⦿ CASE SUMMARY OF:
Chief P. U. Ejowhomu v. Edok-eter Mandilas Limited (1986) – SC
by PipAr-RAshid
⦿ LITE HOLDING
The Court of Appeal can exercise its powers under section 16 of the Court of Appeal Act only to issues directly in dispute.
⦿AREA OF LAW
Law of Tort
⦿ TAG(S)
– Nuisance.
– Public Nuisance.
– Damages.
⦿ PARTIES
APPELLANT
Chief P. U. Ejowhomu
v.
RESPONDENT
Edok-eter Mandilas Limited
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Karibi-whyte, JSC
⦿ APPEARANCES
* FOR THE APPELLANT
Dr. M. Odje S.A.N.
* FOR THE RESPONDENT
Mr. Azeta
AAA
⦿ FACT (as relating to the issues)
Appellant, the Plaintiff in the High Court, Benin City brought an action claiming against the Respondents as defendants as follows:
“… the sum of N176,RR6.45 (One hundred and seventy six thousand, eight hundred and eighty six naira, forty five kobo) being special and general damages peculiar to the Plaintiff and suffered by him in his peculiar circumstance as the owner of Puejo-Edaff Poultry farm resulting from the nuisance and/or unlawful damage caused by the defendant in that during the substantial part of the month of July 1982, the defendant deliberately, wrongfully and/or negligently damaged and/or rendered impassable to vehicular the Kokori Inland to Oko Idgerhe section of the Kokori Inland-Eku Road, along which the Plaintiff’s Puejo-Edaff Poultry farm aforesaid lies and situate in Okori Village Kokori inland of Aghon clan…”
The Trial Court held that the claim for nuisance have been made out. But no damages have been made out to make the Appellant entitled. The Appellant appealed to the Court of Appeal.
The Court of Appeal observed that the law as to the rights of an individual to sue and recover damages for injuries arising from public nuisance has not been dealt with properly in this case and proceeded to do so regardless of the issues for determination before it. The Court proceeded to point out matters which were not considered by the trial court but were necessary for its decision, such as whether the act of the defendant was necessary or wrongful or unreasonable. The Court decided to evaluate the evidence of the witnesses and came to the conclusion that there were conflicts and contradictions in plaintiff’s case of such a nature that there could be no finding that there had been a public nuisance and plaintiff’s claim could not lie. Since the Plaintiff’s claim has failed having not established that a cause of action for nuisance lies, the Court declined to consider the question of damages which was the issue before it.
This is a further appeal by the Appellant to this Court.
⦿ ISSUE(S)
1. Whether the Court of Appeal had jurisdiction or power to impugn and reverse the specific finding of fact of the learned trial Judge in favour of the Appellant as regards the liability of the Respondent for public nuisance, in the absence of an appeal and/or cross-appeal by the Respondent against such finding.
2. Whether, having held that the learned trial Judge proceeded on a wrong principle with respect to the issue of damages and/or the measure of damages, the Court of Appeal was right in refusing to assess and award special and/or general damages in favour of the Appellant on the basis of the evidence on record.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: ALLOWED]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
RULING:
i. It is clear that the Court of Appeal had no jurisdiction to raise and consider the issue whether the trial judge was right in his findings of fact that Respondent was liable to the Appellant for nuisance. The Court of Appeal has admitted that Respondent has not appealed against the finding of the learned trial judge. Accordingly, the presumption that the finding of fact by the learned trial Judge is correct stands. The Court of Appeal therefore has no jurisdiction, having not been called upon by the Respondent by a ground of appeal properly filed, to evaluate the evidence and substitute its own views of what it considers the trial Judge ought to have found.
ii. What this Court has unequivocally and consistently ruled against is exactly what the Court of Appeal has done in this case. The Court of Appeal was therefore in error to have suo motu raised the issue of the liability of the Respondent and decided the appeal against the Appellant on that ground when that was not an issue before it in any form.
iii. Accordingly the finding of fact by the trial Judge that the Respondent is liable to the Appellant in respect of the acts of nuisance committed by the former which resulted in the damages claimed by the latter remains undisturbed.
2. FOR ISSUE 2, THE CASE WAS REMITTED BACK TO THE TRIAL COURT FOR PROPER DAMAGES EVALUATION. The Trial Court stated, “The case is however remitted to the trial Court to take further evidence and assess the damages recoverable in accordance with the principles outlined in this judgment.”
⦿ REFERENCED
⦿ SOME PROVISION(S)
Section 16 of the Court of Appeal Act No. 43 of 1976 provides as follows:- “The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other direction as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be reheard by a court of competent jurisdiction.”
⦿ RELEVANT CASE(S)
AAAA
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
The purport of Section 16 is to vest in the Court of Appeal all the powers of a court of first instance in the determination of the appeal before it. – Karibi-whyte, JSC. Ejowhomu v. Edok-Eter (1986)
* SUBSTANTIVE
The whole purpose of grounds of appeal is to give notice to the Respondents of the errors complained of. – Karibi-whyte, JSC. Ejowhomu v. Edok-Eter (1986)
The proposition is both elementary and fundamental to our judicial system that there is a presumption that the judgment of the trial Court is correct, and the burden of showing the contrary is always on the appellant. – Karibi-whyte, JSC. Ejowhomu v. Edok-Eter (1986)
If the defendant bulldozed the road under the contract with the Bendel State Government, then it is lawful act. The act is warranted by law as a result of the existing contract with the Bendel State Government. However, if the job being done by the defendant constitutes nuisance, it is no defence that it was executing a legitimate contract. In this case, negligence is not relied on by the plaintiff. His cause of action is nuisance that the three bridges on that portion of the road were removed by the defendant and not replaced nor alternative access created by the defendant which could be motorable and passable by the public and the plaintiff in particular. To this extent, the plaintiff’s right to bring this action is established. – Obaseki, JSC. Ejowhomu v. Edok-Eter (1986)
A private individual has a right of action in respect of a public nuisance if he can prove that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public and that the particular damage is direct and substantial. – Obaseki, JSC. Ejowhomu v. Edok-Eter (1986)
