➥ CASE SUMMARY OF:
Seismograph Services (Nigeria) Ltd. v. Robinson Kwavbe Ogbeni (1976) – SC
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC.39/1974
➥ JUDGEMENT DELIVERED ON:
Friday, the 5th day of March, 1976
➥ AREA(S) OF LAW
Damage;
Expert evidence.
➥ PRINCIPLES OF LAW
⦿ EXPERT EVIDENCE OVER WEIGHS PRESUMPTION
It is, therefore, a negation of duty to run away from expert evidence and postulate presumptions. Presumptions do not arise where direct evidence is available. — Obaseki Ag JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
O. Obaseki, Ag. J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Chief F.R.A. Williams S.A.N.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
In the High Court of Justice of the Mid-Western State of Nigeria, holden at Ughelli, the plaintiff/respondent by his writ of summons taken out on the 22nd day of July 1971, claimed from the defendants/appellants “the sum of 1,000pounds (one thousand pounds) special and general damages for nuisance caused by the defendants, their servants or agent in the course of carrying out oil exploratory exercise of exploding the oil testing chemicals around the region of plaintiff’s building which said explosion wrongfully caused or permitted excessive noise and vibration which damaged plaintiff’s/respondent’s building.” Pleadings were ordered and delivered.
The case later came before Ogbobine, J., for trial. He heard the evidence of the plaintiff and his two witnesses as well as the evidence of the six defence witnesses who were called by the defendants.
After hearing the address of counsel for the parties, he on the 27th day of October 1972, gave a considered judgment in which he found in favour of the the respondent and awarded him 350pounds damages with 60 guineas costs.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the learned trial judge was right in giving the Respondent judgement?
RULING: IN APPELLANT’S FAVOUR.
A. THE RESPONDENT WITNESS DID NOT ESTABLISH THE CAUSE OF THE DAMAGE ON THE RESPONDENT’S HOUSE
“We observe that the evidence adduced by plaintiff established that seismic operations took place in the village at unknown date in 1969, and that the vibrations caused by the operations travelled through his building, shook it, and caused several serious cracks in the pillars and walls of the building which he claimed were of sandcrete blocks i.e. 6 inches cement blocks. Bernard Edricson Akporiaye, PW1 (Chartered Surveyor & Professional Valuer) gave the number of cracks he saw as 29, 15 of which affected the foundation of the buildings. He observed that the shot point was 120 yards to the building. His inspection was carried out on 14th June 1971, over 2 years after the alleged operations. He observed that 10 of the cracks were serious cracks that showed themselves inside the buildings. He also discovered that the floor of the building inside the house had caved in. This, in his opinion, showed a violent movement under the foundation of the building. He then valued the house at 880. He did not testify as to the origin or cause of the violent movement under the foundation. One could have thought that he was commissioned to estimate the cost of repairing the damage to the building. Surprisingly, there is a total absence from the evidence of plaintiff and his witnesses of these vital statistics. He admitted that he was not a geophysicist. He also admitted that he was not a civil engineer.”
“We are in agreement with the learned counsel for the appellant that there was no evidence led by the plaintiff and his witness to support the learned trial judge’s finding that the shooting operations were carried out in February 1969.”
B. TRIAL JUDGE FAILED TO ACT ON THE EVIDENCE OF THE EXPERT ALAN BERGER
“The only expert who testified on causation before the Court was Alan Berger DW3. Testifying as to his qualification, he said: “I have an honours degree in Geology, from the University of London. I have a post graduate Diploma in applied Geophysics from the Royal College of Geophysics, London. I have worked in Nigeria, Holland, Angola, Mozambique and England. In Nigeria, I have worked on all oil producing States including part of the Western State.” The failure of the learned trial judge to act on his evidence which he did not directly reject, was a grave error. Nevertheless, this failure to act on the expert evidence of DW3 did not improve the plaintiffs case. It only increased the burden on the learned trial judge in his task of ascertaining the cause of the damage from the evidence adduced by plaintiff and witnesses. The absence of expert evidence in support of plaintiff/respondent made his task impossible.”
C. THE COURT SHOULD HAVE VISITED THE LOCUS WHERE THE HOUSE OF THE RESPONDENT IS LOCATED
“In our view, the only way the court could have resolved this conflict was to have moved to the locus and carry out judicial inspection. See section 76(a) and proviso (ii) to section 76 of the Evidence Act. This was not done and the conflict remained unresolved. There was, in our view, no proper evaluation of evidence on the point. Without proper evaluation ofthe evidence, the issue as to damage could not be and was not resolved for the correct and right judgment to be made by the learned trial judge. This court has recently, in the case of Seismograph Service (Nigeria) Limited v. Esiso Akporuovo (1974) 6 SC. page 119 at page 128, emphasised the point that the issue in such a case as this can only be resolved by a visit to the scene.”
.
.
.
✓ DECISION:
“We are satisfied that the judgment of Ogbobine, J., cannot stand in the face of the arguments in support of all the grounds of appeal and we hereby allow the appeal for the reasons stated above. The judgment of Ogbobine, J., together with the order as to costs in SUIT No UHC/34/71, delivered on the 27th day of October, 1972 is hereby set aside and we substitute, therefore, a judgment dismissing the claim with costs assessed at N180.00 in this Court and N50.00 in the lower Court.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
