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Niger Construction Ltd v. Chief A.O. Okugbeni (1987) - SC


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icon CASE SUMMARY OF:

Niger Construction Ltd v. Chief A.O. Okugbeni (1987) - SC

by PaulPipAr
icon TAG(S)

- Final Address;
- Locus in quo;
icon PARTIES

APPELLANTS
Niger Construction Ltd

v.

RESPONDENTS
Chief A. O. Okugbeni
icon CITATION

(1987) NWLR (Pt. 67)787;
(1987) 12 S.C 108
icon COURT

Supreme Court
icon LEAD JUDGEMENT DELIVERED BY:

Oputa, J.S.C.
icon APPEARANCES

* FOR THE APPELLANT
- Mr. J.J.A. Rerri.

* FOR THE RESPONDENT
- Mr. T. J.O. Okpoko, S.A.N.
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icon FACT (as relating to the issues)

The Defendants before the trial Court Niger Construction Ltd. were a Construction Company. During their construction of the Eku-Effurun Road the Defendant/Company dug up a considerable quantity of laterite from the farm lands belonging to the Plaintiff as well as to other land owners. In that exercise several rubber trees as well as other economic trees like pepper fruit trees were uprooted. The Defendant/Company's excavation resulted into a burrow pit which rendered the land useless for farming purposes. When negotiations for the payment of compensation failed the Plaintiff took out a Writ of Summons claiming, inter alia:- 1. N44,920.00 (Forty-four thousand, nine hundred and twenty Naira) as reasonable compensation for the Plaintiff's rubber trees on the said parcel of land which the Defendants converted into a burrow pit.

After due trial on relevant evidence, the learned trial judge, Prince Akenzua entered judgment for the plaintiff as follows:- "(1) The defendant shall pay to the plaintiff a total sum of N44, 920.00 being the amount of compensation for his 2,246 matured Dunlop Rubber Trees at the rate of N20,00 per tree. (2) The defendant shall pay to the plaintiff a total sum of N400.00 being the amount of compensation for his ten matured pepper fruit trees destroyed by the defendant at the rate of N40.00 per tree. (3) The defendant shall pay to the plaintiff the sum of N20,000.00 as damages done by them to the plaintiff's farm land. (4) The defendant is therefore adjudged to pay to the plaintiff a total sum of N65,320.00 compensation and N2,000.00 cost of this action."

The defendant/Company dissatisfied and aggrieved by the above judgment appealed to the Court of Appeal Benin Division Coram Nasir, P., Pepple and Babalakin, JJ.C.A.

In a unanimous judgment the Court of Appeal affirmed and confirmed the following awards made by the trial Court:- "(a)N44,920.00 being the amount of compensation for 2,246 matured Dunlop Rubber trees. (b)N400.00 being the amount of compensation for ten matured pepperfruit trees."
The Court of Appeal however disagreed with the trial Court as follows: "The award for N20,000.00 as damages done to plaintiff's farm land as nuisance fails. The Appellants are therefore to pay a total of N45.320.00 to the Respondent. There is an appeal against the costs awarded against the Appellants in the lower Court. Bearing in mind the size of this case, the number of appearances and the simplicity of the issues involved, I am satisfied that the costs were excessive. I reduce the costs in the lower Court to N1,200.00. I assess the costs in this appeal in favour of the Appellants to be N2,000.00."

It is thus apparent that the appeal of the Defendant/Company against the judgment of the trial Court was only partially successful. As a result both Defendant/Company and the Plaintiff appealed to this Court against the judgment and Orders of the Court of Appeal.

However the respondent withdrew his cross-appeal after placed on noticed that he filed outside the statutory time granted by the Supreme Court Act.
icon ISSUE(S)

1. Whether the learned Justices of the Court of Appeal Benin City were right in failing to appreciate the effect of the serious error of the learned trial judge who prejudged the case put forward by the Appellant at the address stage and thereby failed to weigh the case of the Plaintiff/Respondent, before making specific findings of fact prejudicial to the Appellant's case.

2. The learned Justices of the Court of Appeal erred in law and on the facts when they failed to consider the effect of the evidence of D.W. 3 and D.W.4 which were unchallenged as regards the respondent's claim to the whole burrow pit...and also to all the crops in the area in dispute and thereby came to a wrong conclusion, namely, that no issue of title is involved and that the respondent is in exclusive possession of the whole area in dispute when in fact he is not..."

3. Whether the learned justices of the Court of Appeal were right either in their own view or for the reasons given by the learned trial judge for refusing the application to visit the locus in quo.
icon HOLDING & RATIO DECIDENDI

[APPEAL: DISMISSED]

1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.

RULING:
i. The Plaintiff pleaded and gave evidence that he had 2,246 matured Dunlop Rubber Trees on his land; that these were all uprooted and destroyed by the Defendant/Company; that each rubber tree costs N20.00. There was no rebuttal evidence from the Defendant. It then became a question of simple arithmetic to multiply 2,246 by 20 to arrive at N44,920.00 as the amount of compensation due to the plaintiff for the loss of his rubber trees. The learned trial judge was very right in not calling upon the Plaintiff to address him on such a simple issue of fact. In the absence of evidence showing two conflicting versions of an essential fact, the trial Court cannot be blamed if it accepted (even without a closing address) the only version proved by the evidence. Not calling on the Plaintiff to address the Court does not ipso facto mean that the learned trial judge had prejudged the issues in controversy in the case.

2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.

RULING:
i. The Plaintiff in this case never claimed a declaration of title to the land in dispute. He merely claimed compensation for his trees destroyed. Also no issue of title can arise between a plaintiff and a witness. Issues usually arise between the Plaintiff and the Defendant. The Plaintiffs case was simple. He gave the number of his rubber trees and pepper-fruit trees that were destroyed by the Defendant. He also gave the value of each tree destroyed. Whether D.W.3 and D.W.4 also owned trees in the area of the burrow pit and whether their trees were also destroyed were no concern of the Plaintiff. The Defendant/Company is certainly not holding brief for D.W.3 and D.W.4. Also the Defendant/Company cannot escape liability to the Plaintiff by proving that the rubber trees of D.W. 3 and D.W. 4 were also destroyed by them (the Defendant/Company). The Plaintiff never made the total number of trees belonging to all adjoining land-owners part of his case. Why then should his case depend on whether or not D.W.3 and D.W.4 also owned some trees within the area of the burrow pit? I do not see any reason why.

3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.

RULING:
i. In this case, the issue of liability of the Defendant to pay compensation will not be advanced one inch by such a visit. That issue had been proved to the hilt by evidence including that of D.W.6. If the aim of the visit was to see the rubber and pepper fruit trees well these had been destroyed and there was no issue as to the precise number of trees destroyed as the number given by the Plaintiff was not challenged. The Plaintiff filed a Plan, Ex. A, which was not challenged by the statement of Defence. The features on Ex. A, will then be regarded as established. There was no need to go on inspection of land whose features had been established. What will the Court gain by seeing the burrow pit? Nothing at all. "The boundary between the plaintiff and D.W.3" was not an issue in this case. Why then should the trial Court waste its time to go and see that boundary which will not help it resolve any issue in this case one way or another?
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icon NOTABLE DICTA

* PROCEDURAL
It is also true that a Plaintiff is entitled to rely on any evidence from the defence which goes to prove or support his case. - Oputa, JSC. Niger v. Okugbeni (1987)

* SUBSTANTIVE
Addresses are designed to assist the Court. When, as in this case, the facts are straight forward and in the main not in dispute, the trial judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue. - Oputa, JSC. Niger v. Okugbeni (1987)

Also no issue of title can arise between a plaintiff and a witness. - Oputa, JSC. Niger v. Okugbeni (1987)

No Court visits the locus just for the fun of it. Such a visit may be undertaken if it would help the Court resolve some doubts or conflicts about certain aspects of the oral testimonies in Court. - Oputa, JSC. Niger v. Okugbeni (1987)

But where as it is in this case the complaint by counsel is not that he himself had not been allowed to address the court but that counsel for the other side had not been allowed to address the court, and that counsel had not in anyway complained about this, I cannot see how such a complaint can be said to occasion an injustice to the counsel complaining or any miscarriage of justice. - Agba Je, JSC. Niger v. Okugbeni (1987)
The end of this brief.


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