightly formulate issues arising from a dismissed appeal in the determination of a separate appeal in the same case.

Whether the appellant suffered wrong and proved special damages as required by law.

Whether there was conclusive evidence on record to support the liability of the first respondent

FACTS

The appellant owned a garage in Idimhu, Agege, in Alimosho Local Government Area of Lagos State. In April 1982 the appellant discovered that the access road to his place of business had been blocked by a trench that had been dug across it. He complained to the first respondent and in October 1982, six months later, access was restored.

The appellant averred that he had suffered considerable damage during the closure of the access road and instituted action against the first respondent, claiming N1,250,000 as special and general damages.

The first respondent (defendant then) joined the second and third respondents as co-defendants to the dispute, alleging that these two parties had actually been responsible for the digging of the trench. The third respondent, in turn, joined the fourth respondent, claiming that it had been sub-contracted by the latter.

The trial court dismissed the appellant's claim against the first and fourth respondents but awarded N1, 175,200 as special damages jointly and severally against the second and third respondents.

Dissatisfied with the decision of the trial court, the second and third respondents independently appealed to the Court of Appeal against this decision, while the appellant cross-appealed, asking for general damages to be awarded to him against the second and third respondents.

The appeal by the third respondent was allowed, the cross-appeal by the appellant was dismissed. The appeal by the second respondent, who failed to file its brief of argument in accordance with the rules of court was also dismissed. The Court ruled that the appellant's evidence was unsatisfactory and insufficient to prove special damages.

There was a further appeal by the appellant to the Supreme Court.

Amongst other issues, the appellant submitted that the refusal of the trial court Judge to visit the locus in quo had no bearing on the grounds for appeal before the Court of Appeal and that the latter court had been wrong in formulating that particular issue. It was wrong for the Court of Appeal, the appellant submitted, to have considered an interlocutory order made on the visit in the trial court, when it did not form part of the appeal before it. The appellant failed to establish that as a private individual, he suffered over and above what might be suffered by the general public through the obstruction of the highway.

The appeal was dismissed.

HELD (Unanimously dismissing the appeal)

1.      On whether the Court of Appeal had erred in its reference to the failure of the Judge in the trial court to visit the locus in quo

The Court of Appeal had merely referred to the fact that a visit to the locus in quo would have been of immense assistance to the trial court in its assessment of whether the trench had really caused an obstruction of such immense proportions, as alleged by the appellant, to have caused the appellant's business to suffer. Ogwuegbu, JSC, at page 220

The Court of Appeal was assessing the appellant's evidence as a whole in order to decide whether he, as a private individual, had in fact suffered over and above what was possibly suffered by the general public. No new issue had thus been formulated by the Court of Appeal. Ogwuegbu, JSC, at page 220.

2.      On whether the appellant, in an action based on public nuisance, had proved to have suffered damage over and above that suffered by the general public

As there was no acceptable evidence against the second, third and fourth respondents, it remained for the appellant to prove not only that he had suffered damages over and above that possibly suffered by the public, but that it was the first respondent who had caused such damage. The first respondent's oil pipes had been exposed to the elements by the digging of the trench and in order to protect them, it had erected a bar at the trench. The first respondent had from the outset claimed that it had not been responsible for the digging of the trench and the appellant failed to show that it was the bar erected by the first respondent, rather than the trench itself, which obstructed the access to his business. The appellant failed to discharge the onus in respect of either of the two issues he had to prove. Ogwuegbu, JSC, at page 220.

For the appellant: Segun Onakoyo, Esq.

For the first respondent: O. S. Sowemimo, Esq.

For the third respondent: A. Kester, Esq.

The following cases were referred to in this judgment:

Nigeria

Adeniji & others v Adeniji & others (1972) All NLR 301

Adeshina v Lemonu (1965) All NLR 245

Aromire & others v Awoyemi (1972) 2 SC 1

Bamgboye & others v Olanrewaju (1991) 4 NWLR (Part 184) 132

Elias v Omobare (1982) 5 SC 25

Graham v Esamai (1984) 11 SC 123

Kaiyaoja v Egunla (1974) 2 SC 55

Lewis & Peat (NRI) Ltd v Akhimien (1976) 7 SC 157

Mogaji & others v Odofin & others (1978) 4 SC 91

Ogbu v Urum (1981) All NLR 324

Oke Bola & others v Molake (1975) 12 SC 61

Olowu v Olowu (1985) 2 NWLR (Part 1) 272

Foreign

Boyce v Paddington Borough Council (1906) AC 1

The following rule was referred to in this judgment:

Nigeria

Court of Appeal Rules: Order 6 rule 10

Ogwuegbu, JSC (Delivered The Leading Judgment):- This appeal is brought by the plaintiff against the judgment of the Court of Appeal, Lagos Division delivered on 28 April, 1994. The plaintiff's claim as endorsed in his amended writ of summons reads:-

"The plaintiff's claim jointly and severally against the defendants for the sum of N1,250,000 (one million, two hundred and fifty thousand Naira) being general and special damages suffered by the plaintiff when the defendants dug a trench blocking the access road to the plaintiff's place of business at Ono-Oko Oponu Street, Idimu, Agege, in Alimosho Local Government Area of Lagos State."

In his amended Statement of Claim, the plaintiff averred that on 7 April 1982, he discovered that the only access road leading to his motor garage at Ono-Oko Oponu Street, Idimu had been blocked by a trench constructed by the first defendant and this made it impossible for his lorries to park in the garage or move in and out of the said garage. He protested to the first defendant and informed it that at the time the road was blocked, he had ten of his commercial vehicles in the garage. It was further averred that the obstruction was only removed on 3 October 1982 by the first defendant. The Nigerian National Petroleum Corporation was the sole defendant. The Nigerian National Petroleum Corporation filed its Statement of Defence and mentioned the second and third defendants as the Companies responsible for the digging of the trench which also exposed its oil pipe-lines.

Thereupon, the plaintiff by Motion on Notice caused the second and third defendants to be joined as co-defendants. The second defendant in its Statement of Defence alleged that it was awarded a contract by Messrs. Degremount (Nigeria) Ltd (third defendants) who were main contractors of the Federal Housing Authority for sewage treatment and affluent disposal, that where it carried out the excavation work was no where near the vicinity of Ono-Oko Oponu Street, Idimu and that it did not dig any trench on the road as alleged. The third defendant joined the Federal Housing Authority who awarded the contract to it as the fourth defendant. All these caused the plaintiff to amend and further amend his writ of summons and the statement of claim. He claimed jointly and severally from the four defendants.

At the close of pleadings, the case proceeded to trial. At the conclusion of the evidence and after the addresses of Counsel, the learned trial judge in a considered judgment dismissed the claim against the first and the fourth defendants. He found the second and third defendants jointly and severally liable in the sum of N1,175,200 as special damages.

Dissatisfied with the decision, the second and third defendants separately appealed to the Court of Appeal, Lagos Division. The plaintiff cross-appealed. The second and third defendants prayed the court below to set aside the judgment of the High Court and enter judgment for each of them. The plaintiff prayed that he be awarded general damages against the second and third defendants or in the alternative, to set aside the judgment of the High Court and enter judgment in his favour against the defendants.

The Court of Appeal heard the appeal and in a reserved judgment allowed the appeal of the third defendant and dismissed the claim of the plaintiff. The appeal of the second defendant was dismissed pursuant to Order 6, rule 10 of the Court of Appeal Rules, the second appellant having failed to file its brief of argument as required by the rules of that court. The cross-appeal of the plaintiff was dismissed. He has further appealed to this Court. He will from now be referred to as the appellant in this judgment and the defendants will be referred to as the respondents.

Briefs of argument were filed and the following three issues were identified by the appellant for determination by the court:-

"(1)    Whether an appellate court can rightly pronounce on an interlocutory order of a trial court which is not subject of appeal before it or rightly formulate issues arising from a dismissed appeal in the determination of a separate appeal in the same case. (Grounds 1, 2 and 3).

(2)     Whether the appellant suffered wrong and proved special damages as required by law. (Grounds 4 and 7).

(3)     Whether there was conclusive evidence on record to support the liability of the first defendant/respondent (Grounds 5 and 6)."

In its own brief, the first respondent formulated two issues as arising for determination:-

"(1)    Were the learned Justices of the Court of Appeal right in dismissing the cross-appeal on the grounds that the evidence led by the plaintiff/appellant in support of its claims was most unsatisfactory.

(2)     Were the learned Justices of the Court of Appeal right in holding that the plaintiff/appellant had not sufficiently established its claim for special damages."

The third respondent on its part identified the following issues as arising for determination in the appeal, namely:-

"(i) The action, being one for damages for alleged public nuisance, whether the Learned Justices of the Court of Appeal were right in holding that the plaintiff/appellant had failed to prove that he suffered damage over and above the general public. (Grounds 1, 2 and 3).

(ii) Whether Learned Justices of the Court of Appeal were right in allowing the substantive appeal of the third defendant/respondent on the ground that on the preponderance of evidence adduced before the trial court no case was established against the said third defendant, the evidence adduced on behalf of the plaintiff/appellant being at variance with their pleadings, contradictory, challenged and contradicted by the defence. (Grounds 5 and 6).

(iii) Whether Learned Justices of the Court of Appeal were right in holding that the plaintiff/appellant had not established its claim for special damages. (Grounds 4 and 7)".

The first and third defendants filed briefs. The other defendants did not.

Apart from the first issue identified by the appellant herein which was not reflected in the issues identified by the first and third respondents, the other issues formulated by the parties overlap. In the circumstance, I will determine the appeal on the issues formulated by the appellant with necessary emphasis on the questions raised by the first and third respondents where appropriate.

As to the issue of visit to the locus in quo, the learned Counsel for the appellant submitted in the appellant's brief that it was the Court of Appeal that formulated that issue which had no bearing with the grounds of appeal filed by the third defendants. It was further submitted that the court below should have confined itself to the issues formulated by the parties which arose from the grounds of appeal filed and should not have ventured to raise issues for the parties. The following cases were referred to the court. Bamgboye & others v Olanrewaju (1991) 4 NWLR (Part 184) 132 at 144, Adeniji & others v Adeniji & others (1972) All NLR 301 at 307, Oke Bola & others v Molake (1975) 12 SC 61 at 71 and Graham v Esamai (1984) 11 SC 123.

It was further submitted on behalf of the appellant that the refusal of the learned trial Judge to visit the locus in quo was not canvassed by the third defendant/appellant in the court below and that it was wrong for that court to have considered an interlocutory order made by the learned trial Judge on the visit when there was no appeal on it. Continuing on this issue, the learned appellant's Counsel submitted that where an appellate court formulates issues not raised by the parties as in this case or examines complaints in a dismissed appeal and on which no brief was filed, the result is a denial of justice to the other party - the appellant. Reliance was placed on the case of Ogbu v Urum (1981) All NLR 324 at 331.

In their reply to the appellant's first issue, it was contended by the first and third respondents in their respective briefs of argument that it was in the course of highlighting the unsatisfactory nature of the plaintiff/appellant's case that the court below was compelled to observe that given the conflicting nature of the evidence before the trial court, there was at that stage a compelling need to visit the locus in quo and that such a visit would have provided the trial court with a first hand knowledge of the exact situation of the excavation work and assisted it in properly evaluating the evidence of the parties.

I must first point out that the court below did not formulate any issue touching on the refusal of the learned trial Judge to visit the locus in quo as erroneously contended by the learned appellant's Counsel. What happened was that the court below in the course of its assessment of the evidence adduced by the plaintiff in relation to what he should have proved in order to succeed in an action for public nuisance, the court below had to draw attention to the fact that a visit to the locus in quo would have been of immense assistance to the learned trial Judge, more so, when the second defendant prayed the court to do so.

The court below per Pats-Acholonu, JCA stated as follows:-

"Against their story of immobility caused by complete blockage, the defendants/appellants said that in fact they created a diversion. The important thing here is whether that trench really and truly (sic) caused an obstruction of such magnitude that the plaintiff's business suffered gravely . . . The necessary inference from this application for the court to go to the place in contention is to ascertain how and where the trench was dug and whether it really could have hindered mobility of the plaintiff's vehicles as to render them useless from the point of view of the pleadings and evidence of the plaintiff and his cohorts. It will equally enable him no doubt to see whether there is infact any diversion as the appellants claimed."

On the same issue, Uwaifo JCA in his concurring judgment said:-

"As the case was constituted, therefore, at the close of the plaintiff's case, no prima facie case was made against the second, third and fourth defendants or at all. The need to hear the case of the said defendants did not then arise and the claim should have been dismissed as against them: (See Aromire v Awoyemi (1972) 2 SC 1 at 10-11). To make the plaintiff's case even worse, PW3 said in re-examination: 'There is another road leading to our Garage apart from Ono-Oko Oponu Street'. The plaintiff himself however said Ono-Oko Oponu Street was the only road leading to his place of business. The second defendant later moved the court to visit the locus in quo for the purpose of assessing the evidence led by the plaintiff that his vehicles were immobilised as a result of the blockade of Ono-Oko Oponu Street. This was, quite surprisingly, opposed by the plaintiff and the trial court agreed and saw no need for a visit. I think a useful opportunity was missed."

From the above excerpts, it is clear that the court below was considering the entire evidence adduced by the appellant and his witnesses in order to determine whether he, as a private individual had suffered over and above what might have been suffered by the general public through the obstruction of the highway, otherwise, such an action would lie at the suit of the Attorney-General by way of relator action.

An obstruction of a publi