CASE SUMMARY OF:
Elf Nigeria Ltd v. Opere Sillo & Anor (1994) - SC
by NSA PaulPipAr
The Supreme Court dismissed the appeal of the Appellant. It stated that the respondents have the right to be compensated for the siltation caused by the Appellant. The Supreme Court upheld the concurrent findings of the lower courts.
AREA OF LAW
- Environmental Law
Elf Nigeria Ltd
1. Opere Sillo.
2. Daniel Etsemi (For themselves and on behalf of Sillo family of Obodo).
(1994) 6 NWLR (Pt.350)258;
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- K.E. Mozia.
* FOR THE RESPONDENT
- Dr. M. Odje. S.A.N.
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FACT (as relating to the issues)
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(1) 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 - N1,152,000.00.
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 - N1,50,000.00.
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.
1. 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.
2. Whether the respondents proved that the appellants 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.
3. Whether the Court of Appeal was right in affirming the award of damages made by the learned trial Judge in favour of the respondents.
RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In Braide's case, supra, it was held that the effect of section 3(1) 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) 1 All NLR (Pt.1) 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.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.
i. 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.1 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.1 being treated as "experts" or "limited experts", and that since D.W.1 was an expert his evidence should have been the one to be preferred to the evidence of P.W.3 who was not an expert because he had no training in siltation of rivers.
ii. 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.1 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.
iii. 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.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.
i. 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.
ii. 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.
Section 3(1) of the Minerals Act, Cap. 21, which provides as follows: "3(1) 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."
Section 56(1) of the Evidence Act on 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."
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If the evidence of an expert is not shaken under cross-examination and is uncontradicted it should be admitted. 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 scrutinizing it, could be rejected if there is a reason to do so. - Adio, JSC. Elf v. Opere (1994)
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. - Adio, JSC. Elf v. Opere (1994)
This court does not interfere with concurrent findings of the lower courts except where exceptional circumstances why it should do so are shown. - Adio, JSC. Elf v. Opere (1994)
The law is that a statement of claim supersedes the writ. - Adio, JSC. Elf v. Opere (1994)
The end of this brief.
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