EJOWHOMU V. EDOK-ETER MANDILAS LTD
| Pages | 1184-1215 |
1184
NIGERIAN SUPREME COURT CASES
[19861 2 N.S.C.C.
OPUTA, J.S.C.: I
have had the privilege of reading in draft the lead judgment
just delivered by my learned brother Kazeem, J.S.C. as well as the concurring
judgment of the Presiding Justice, Bello, J.S.C. Both judgments dealt adequately
with all the points canvassed and agitated in the appeal. I agree with the reasoning
and conclusions in both judgments. I also abide by the consequential orders made
in the lead judgment.
Appeal dismissed.
EJOWHOMU V. EDOK-ETER MANDILAS LTD.
CHIEF P.V. EJOWHOMU
V
EDO-ETER MANDILAS LTD.
SUPREME COURT OF NIGERIA
OBASEKI,
J.S.C.
ANIAGOLU,
J.S.C.
UWAIS,
J.S.C.
COKER,
J.S.C.
KARI BI -WHYTE,
J.S.C.
26th September, 1986
APPELLANT
RESPONDENT
SUIT NO. SC 205/1985
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Practice and Procedure - Jurisdiction of appellate Court to determine issues not
raised on appeal before it.
Torts - Nuisance - Public nuisance - When private person may sue - Remedies
- Damages for nuisance - Private and public nuisance - Whether criteria of
assessment the same.
ISSUES:
1.
Whether an appellate court is entitled to consider and determine an issue not
raised in an appeal before it.
2.
Whether the Court of Appeal has a supervisory or a reviewing jurisdiction over
the High Court.
3.
What must an appellate Court do when it decides to raise
Suo Motu,
an issue
that is material to the case before it but not raised by the parties in the case?
4.
To what principle must the Court of Appeal adhere in the exercise of its power
of re-hearing under section 16 of the Appeal Court Act, 1976 and order 1 Rule
20(5) of the Rules made thereunder, in respect to "rehearing"?
5.
Under what circumstances will an appellate Court be entitled to interfere with,
and reverse the findings of fact of a trial Court?
6.
What is the measure of damages in public as against Private nuisance?
FACTS:
The appellant sued the respondent - Company for damages flowing from acts
of nuisance committed by the latter which had caused injury to the former's busi-
ness interests. The acts complained of were road construction activities carried
out by the respondents as independent contractors, for the Government of Ben-
del State. The activities culminated in a road - blockage, barring access to the
appellants' poultry Farm. The appellants claimed that during the blockage, his
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EJOWHOMU V. EDOK-ETER MANDILAS LTD.
1185
layers had died of starvation and that other birds had been sold at a loss for being
under-weight. He also claimed for medical expenses for the birds, extra cost for
transportation and general damages. The trial court found that the respondents
had committed public nuisance, that the appellant had suffered particular injuries
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over and above that suffered by the public at large as a result of the respondent's
acts. He however held that there was not sufficient evidence of the value of the
birds before and after the losses sustained by the appellant and that damages were
not therefore proved. The Court thought that the standard of assessment was as
in private nuisance, it therefore dismissed the appellants case. The appellant ap-
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pealed against the decision of the Court on the question of damages. The Court
of Appeal thought that on the records, the case for nuisance was not established
and gave judgment in favour of the respondent, leaving the issue raised on appeal
by the appellant undecided. There had been no cross appeal by the respondents
against the findings of fact by the trial court on the issue of liability.
15 HELD:
1. That the Court is only entitled to consider an appeal on the grounds of error of
law or fact placed before it in the grounds of appeal filed. An appellant cannot
without leave of the Court be heard on any other grounds. The whole purpose
of grounds of appeal is to give notice to the respondents of the errors
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complained of. Thus where an appellant relies on any ground, this must be
properly raised either by way of a ground of appeal or as a cross - appeal if
a respondent. Any issue not raised in a ground of appeal in this manner is
clearly not before the Court. Accordingly, it is not open to the court to raise an
issue which the parties have not raised. The Court of Appeal had no jurisdiction
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to raise and consider the issue whether the trial Judge was right in his findings
of fact that the respondent was liable to the appellant for nuisance. As the
respondent had not appealed against the finding of the learned trial Judge, the
presumption that the finding of fact by the learned trial Judge is correct,
therefore stands.
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2. That the Court of Appeal has no supervisory and reviewing jurisdiction over the
High Court apart from hearing appeal brought to it by a party in the exercise
of his constitutional rights of appeal. It can only exercise the powers granted
by the constitution and other statutes to it. It is not an avantgarde with powers
of review of cases decided at the High Court, like an ombudsman, going about,
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raking up,
suo motu
decisions of that court, and looking for mistakes,
supposedly made by that court, with or without applications made to it by a
complainant. Such is not among its powers under section 16 of the Court of
Appeal Act, 1976.
3.
That where a court decides to raise an issue
(suo motu
in a case before it)
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because it is material for the determination of the appeal before it, the parties
must be given an opportunity to argue the point before decision is taken.
4.
That the principle is that the Court of Appeal in the exercise of its powers of
rehearing under section 16 of the Court of Appeal Act, 1976 and order 1 Rule
20(5) Court of Appeal Rules, 1981, is entitled to make any order or give any
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judgment which will ensure the determination on the merits, of the real question
in controversy between the parties. It does not envisage the circumstance
where an appeal court would rely upon an issue unconnected with the real
question in controversy between the parties, and determine the appeal on such
ground.
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5 That a Court of Appeal will only interfere with a finding of fact in the court below
when it is clear that the finding is perverse, and not flowing from the facts relied
upon, or is not a proper exercise of judicial discretion. Also, where there was
ample evidence and the trial Judge had failed to evaluate it and make proper
findings, the Court of Appeal is entitled to evaluate such evidence and make
1186
NIGERIAN SUPREME COURT CASES [1986] 2 N.S.C.C.
the findings which the court below ought to have made except where the matter
rests on the credibility of the witnesses. However,
there must be before the
court a ground of appeal raising the issue directly or on which the determination
of the issue depends
(Editor's italics).
6.
That in public nuisance, the issue of the measure of damages is the same as
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that for torts generally. The damages are whatever loss result, to the injured
party as a natural consequence of the nuisance. Hence the entire loss which
the appellant has suffered directly as a result of the nuisance for which the
respondents have been held liable is the total damage for which the respondents
will be responsible. Thus it is not only the value of the birds, but also other
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incidental expenses which are the direct result of the nuisance created by the
respondents in destroying the bridges and rendering the high-way impassable
to ordinary road users. To the extent that the trial court thought that the measure
of damages in the case was "the difference between value before the act
complained of and the value after the injury - diminution in value", and that the
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diminution should have been pleaded, he had applied the wrong principle.
That principle applies only to private nuisance.
7.
That the particular damage to be proved is not limited to special damage in the
sense of actual pecuniary loss. It may consist of general damage, e.g.,
inconvenience and delay, provided that it is substantial and appreciably greater
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than any suffered by the general public. The principle applies also where the
obstruction to the Highway causes harm to the plaintiff's trade on adjacent
premises.
OBITER:
A private individual has a right of action in respect of a public nuisance if he
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can prove that he has sustained particular damage other than and beyond the
general inconvenience and injury suffered by the public and that, that particu-
lar damage is direct and substantial. It is not necessary to prove that every
member of the public has been affected.
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CASES REFERRED TO IN JUDGMENT:
1.
A-G. v. P.Y.A. Quarries Limited
(1957) ALL E.R. 894.
2.
Akibu v. Opaleye & Ors.
(1974) 1 ALL N.L.R. (part II) 344.
3.
Benjamin v. Storr
(1874) L.R. 9 C.P. 400.
4.
Boyce v. Paddington Borough Council
(1903) 1 Ch. 138 at 153.
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5.
Fritz v. Hobson
(1880) 12 Ch.D. 542.
6.
Vanderpant v. Mayfair Hotel Co.
(1930) 1 Ch. 138.
7.
lveson v. Moore 1 Ld. Raym
486. 91 E.R. 1224.
8.
Hart v. Basset
(1681) 4 Vin. Abr. 519.
9.
Winterbottom v. Lord Derby
LR. 2 Ex. 316.
40
10.
James v. Mid-Motors Nigeria
Co.
Ltd.
(1978) 11 & 12. S.C. 31
11.
Ellochir (Nig.) Ltd. v. Mbadiwe
(decided on 10/1/86).
12.Kojo 11 v. Bonsie
(1952) 14 W.A.C.A. 242.
13.Fatoyinbo v. Williams
(1956) 1 F.S.C. 87.
14.
Thomas or Watt v. Thomas
(1974) A.C. 484.
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15.Dwyer
& Anor v. Mansfield
(1946) 1 ALL E.R. 247.
16.Ebba v. Ogodo & Anor
(1984) 4 S.C. 84 at 122.
17.Southport Corporation v. Esso Petroleum
Co. (1956) A.C. 218.
18.Shitta-Bey v. The Federal Public Service Commission
(1981) 1 S.C. 40 at 59.
19.Overseas Construction Ltd. v. Creek Enterprises Ltd. & Anor.
(1986) 3
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N.W.L.R. 407 at 420 & 423.
20.Moss v. Cristchurch
(1925) 2 K.B. 750.
21.
Rose v. Miles
(1815) 4 M & S 101.
22.lveson v. Moore
(1699) 91 E.R. 1224.
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