Ivory Magazine Interview Session

A legal practitioner of over 20 years experience, Mr. Ndi Syke Chuks Nwasike is principal partner of FirstCounsel Firm, Victoria Island, Lagos, Nigeria. Ivory International Magazine recently caught up with him for an interview.

IVORY: The recent judgment you won against NNPC concerning petroleum pipelines failure was widely reported in the Nigerian press and in some media here in the United Kingdom. Considering this is not the first judgment against NNPC, why do you think this is generating ripples?

NWASIKE: I would want to believe that the ripples are partly as a result of the soundness and thoroughness of the judgment as a whole. In the course of the trial, the judge in fact moved the court to the point of rupture and spillage to see for itself. The trial itself lasted about 4 years, traversing 2 judges, and ending up in a different judicial division from where it started. My clients, Ubahu town, on their own part were determined to see the case to its logical conclusion despite the frustrations they faced from the excruciatingly slow pace of our judicial system. Something funny happened in the course of the trial. The NNPC awarded a contract to one of the key Plaintiffs representing the town, and thereafter he ceased to appear in court.

IVORY: What can we do to reduce the turn around time for cases in Nigerian courts?

NWASIKE: I must say that a lot has been done for the judiciary in the past 7 years of our democracy. You must realize where we are coming from; a military regime where might was right, and people had no need for the law courts so long as they had access to a military officer. The federal and state judiciaries have done a great deal in terms of reforms, and the effects are being felt although not as fast as one would desire. What is lacking however is the political will and reorientation of judicial officers to the reforms. Admittedly, in political cases, there has been a resurgence, and realization of the worn dictum that “justice delayed is justice denied”. I’m afraid that this rebirth has not been felt in other causes and subject matter. I can be sure that if an appropriate study is commissioned, the spate of unexplained deaths in the country through the years could be linked to potential claimants who did not have the confidence they would get justice from our courts.

IVORY: Anything to learn from the west?

NWASIKE: Interesting question for Nigeria’s policy makers who pack their suitcases and jump into airplanes to the west to seek solutions to every conceivable problem. In an annual study I conduct as a local Nigeria partner to the World Bank and the International Finance Corporation over the past 5 years, it was determined that the average time for enforcing a simple contract in Nigeria is about 2 years. Neighboring Ghana, which shares its legal system origin with us from Britain, enforces in about 100 days, if I remember correctly. The interesting bit of this story is that the turnaround time for Ghana is less than that of our grandmaster Britain. Tell me, who do we learn from here? My recommendation is simple. We should continuously benchmark with countries that share similar structures and processes with us, learn from each other, compete, and continuously improve.

IVORY: Back to the case. What was notable about it?

NWASIKE: Well, all the time, the government of Nigeria blames every petroleum product spillage on vandals. The government even has a law that says victims of petroleum spillage fire disasters get no compensation where the spillage is due to third party vandalism. They send the police to arrest innocent persons passing by or residing near the points of leakage. Where fires have occurred, burnt Nigerian citizens are hunted by the Police even to the extent that some hospitals are often afraid to admit and treat victims of spillage fires. The judge made a very bold pronouncement in his judgment, and I quote him; ““The corporate culture of the Defendants (NNPC) seems to treat every rupture of pipeline as a case of vandalisation”. This pronouncement is a heavy indictment on NNPC, which the government should take seriously.

Furthermore, we were able to establish that the NNPC pays lip service to the rules of engagement in this industry. As everyone knows, activities in the oil industry are exceedingly risky, dangerous, but lucrative. For such activity in other advanced parts of the world the emphasis is on safety and the environment. In Nigeria the emphasis unfortunately is to take so much from the bowels of the earth as quickly as possible, and share the petrodollars. The Nigerian government, I’m afraid to say this, operates like an army in occupation in the oil region. This mindset is responsible for the unrest in the Niger Delta today. NNPC witnesses did not know if the pipelines were insured. Can you imagine that? Of course no serious underwriter will take that kind of risk without ensuring that maintenance budgets are judiciously applied.

IVORY: Is this an indictment on the Nigerian Engineer?

NWASIKE: Not necessarily so. It is a case of abandonment of industry regulations by an operator who is stronger than his regulator. The regulator used to be an “unattractive” department of the NNPC. The lapses are bound to occur in any part of the world. Our expert witness, who exposed the lapses, is himself a full-blooded Nigerian engineer. The practice of engineering worldwide involves standards. No local standard or practice is isolated from the other. For instance, the standards for pipelines designs in Nigeria derive from American Society of Mechanical Engineers standards, what they call the ASME code. Local legislation prescribes our own standards and additionally adopts the ASME code. Where standards are not followed, or where corners are cut, any pupil engineer would know that damages would result in due course. It’s only a matter of time. And this is what happened. How else can one explain that, despite the publicity elicited by the Nigerian press, the DPR has not to the best of my knowledge visited the community? The court agreed that the repairs carried out by the NNPC after the spillage occurred were unprofessionally, carelessly, and imprudently carried out, and ordered for the job to be properly done. If you visit the community today, you will see ample and very credible evidence of the negligence of the NNPC such as the exposure of the metal of the pipes and lack of concrete coating or anchor across the river. You do not need to be an engineer to know this. The risk of lethal consequences from further leakage is therefore high and substantial, but the industry regulator sleeps.

IVORY: Are these lapses in standards widespread?

NWASIKE: I would not know with certainty. The regulations should be seen as minimum standards. In Nigeria, the operators should self regulate and ensure that local peculiarities and oddities are well considered in their operations. There is a general provision in the pipelines safety regulations that provide that pipelines operations must be carried out in a way that shall cause the least disturbance to the environment. This appears a general provision but it is the most far-reaching in my opinion. I listened recently to an NNPC staff speak to newsmen on camera at the site of a recent spillage in Lagos State, Nigeria and he made an interesting admission that was not lost on me. He said that to avoid recurrence, they plan to bury that pipeline deeper. Did they have to wait for loss of lives before engaging in this basic preventive measure? More like medicine after death.

IVORY: How do you unwind, when you are not chasing negligent operators?

NWASIKE: I used to drink and club a lot, but hey, I’ve had my share. These days, I love spending quality time with my family. I especially cherish times I spend playing with my four girls. They amaze and inspire me. I am the present. They are the future. And, I’m also playing catch up with establishing a close relationship with my God. You cannot beat the combination of time with ones you love, and with He who loves you.

IVORY: Thanks for your time.

NWASIKE: Anytime.

VANDALIZATION OF PETROLEUM PIPELINES IN NIGERIA

WHO VANDALIZES PIPELINES IN NIGERIA?

“The corporate culture of the Defendants seems to treat every rupture of pipeline as a case of vandalisation” so pronounced the Honourable Justice C.E. Archibong the presiding Judge of the Nigerian Federal High Court in the case of the community of Ubahu in Nkanu East Local Government Area of Enugu State, Nigeria (represented by their traditional ruler) against the Nigerian National Petroleum Corporation and its pipelines and marketing subsidiary Pipelines and Products Marketing Company PPMC. The Plaintiffs brought an action against NNPC/PPMC claiming N1, 240,000,000 in special and general damages suffered by the plaintiffs’ Ubahu Town from oil spillage from Defendants’ pipelines which occurred between 28th April 2001 and 10th May, 2001 on the bank of the Idodo River in Nkanu East L.G.A. the spillage resulted in pollution, damage and destruction of aquatic life, fish nets and traps, farmlands, crops, drinking water, and vegetation in the environs of Ubahu Town & its residents.

The plaintiff community was represented by Barrister Ndubisi Chuks Nwasike of First Counsel Firm, Victoria Island, Nigeria; while the Defendants were represented by the law chambers of OCJ Okocha (Senior Advocate of Nigeria), Port Harcourt, Nigeria.

The Honourable Justice Charles Archibong in giving judgment for the Plaintiffs had observed that “…the Defendants’ arguments and evidence that are tendered are not particularly helpful… their admitted lack of familiarity with the section of pipeline, and ignorance about the faulty construction of said section of pipeline there is not much of illumination. Their parroting of NNPC/PPMC maintenance regime and procedures is not indicative of anything with bearing to the section of pipeline that was ruptured resulting in spillage”.

Mr. Nwasike had submitted that the “Defendants failed to adopt standard precautions to guard against a recognized risk. Defendants continue to maintain the pipelines without regard to oil safety regulations and standards”. He argued that this presented an appropriate situation for the Courts to order a perpetual mandatory injunction compelling NNPC & PPMC to eliminate the risk and maintain its pipeline in the proper manner as the Defendants have unreasonably failed to achieve the standard of care required in its operations, despite the enormous resources available to them and that unless so compelled by the Court the Defendants would continue to pay lip service to the safety obligations and concomitantly its duty of care to the Plaintiffs.

He further argued that the pipelines were recklessly kept and maintained and that even the repair claimed to have been carried out after the spillage was unprofessionally, carelessly and imprudently carried out. The risk of lethal consequences from further leakage is therefore high and substantial for which an injunction against the defendants should be granted. The plaintiffs led evidence to show that NNPC had not maintained or installed their pipelines in line with the laid down rules and regulations guiding such through evidence by their community leader, an expert and the post spillage report of the Enugu State Environmental Agency.

An expert witness in the case led by Mr. Nwasike had testified that the Nigerian regulators “for a variety of reasons … do not do as good a job as they should on regulation and for this reason there is a large measure of self regulation by the operators”. The expert had stated that when these standards are not followed the pipelines begin to corrode at a rate faster than they would have corroded. He also explained that where the regulations and standards are not followed, the operator would be aware that damage could result to the public. Considering the pipelines in question the expert stated that “it is likely the pipelines will continue to corrode and the environment will be seriously and severally impaired and the community safety will also be at risk. The operator being aware that there is a world wide increasing shortage of farm land needs to take extra precautions to protect the public and his asset”.

In the course of the trial the Court had to pay a visit to the locus in quo (the site where the spillage occurred). The judge observed in the judgment that there was no sign of vandalisation and that “From what I saw on the day (on the day of visit to site) the pipelines are not in a state that they should be… if a repair was done it was not completed. A pipeline in which the metal of the pipe can be seen cannot be said to have been repaired”.

NNPC brought witnesses comprising experienced and long serving members of Defendants’ staff, hired experts and contractors to testify in their defense in the suit. The defendants by their testimonies through their witnesses claimed that they were operating and maintaining the pipelines in line with requisite regulations and in fact operated with stricter regime than is required by the regulations. They also claimed that “Vandalisation of pipelines in this area is a re-occurring exercise” and that they had never seen any case of rupture in Enugu state only cases of “vandalisation”. However under cross examination by Plaintiff Counsel Mr. Nwasike, the first Defendant Witness admitting “the area under jurisdiction has many Rivers. The pipelines are buried under these many rivers. I do not know why the Idodo crossing of the pipeline is not submerged or buried”.

The Court after hearing the arguments of Counsel on both sides found that the question arising was whether there was negligence occasioning a rupture in the defendants’ pipeline at Ubahu resulting in damages suffered by the community. The Judge took a position on the fact and law, which in his view is implicitly shared by the parties that there is definitely a duty of care owed by the defendants to the plaintiffs’ community to ensure the integrity, safety, security, maintenance and repair of the pipelines traversing their territory; in line with regulations and guidelines in existence to promote those ends. The pipelines are to be fit for purpose i.e. the safe transportation of petroleum products through pipes under or over all types of terrain including water ways and swamps without endangerment to the environment traversed.

The Judge said, “When we refer to Oil and Gas pipeline Regulations. 1995 sections 3, 4, 5 and 9 and the relevant standards of the American Society of Mechanical Engineers referred to within said provisions, it is clear that Plaintiff Witness’ observations at locus in quo were very informed ones and that he did not testify that the pipelines were old and corroded but he implied the pipelines were at great risk of being in a state that would invite corrosion and put its immediate environment at risk, asserting that this was true of even its post repair state”.

The Judge stated that “the lapses and departure from regulations observed by Plaintiffs’ Witness at the Idodo crossing of the Defendants’ pipelines were not negated by testimony from any of the defendants’ witnesses and there seemed to be a confusion about where the exact spot of the rupture occurred as the Defense witnesses’ testimonies of where the spillage occurred contradicted themselves as well as the observation of the Court during its visit to locus in quo”.

The Court then stated that there was no direct evidence on anti-corrosion maintenance of the section of pipeline in question, no explanation or testimonies (direct or indirect) justifying the manifest departure from existing regulations, guidelines and standards at the Idodo River Crossing and the documents tendered were not particularly helpful. Saying that the defendants’ averment that the pipeline spillage was caused by “acts of third party members from the Plaintiffs Community” without any evidence led to support them; the Court viewed as insufficient. It further observed that although the defendants aver that they have a “Right Way Monitoring Team” daily combing the area in question, they were slow in responding to an emergency reported to them by the Police and yet they did not provide the Court with whatever forensic evidence or testimony etc. from the Police which informed their conclusion of a case of vandalisation. However the plaintiffs had made reports to the defendants who were non- responsive and also reported to the police about the rupture and spillage in the territory of the community.

Citing Osigiwe vs. Unipetrol a Court of Appeal, Ibadan Division case reported (2005) 5 NWLR Part 918 page 261 at 283, per Adekeye JCA “I have to point out that negligence is a question of fact not law. Thus each case must be decided in the light of its own facts”. The Honourable Court considering the facts of the case found that what was established is that “we have a poorly constructed pipeline of advanced age along the relevant section in the territory of Ubahu Community; there are deviations from industry standards in operation and maintenance. And there has been a rupture of the said pipeline in the plaintiffs’ community territory, there has been spillage of petroleum products DPK (Dual Purpose Kerosene) specifically”.

The Honourable Court found that although the plaintiffs had not proven that corrosion caused the rupture, they had instead pleaded and led evidence to establish facts sufficient to bring into play the legal maxim res ipso loquitor citing Omeziri vs. Oko (2004) 13 NWLR pt 890 page 287 at 299 per Rowland JCA, that a party need not specifically plead the doctrine of res ipsa loquitor but pleading facts leading to such a conclusion brings the maxim into consideration; thus the onus shifted with their pleading and establishment of the simple facts of rupture and of spillage. Consequently, the Judge stated that, “the plaintiffs have not proven spillage due to corrosion but do not need to…the defendants have to establish clearly that the spillage was not caused by corrosion, or further more being responsible for the security of the pipeline, establish the likely perpetrators if any of vandalisation. That would make the Defendants victims but the plaintiffs’ community remains victims regardless, not being at fault”.

The Court concluded that the rupture of defendants’ pipeline considering the evidence from both parties was “an unexplained occurrence” for which the defendants, whether as unfortunate victims or otherwise must take responsibility in the light of any consequence of such occurrence to the plaintiffs community. The Court thus held that the onus on the Defendant to show that there was no negligence on their part in light of the faulty construction of the pipeline sections in the area in question and the lack of application of industry standards of operation and maintenance of the relevant sections of pipelines in the Ubahu area particularly the crossing of Idodo River had not been discharged.

On the question of possible damage and destruction and the extent the plaintiffs in their pleadings and evidence particularized the consequences of the spillage from the ruptured pipeline on their community’s territory and assets; there was admitted in evidence the environmental impact assessment evaluation commissioned by the Enugu State Environmental Protection Agency, post spillage.

The Defendants’ response to the said report was that whatever post impact assessment and alleged recommendations attributed to Enugu State Environmental Protection Agency were ‘suborned’ reports and documents concluded by or at the instance of the plaintiff. One of the definitions the Court referred to was the Oxford Advance Learners Dictionary of current English 5th Edition of the word “suborn” which was defined as “to pay somebody or use other methods to persuade them to do something illegal especially to tell lies in a law court (as in to suborn a witness)”. The Court then raised questions as to evidence led by the defendants’ staff to show that the pipeline in question had been shut down for 6 months, also that Dual Purpose Kerosene (DPK) was the last product pumped through the ruptured pipeline and all that was left in it that leaked was “line fill” and that it was last used at about 3.00pm (1500 hours) on 15th February 1999 which was more than 6 months before the time of spillage. The Court observed that even if that were the case there was no evidence by way of a management memo or directive or company circular ordering same for a stated purpose and observed that if one were to accept their averments then one wonders why there was any “line fill” left in an axis known according to the testimonies of defendants’ staff “experienced numerous vandalisation” incidents and secondly observed the time of the shut down was not satisfactory established also.

The Court rather stated that the fact that there was a spillage was established, the question was now whether it was minimal as was alleged by the defendants or otherwise and whether the evidence to the contrary was ‘suborned’ as alleged by the defense team.

The Judge therefore held that it thus fell on the defendants to prove subornation which they did not as no evidence was led but rather the defendants since two years after the spillage incident and the institution of the suit commissioned a contractor under their payroll to produce a report in which they suggested only very temporary damage to aquatic life in Idodo River. Thus with nothing to besmirch the activity and report of Enugu State Environmental Agency, and taking into consideration the ‘circumstances’ of the report by the Defendants’ contractors, the Court held that the output of the commissioned surveys and assessments by the State Agency must be given their due weight as the impact study was tendered through an expert witness with obvious capability and competence.

The Court found the evidence led by the plaintiffs’ team to be graphic and did not require an expert to make sense of while that presented by the defendants was impenetrable and of “doubtful provenance”.

The community had asked the court to order NNPC to pay damages of N1.24 billion, with Mr. Nwasike arguing that “It is an internalized and necessary cost of doing potentially environmentally harmful business in accordance with the “polluter pays” principle….” He further argued that the United Nations Rio Declaration on Environment & Development (Principle 6) enjoins companies engaged in potentially polluting activities to internalize the environmental costs of their activities and put in place preventive measures. He emphasized that NNPC is “the richest public corporation in Nigeria, colossal in resources, but Lilliputian in responsibility and the responsible and efficient management of its facilities including refineries and this pipeline particularly”. The Plaintiffs need this money to recover from the reckless damages occasioned by this “care-less colossus”, he concluded.

Taking into consideration all the fore going in giving judgment in favour of the plaintiffs, the Court said “However we must in this socio-econo-political environment, exact a heavy discount on these estimations. We aim at salving injuries and instructing care and caution on the part of powerful operators of crucial and strategic infrastructure; rather than achieving full compensation of those who have suffered and the liquidation of corporations of vital national utilities”.

The Court in light of this awarded a total sum of N70million for special, general and exemplary damages. The Court however ordered the Defendants to replace the faultily constructed sections of pipelines traversing Ubahu Community territory particularly at the crossing of the Idodo River and to henceforth keep up Industry Operational Maintenance Standards in line with existing regulations and guidelines in relation to their pipelines network.

Did Matthew kill his wife?

The accused Mr. Mathew Okoli is charged with the murder of his wife Roseline, on or about the 20th August 2000 contrary to S. 319(4), of the Criminal Code cap 32, law of Lagos State. He pleads Not Guilty to the charge.

This no case submission is presented at the close of the prosecution’s case on behalf of the accused person in accordance with Section 286 Criminal Procedure Act, which allows any accused person who feels at the end of the prosecution’s case, that he has no case to answer, to make a no case submission.

Courts have laid out conditions where a no case submission can be properly made and upheld; viz, when (a) there is no evidence to prove an essential element in the alleged offence or (b) the evidence adduced by the prosecution witness has been so discredited and rendered unreliable by cross examination that it would be unsafe to convict on such evidence. Ajiboye vs. State (1994) 8 NWLR (part 364), page 587.

Whilst a defense counsel making a no case submission has to satisfy not all but either of the above (a or b) conditions, a review of the evidence adduced by the prosecution in this case would show that both conditions above-mentioned are satisfied in this case.

It has been held that in homicide cases the burden is on the prosecution to prove the cause of death either by direct evidence or by circumstantial evidence, which has the quality of not creating room for doubt or speculation. Akpan vs. State (1992) 6 NWLR (part 248) 469. Peter vs. State (1994) 5 NWLR (part 342) page 45 at page 62, paragraph F. Such circumstantial evidence should be cogent and compelling – see – Ubochi vs. State (1993) 8 NWLR part 314 page 697.

The prosecution must prove that;

(a) The deceased had died
(b) The death of the deceased was caused by the accused: and
(c) The act or omission of the accused, which caused the death of the deceased, was intentional with knowledge that death or grievous bodily harm was its probable consequences.
Whilst there is no contention with regards to (a) above, can the same be said for the cause of death by the accused (b)? The answer is NO! There has been no evidence whatsoever to prove that the deceased was either murdered by the accused, that the accused inflicted a stab on the deceased, or that the death was as a result of stabbing inflicted in the deceased by the accused.

It must first be established that it was the accused that assaulted the deceased, then secondly that the assault caused the death of the deceased (Onwukiru vs. State 1995 2 NWLR part 377, page 345)

2. CASE OF THE PROSECUTION

A general overview of the entire facts and evidence proffered in court shows that the prosecution has not placed before the court sufficient legal evidence (whether direct or circumstantial), to sustain the serious charge of murder brought against the accused.

The prosecution listed 12 witnesses (excluding the expert witness). At the closure of the case, the prosecution called only 4 of those witnesses and the expert witness. Other than the IPO PW5 and the Expert witness PW5, the other 3 witnesses called by the Prosecution are the children and brother of the deceased, although several other persons witnessed and followed the events of 20th August 2000 at critical periods. The Supreme Court advised in State Vs Edo 1991 7 NWLR (part 200) page 627 that evidence of members of family of deceased must be taken and received with caution. See also Peter vs. State 1994 5NWLR part 342 page 45, Hausa vs. State (1992) 1 NWLR (part 219) page 600. It was also evident from the evidence in court that two of the witnesses (PW1 and PW2) are under the influence and control of the third witness PW3, the brother of the deceased. PW3 admitted that the livelihood of PW1 & 2 are under his care.

An evaluation of the evidence before the court would highlight a questionable, disjointed, contradictory, evidence by the prosecution, further rendered unreliable by cross-examination that it would be unsafe for this Honourable Court of Justice to convict anyone on such evidence. See Ajiboye vs. State (1994) 8 NWLR part 364, page 587.

For a case to be made out against the accused, it must first be established that it was the accused who assaulted the deceased; then secondly that the assault caused the death of the deceased - Onwukiri vs. State 1995 NWLR part 377 page 345.

In its efforts to make a case and sustain this charge the prosecution anchored its case on 2 principal witnesses. Firstly, the daughter of the deceased Ujunwa Okoli (PW2) to prove that accused assaulted and therefore killed the deceased with a sharp object as allegedly confirmed to her and proven via an alleged dying declaration made by the deceased to her; and secondly, the expert witness Dr. G. A. Adewale (PW5), the pathologist whose Autopsy Report suggested that a sharp object was use to kill the deceased.

2.A. PW2 - MISS UJUNWA OKOLI

PW2, a daughter of the deceased testified that on August 20, 2000, she woke up by 6.55 a.m. and joined others who were washing clothes inside the compound but outside the house. An argument ensued which required confirmation from the deceased. PW2 and one Ms. Ebere Okoli (a witness listed but not called by the prosecution) were sent to the deceased together to confirm the story. When PW2 did not see the deceased in the bedroom, she went to the bathroom and saw her lying on the floor, “head was facing the wall underneath sink, washing hand basin”. She shouted, “mummy, mummy” but deceased “did not respond”. The deceased then “beckoned” to her with her hand, so she bent down. The deceased spoke to her in Igbo language that she should take care of her siblings and that they should live in harmony. That she should go and ask her father (the accused) why he had to kill her like a goat?

PW2 claimed that the deceased did not respond when she called her, however she said that the deceased “raised her head” and told her the above. On being informed by the deceased, she did not however look to see the slash that the deceased allegedly declared to her! She did not see any blood either. It is submitted that PW2 did not look because the deceased said no such thing, and there was no such injury as can be analogous to that you would find on a killed goat. A goat is killed by slashing the throat/neck not by an injury to the “inferomental region” (i.e. the lower chin), an injury that was confirmed by the expert medical evidence by the pathologist Dr. Adewale as a cut with the slight and skinny depth of 0.8 cm, shallow and not deep enough to reach the jaw or chin bone, or the tongue which lies in the mouth just above the lower chin, as there was no blood inside her mouth. The nature of injury pronounced by the so-called dying declaration is therefore not evident, nor is it consistent with the injury found on the chin of the deceased. The alleged declaration (“kill like a goat”) is a simile, i.e. a comparism allegedly made by the deceased descriptive of the nature of the injury. Incidentally, the nature, position, and severity of injury as revealed by the testimony of PW5) cannot compare with the slash on the throat of a goat killed with a knife or sharp object. It would amount to a mischievous exaggeration of the highest order to liken this injury to the slash on a goat killed by the neck with a sharp object. The injury does not support the alleged dying declaration. It is an exaggeration that flew further than the point.

Under examination-in-chief, PW2 testified that the deceased’s head was facing the wall under the wash hand basin and her leg closer to the door. Although it is physically impossible that the deceased could see her from that position stretched out on the floor, yet she testifies that the deceased in that position beckoned with her hand on her to come. PW2 testified that when she responded and came to the deceased, listened to the deceased compare the injury on her to that on a goat, she neither saw the injury nor blood (“there was no blood under the sink”. She testified that she only saw blood when the deceased was being moved out to the hospital. She never looked to see what she claims she was told, and she did not see the splash of blood that should have resulted from the kind of injury declared by the deceased. She does not see this injury as it was declared to her, nor bother to look for this injury. The implication is that she did not even look her mother in the face (!) to see the declared cut on her throat which from the position per the autopsy (inferomental region, i.e. lower chin) should be clearly visible.

There certainly was no spontaneous reaction to this gory declaration, as she testified that Ms. Ebere Okoli asked her what the deceased said and PW2 claims she told her. She also claims that Ms. Ebere Okoli then started screaming and shouted “Brother Chinedu”.

PW2 testifies that PW1, one Chinedu, one Ifeanyi, their driver, and one Ifeanyi rushed the deceased to the hospital. She testified that she saw the accused 10 minutes later at the hospital. She testified that she was shouting and screaming at the hospital that the accused had killed her mum. She also testifies that she was directed by the accused to go and call Mr. Ezu, a relative of theirs living at Kirikiri. She went but did not meet him at home but on her way back to the hospital, she met him on the way coming back from church and told Mr. Ezu what happened and that the accused wanted to see him. She testifies that she also told Mr. Ezu what her mother told her.

She also claims that she did not tell anybody in particular of their mother’s dying declaration but during her examination in chief, she said that she told Mr. Ezu, one of her relations that she obediently went to inform on the instruction of the accused. When questioned under cross examination if she informed any particular person of her mother’s dying declaration, she changed her story and stated that she did not tell any particular person until later in the night of the incident when she told members of her household at their residence.

Under cross-examination however, PW2 says she did not tell her uncle PW3 anything at the hospital (contradicting PW1 who said PW2 told PW3 immediately PW2 got to the hospital). In his own testimony PW3 says PW2 told him the story much later in the presence of the investigating policemen.

PW2 testified that he had seen the accused only once since the ordeal during a court appearance. She testifies that the accused did not plead with her, but rebuked her for having joined his persecutors.

The defence submits that the evidence of PW2 is unreliable, incoherent and impeachable This witness explained away the absence of spontaneity, unprompted and spur-of-the-moment shock at unexpectedly coming upon her dying or dead mother by stating she did not see any blood on the deceased at the time she came upon her. Her earliest opportunity to mention that the accused was the killer was at the hospital. She did not tell the Doctors/Nurses at the hospital. No explanation from her for this - see Emine Vs State, (supra) ratio 5.

PW2’s evidence is most unreliable. Her evidence on what she did, her calmness in listening to her mother in a critical condition approaching death, with a cut “like a goat” being killed was improbable and contrary to human nature. The only other person alleged to have seen the deceased at the point of death, and heard the alleged dying declaration, on Ebele Okoli was however not called – see Emine Vs State 1991 7 NWLR (part 204) page 480 (ratio 9) for the effect of this.

The case must therefore stand or fall depending on the veracity or falsity of her evidence – Emine Vs State {1991} 7 NWLR (PART 204) page 480@ 483 (ratio 3).

This major witness who was told by the deceased (but she did not see) about such a serious injury in an assumed prominent part of the body of the deceased, was however categorical and unequivocal in testifying under oath that she saw with her own eyes, and heard with her own ears, a piece of the Nigerian currency note, the Naira literally talking.

While a conviction for murder can stand on the evidence of a single witness, vide Section 178 Evidence Act, such a witness must be one that is credible and whose conduct does not give room for doubt.

2.B. PW5 - DR. ADEWOLE

It is evident from the testimony of this expert witness that the evidence of cause of death is inconclusive.

In Kalu vs. State 1993 3NWLR part 279 page 20, Onu JCA held that “it is not enough to show that the act of the accused could have caused the death of the deceased, the prosecution has the onus of proving that it did cause the death. Where the possibility of death by some other cause is not excluded, the accused is entitled to be acquitted. In this case the possibility of the death of the deceased by other causes cannot be excluded and so the appellant is entitled to be acquitted”. It should be noted that it has not even been established that the accused assaulted the deceased. See also Ndoma–Egba JCA at page 32-33 paragraph G – C - (Kalu vs. State 1993 3NWLR part 279 page 20).

Testifying in chief, PW5 stated that death resulted from excessive loss of blood or inadequate blood volume. He attributes this to the presence of a wound on the lower jaw with associated findings of a severe hypertensive heart condition. He testifies that the wound is not likely to be self-inflicted. He testified that the wound could be as a result of a knife, a pair of scissor “or even from a fall”.

Although he claimed in-chief that he signed out the Autopsy Report, he later recants that it was “signed out” by one of his colleagues. Notably, the IPO PW4 had earlier testified under cross-examination that it was Dr. G.A Adewole, PW5, who “signed and stamped” the Report for one Inspector Essiet and himself.

He further testified that the deceased had severe hypertensive heart disease, which would accelerate the death. PW5 admits under cross-examination that the deceased was hypertensive and it is not unusual to find a hypertensive person collapsing and dying.

PW5 debunks the testimonies of PW1, and PW3 that the injury was very deep. Under cross-examination he confirms that the depth was skin deep and not enough to reach the mouth, or the jawbone, which are directly beneath the position of the injury.

PW5 also admits that the injury is also consistent with a frontal fall, a statement inconsistent with his Autopsy Report, which did not disclose this. It has been held that when a witness made a prior statement in contradiction to his evidence in court sworn or otherwise, both the statement and the evidence in court are unreliable or are of very low probative value. Ajidahun vs. State 1991 9NWLR page 33 at 36 ratio 6.

He testifies under cross-examination that the wound sustained by the deceased could be accidental from a slip or as a result of a fall following (i.e. after) a cardiac arrest. It is not unlikely that death could have result from any of those causes, which he has not excluded. Where a matter is capable of being interpreted in a manner either favourable or unfavorable to an accused person, the court should lean in favour of the interpretation favourable to the accused person – Anyiam vs. State (1961) 1 SCNLR 78. See also Peter vs. State (supra at page 64, paragraph D. Where evidence is capable of two interpretations, the one favorable to the accused must be preferred. Daniel Vs State 1991 8 NWLR part 212 page 720 ratio 9.

As earlier submitted, it must first be established that it was the accused who assaulted the deceased; then secondly that the assault caused the death of the deceased - Onwukiri vs. State 1995 NWLR part 377 page 345.

The alleged dying declaration was introduced to prove that the accused assaulted the deceased. Was there really a dying declaration, and if there were, how valid is this declaration considering the position of the law on dying declarations. The evidence of PW5 would assist the court in resolving the sustainability of this allegation that there was a dying declaration.

The alleged dying declaration presupposes a knife was used to slash her throat – for that is the way goats are killed. Does the evidence support this? “Inferomental” means lower chin. As confirmed by the Expert witness PW5, wound did not go far to the mouth or the jaw or chin bone. There was no blood in her mouth. This is an injury that PW5 confirms can result from a frontal fall. Indeed the position in which the deceased was discovered facing down on the floor is consistent with, and reinforces the pathologist testimony that she sustained this injury from a frontal fall that left her in the position the children saw her. PW5 confirms that this is an injury that no person who sustains would believe himself likely to die from. PW5 confirms that a person sustaining this kind of injury would ordinarily get up to go and seek help.

The wound in the jaw would not prevent the accused from leaving the bathroom to seek help. No evidence of a severed throat, no evidence of struggle, blood splashing all over the bathroom, etc. no evidence of an attempt by the deceased to place her hands and apply pressure on the injury, or go out to attract help as is natural as confirmed by PW5 and commonsense. No evidence that she could have beckoned with her hands to PW2, or raised her head to speak to her. The dying declaration is therefore fatuous. PW5’s testimony supports the contention that she must have passed out as a result of a cardiac arrest before she fell.

A summation of PW5’s entire evidence confirms the following;
· that the deceased who was obese and additionally had severe hypertensive condition - as it were, a death from cardiac arrest waiting to happen;
· That the injury on the deceased could have resulted from other causes;
· That the injury was not deep as alleged,
· That the injury was not in the neck or throat as alleged by all the witnesses (PW1-PW4) and as allegedly compared to by the alleged declaration by the deceased. Consequently a dying declaration is questionable in this case as the nature of the injury found on the deceased was clearly dissimilar and divergent from what is claimed to have been declared by the deceased as the injury inflicted by the accused.
· That anyone who sustains this kind of injury would ordinarily get up and seek help, but the deceased did not;
· That anyone with an injury would use his hands to apply pressure on the point of injury except such a person losses consciousness (e.g. by cardiac arrest) before the fall;
· That the deceased was therefore likely to have lost consciousness before the fall.
· That a dying declaration is unlikely as the deceased could not have spoken to anyone considering the above circumstances.

2.C. PW1 - CHIBUIKE OKOLI
The first son of the deceased, he recounts in his evidence-in-chief that on August 17, 2002 (prior to the death of the deceased), there was a peace meeting convened at their residence where both the accused and the deceased, three brothers of the accused and himself were in attendance. The meeting resolved that peace should reign and that the accused should resume cohabitation as well as feeding at the residence of the accused and the deceased. PW1 further testified that on August 19, 2003, members of the household watched video film until 3. a.m. the next day, when they slept. The accused came out late at night to advise them to reduce the volume of the television.

On Sunday morning of August 20, 2003 at about 7.30 a.m., there was argument amongst the inhabitants of the house (excluding the accused and the deceased) regarding a certain sum of money picked from the ground which started to talk. PW2 (Ujunwa Okoli) and one Ms. Ebere Okoli were sent to confirm this story from the deceased. PW1 claims that after some time of PW2 and Ms. Ebere Okoli entering the deceased’s room, they heard some shouting coming from the deceased’s room. When they entered their mother’s room, they met PW2 and Ms. Ebere Okoli and the deceased inside the toilet en-suite the room. PW1 claims that she found the deceased’s head under the wash hand basin and her two legs on top of the toilet pit and there were sand on her body. She had a wrapper on but she was actually naked and there were faeces all over the place.

He said that they were confused and later carried her out into a bus and that while all these were happening, the accused did not come out until when they were about taking the deceased to the hospital.

He said that before her sister PW2 and Ms. Ebere Okoli went inside their mother’s room, the accused came out and he PW1 saw him standing by the fence, but did not know what he (accused) was doing there and the accused later went inside again. This information as vital as it is was not mentioned by this witness in the at least 3 statements he admitted that he made to the police during investigation.

He said that he saw a “ deep but not too wide cut” on the deceased’s “ throat” when he entered her room.

He said that the deceased was not conscious when he met her, and that PW2 told him that when PW2 and Miss Ebere Okoli went into the deceased’s room, the deceased signaled to PW2 to bend down while Miss Ebere Okoli was standing by the door and their mother told PW2 to ask the accused dad what she the deceased had done and why he killed her, and that the accused is a criminal. He said that that a few minutes later the accused gave up.

In the bus that took the deceased to the hospital, PW2, one Mr. Ifeanyi and PW1 were present. While at the hospital, he rushed to inform the deceased' brother Joseph Asuzu PW3 at his house. PW3 drove with him and his wife to the hospital. At the hospital, they went inside the hospital’s theatre, they saw that the deceased’s body had been covered with white cloth and PW3 was crying. He said that before they (PW1, PW3 and his wife) arrived at the hospital, the police were already there in the hospital. He testified that they were about 15 people that slept in the house on the night of the death, including the workers.
Although in his statement to the police at satellite Police station, he states that the accused on arrival at the hospital directed him to go and inform PW3 immediately, he denies same in his evidence in court.

Whilst being led in evidence in chief, PW1 testified that he had to turn the body of the deceased in order to be able to see the cut on her throat which was “very very deep” and blood was gushing from neck and blood was around where her head was lying.

Under cross-examination PW1 says he clearly saw the cut on the deceased’s neck when he got closer to the deceased and the injury was so prominent that he did not turn and did not need to turn the deceased to see the cut on her “throat”. He further states that he “does not know how deep the cut was but “know I saw a cut on her throat where blood was gushing out. Blood was around where her head was lying”.

PW2 who first saw the deceased however testified that she did not see any of this elaborated prominent injury and/or blood even after the deceased had declared to her words to the effect that she had been cut on the neck “like a goat”.

Furthermore, led in evidence, PW1 testified that PW2 told him of the dying declaration encounter with the deceased before the deceased died that morning. On cross-examination, he however says that PW2 narrated the incident to him later that night.

He further testifies under cross examination that “I did not tell my uncle (Joseph Asuzu – PW3) that my dad had killed my mum…When we got to the hospital, my uncle met Uju and Uju told him what she said she heard my mum say before my uncle now went into the theatre”. This contradicts the evidence of PW3 that PW2 told him the story in the presence of the police later in the day. PW2’s testimony is also contradicted.

PW1 testifies that policemen were already at the hospital when he arrived back with PW3, contradicting the evidence of PW3 that he PW3 invited the Police after his first visit to the hospital.

PW1 denies contrary to PW3’s testimony that PW3 has rendered any help to him since his mother’s death.

PW3 had testified that PW1 was “vehemently opposed to the idea that the couple should start sleeping together in the deceased’s room” but was forced to shut up by the father’s brothers (relations Anthony, Oliver and Michael Okoli). PW1’s opposition to his mum reconciling with his dad further portrays PW1’s bias against the accused, which bias and desperation is further evident in his statement that the accused is capable of further killing, and also adding as part of the alleged dying declaration that the accused is a criminal. PW1 lied and introduced himself as a student while testifying in chief. Under cross-examination however he admits that he has for several years (before the death of the deceased) been rusticated from school thus a school drop out. He changes from being a student to admitting “ I am not doing anything now”.

PW3 - CHIEF JOSEPH ASUZU
In his examnation-in-chief, he testifies that on August 20, 2000, PW1 came to his house and requested that PW3 should follow him to a nearby hospital, Faleti Hospital which he did after asking PW1 what happened and PW1 telling him that they took their mother there. At the hospital, he requested to see the doctor after introducing himself and he was taken to a place where the body the deceased was covered. PW3 uncovered the cloth and touched the body and discovered that there as no sign of any breath in the deceased. He also noticed a cut in her throat, which made him to cry. He claims that when he came out, he saw the accused laughing at him when he asked the accused what happened. PW3 testified that he slapped the accused and a fight erupted between them.

PW3 went to Trinity Police Station and reported the matter there. The policemen then went to the hospital to investigate (or arrested the accused). The police took all including the accused and their children to their police station. Trinity Police Station told them to take the matter to Agboju Police Station, where the incident took place. At Agboju Police Station, the witnesses were taken to 73 Banta Crescent, Agboju and the police made their own investigation. The police saw the blood and asked questions from the people living together the deceased, especially her children. It was Ujunwa who narrated the story for the police.

PW3 testified that PW2 told him that she moved into the toilet “and was terribly shocked to see her mother facing down in the pool of blood”.

He said that PW2 told him that the deceased motioned because she could not talk loudly, that PW2 should come nearer and the deceased said a few words to her and gave up.

In the hospital, PW3 saw the deceased children including her staff crying and holding their chests, hoping their mother would survive. Now when they heard that their mother was dead, they were inconsolable. “Their father was however smiling”.

PW3 claimed he saw the injury on the deceased’s neck and touched it himself and he suspected a sharp cut by something like a knife. He called the accused and asked him to see the cut and what happened? He just started smiling and then PW3 slapped the accused.

He further testified, “When this happened, for three months, they did not do their business. I started taking care of their feeding expenses”.

On the day of the incident when PW3 first got to the hospital, he did not see any policemen, contradicting PW1’s testimony. Further contradicting PW1’s testimony, he says that it was not at the hospital that he first heard the story of the dying declaration.

He provides a motive for the alleged crime, and possibly a conspirator to the crime by alleging that the accused killed the deceased in order to move in with the 2nd wife. The prosecution did not pursue nor investigate this.

In his statement to the Satellite Police station Exhibit P11 – 13, he states that PW1 and PW2 “were instructed by their father, Mr. Mathew Okoli to take her to Faleti Hospital Olodi, Apapa while he later came to meet them there with an Okada”. Also in his evidence at State CID Panti Exhibit P9 – 10, he admits that PW1 came to call him from his home to “under the instruction Chibuike’s (PW1) father Mathew Okoli (the accused). In his testimony however he denies that PW1 told him that the accused directed them (the children) to rush the deceased to the hospital. Under cross-examination PW3 denies but admits when shown his contradicting statement in Exhibit P13.

When a witness made a prior statement in contradiction to his evidence in court sworn or otherwise, both the statement and the evidence in court are unreliable or are of very low probative value. Ajidahun vs. State 1991 9NWLR page 33 at 36 ratio 6.

PW3 states here that the deceased told PW2 (Ujunwa) that her husband “murdered her with a knife”, a different version of this dying declaration.

PW3’s statement indicates no doubt that the night was peaceful for the accused and deceased. The accused even came to direct the children to reduce the volume of the TV set late at night. In the morning the deceased even gives money and directs an assistant to go to the market to purchase condiments to prepare food for members of the accused’s family who were visiting that Sunday.

PW3 in his statement dated September 19, 2001 (exhibit p6 – p8) admit that there was a second autopsy, but denies existence of it under cross-examination.

PW3 that he went and made a report to the police after he visited the hospital, who then returned with him to the hospital (Note that PW1 testified that Policemen were already at the hospital when PW1 arrived with PW3 and PW3’s family).

PW3 however say PW2 told him that “she moved in and was terribly shocked to see her mother in a pool of blood”, in contradiction with the evidence of PW2 in court and in her statements to the police. Clearly this pool of blood was a fallacious intro by PW3

PW4 - INSPECTOR SANWO ASAGBA

Findings and conclusions of PW4, the IPO are not supported by facts. His conclusions are inconsistent with the result of his investigation. The Investigation Report as a whole was improper and perverse - at best a work of fiction!

Albeit, PW2’s statements under interrogation by PW4 or by the other police formations that investigated the case, or her testimony in court disclose the presence of a pool of blood when she met the deceased in the bathroom, the Investigative Report (Exhibit 22) prepared by this witness after he interrogated the witnesses states that PW2 met the deceased in a pool of blood when she encountered the deceased in a pool of blood. PW4 testifies to this blood, but was unable under cross-examination to show where he got this information. Yet he denies that he did not manufacture the “pool of blood”.

PW4 interrogated the doctor (Dr. Faleti) who first attended to the deceased when she was brought to the hospital by the children (PW1, PW2 excluding the accused), and was told by Dr. Faleti that the children who first brought the deceased to his hospital reported that she had slipped in the bathroom. Although the prosecution did not deem it necessary to call this crucial witness, PW4 tendered his statement in court (Exhibit P15) as proof of his findings. Exhibit P5 is a report of what the doctor told PW4. PW4 did not however explain what he made of this information, and its effect on the outcome of his investigation. He simply ignored this vital piece of information that informed him that “history of the wound was that of a fall on her way to the bathroom and then she collapsed”. He also ignored to interrogate the nurses present at the hospital. In-spite of Dr Faleti’s statement that deceased children reported that their mother fell in the bathroom, PW4 presses ahead to reach his conclusions. Prosecution did not list this witness, and did not call him because they know that his testimony would be unfavorable to the prosecution. His testimony would destroy the fabricated dying declarations. The evidence the doctor whom the children (PW1 & PW2) first took the deceased to is necessary. The history of such a patient (“what happened?”) is often elicited by the doctor from the patient or those who brought the patient in for treatment. If a party to an action does not adduce evidence that he is supposed and has opportunity to adduce, then it may be presumed that the evidence will be against him if adduced. Section 148 (d) of the Evidence Act provides that the Court may presume “that evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it”.

Under cross-examination PW4 was unequivocal that he went to PW5 who signed the autopsy report and handed it over to himself and one Inspector Essiet. Under cross-examination, PW5 contradicts himself and the testimony of PW4, by recanting that he did not sign the copy of the Autopsy Report before the court.

Facts showing motive is relevant in a murder case. Were these proven? No. Rather PW4 ignores the lead supposedly provided by the statement of PW3, that the second wife of the accused played a role in the death. No effort is made to interrogate this person.

It is submitted that that where an investigation report by an IPO has no foundation on what he observed or was informed during investigation and interrogation, it is regarded as hearsay, fiction, and should be discountenanced by a court of law. Exhibit P22 bears no relevance or relationship with the facts thrown up in PW4’s interrogations as evidenced in the statements of the parties particularly PW2 and Dr. Faleti (Exhibit P15).

PW4 chose to speculate outside the evidence before him. Court cannot find the accused guilty based upon the “scraggy reasoning or perfunctory performance” of this witness. – (See Daniel Vs State, ratio 10).

It is noteworthy that PW4 is aware that this matter was re-investigated The new investigation report was not tendered, brought to the defense counsel’s attention, nor was the new IPO (who was at the inception of the trail ordered by the court to hand over the case files to the prosecution) called to testify. See Section 148 (d) Evidence Act.

SUBMISSIONS
The evidence by the prosecution witnesses has been shown to be so unreliable, and suffused with improbabilities, discrepancies, inconsistencies and contradictions. It is long established that where there are discrepancies in the evidence of witnesses, the court is not allowed to proffer an explanation for it. See Onubogu & Anor. vs. State (1974) 9SC1 at page 20. See also Etumionu vs. State (Supra).

Specific examples are highlighted hereunder.

a. PW1 under his evidence in chief, testifies that the deceased’s “head was under the wash-hand basin with blood” at the time he rushed to the scene. On the other hand, PW2 who first got to the testified under cross-examination that she saw no blood.

b. The injury was described by PW1 as a “deep cut on her throat”, contrary to the testimony of PW5 that injury was not on the throat but the “inferomental region”, and also as to the depth, that it did not go deep enough through the thin and fragile skin of the lower jaw to reach the jaw bone or the mouth. Exhibit …shows the location of the injury.

c. On further cross-examination PW1 testified that the cut in her throat was “very very deep”…and that “blood was gushing out from the cut”. This also contradicts the evidence of PW2 who would have seen the blood right away if it was gushing.

d. PW1 claims that they found the deceased lying on the floor with he two legs inside the water closet and her head under the washing bath basin of her master bedroom filled with blood. This evidence is not supported by the facts.

e. PW2 testified that the deceased did not respond when she called her. She becomes inconsistent when she adds that the deceased “when she finished speaking, she dropped her head”, implying that she raised her head to speak to her (in which event the presence of the wound and blood would not escape her attention).

f. Under cross-examination, PW3 denies that there was a second autopsy, in contradiction to his statement to the police (exhibit -?) that a second autopsy was carried out.

g. With regards to this controversial issue of multiple autopsies, PW4 stated during Examination in chief that he was in company of one Inspector Essiet when Dr. G. A. Adewale, PW5, duly stamped and signed out the Autopsy Report and handed over to Essiet who handed over to him. Although PW5 in his testimony in chief stated that he signed out the report, under cross-examination he recants that a colleague signed it out on his behalf.

While it is admitted that Medical evidence is not indispensable where there are facts, which show the cause of death to the satisfaction of the court. See Kalu vs. State 1993 3 NWLR part 279 page 20 at page 22 – ratio 4. As the facts in this case do not sufficiently show the cause of death, medical evidence is the necessary determinant of cause of death. Regrettably, a pall of doubt is cast on the weight to be accorded Exhibit….., the credibility, authenticity, and genuineness of that piece of evidence in determining conclusively what killed the deceased.

Under Cross Examination, PW3 stated that PW1 told him that it was not the accused that instructed them (PW1, 2, and the children) to take the deceased to the hospital. This contradicts his statement in Exhibit ….., (written statement made to State Police CID Panti) that the deceased was taken to hospital under the instruction of the Accused.

PW5 under cross-examination stated that Exhibit..was a detailed and conclusive document. On further cross-examination, information having significant effect on cause of death was unearthed and exposed. Such information as the fact that the injury could have been caused by a frontal fall, etc. The probability and indeed the likelihood of deceased’s death by other causes were uncovered.

“Where however the possibility of death by other causes is not excluded, the accused is entitled to be acquitted. In the instant case, before the appellants can be liable, there must be clear evidence that the death of the deceased was the direct result of the acts of the appellant to the exclusion of all other reasonable probable causes”. Ubachi vs. State (supra at page 714, paragraph G – H.

“In a situation where cause of death by other causes cannot be excluded, the accused person is entitled to be acquitted”.

Where a matter is capable of being interpreted in a manner either favourable or unfavorable to an accused person, the court should lean in favor of the interpretation favourable to the accused person – Anyiam vs. State (1961) 1 SCMR 78, Peter vs. State (Supra at page 64 part D).

PW3 states that PW2 told him that she met the deceased in a pool of blood. PW2 under cross-examination states she did not meet her mother in a pool of blood. She did not see blood even when her mother allegedly spoke to her.

PW1 testifies that PW2 told him that deceased had declared while dying that the accused killed her with a knife, and that the accused is a criminal. This is not consistent with the evidence of PW2.

PW1 contradicts his first statements to the police when he testified that the accused did not show any concern for the deceased because he did not come to assist them and he was not the one that instructed them take the deceased to hospital. In his first statement to the police, he reported that though the accused did not follow them immediately to the hospital, the accused instructed them to take the deceased to the Faleti Hospital. He further contradicts himself, PW2, and PW3 when he testified that it was not the accused that sent them to go and call PW3 and the relations of the deceased.

CONCLUSIONS

There is no evidence to prove that the accused killed the deceased. Where there is any evidence, the defense submits that the evidence adduced by the prosecutor is so manifestly unreliable and also discredited on cross-examination that no reasonable court could safely convict the accused. The evidence falls short of the requirement that there has to be abundant evidence on record which if un-contradicted and believed will be sufficient to prove the case against the accused; hence the filing of this no case submission. It is not enough that the evidence carries a suspicion, no matter how strong (Daniel Vs State at page 734).

It is evident that this case is based on circumstantial evidence. It is trite law that such factas probanda must be proved beyond reasonable doubt where there are contradictions, inconsistencies and discrepancies in the evidence. Circumstantial evidence must lead to an irresistible conclusion. “In a charge of murder it is not sufficient for the court to say if the accused is not the murderer, I know of no one who is. There is some evidence against him, and none against anyone else, therefore I find him guilty” - Ukorah Vs State (1977) 4SC 167.

Circumstantial evidence may ground a conviction while it is unequivocal, positive and points irresistible to the guilt of the accused person. Buje vs. State 1991 4 NWLR page 287 at 291 ratio 13. “Must be direct and must lead unequivocally and indisputable to the guilt of the accused”. See also Ajidahun vs. State 1991 9NWLR page 33. The circumstantial evidence in this case is not cogent and conclusive. The entire evidence leaves a is a preponderance of probabilities in this case that caste a reasonable doubt in the prosecution’s case.

The prosecution has not placed before the court sufficient legal evidence (whether direct or circumstantial), to sustain the charge preferred against the accused.

Furthermore, the evidence adduced by the prosecution witnesses has been so discredited and rendered unreliable by cross-examination that it would be unsafe to convict on such evidence. see Ajiboye vs. State (1994) 8 NWLR page 364, page 587.

Under our criminal jurisprudence, where there is doubt however minute or little by operation of law it must be resolved in favor of the person - Onolaja JCA in Onwukiru vs. State 1995 2 NWLR (part 377) 345.

“Where there lingers a doubt, acquit” – see Ibrahim Vs State 1993 2NWLR part 278 page 735 at 739 ratio 5, …for it is better to err on the side of acquittal when facts presented in a case are inconclusive or leave one with a margin of doubt – per Aniagolu JSC in Adesujo Akinkunmi & 2ors vs. State 1987 3SC page 152 at 168 or 1987 1NWLR part 52 page 608.

The conflicts, contradictions and inconsistencies in the evidence of the prosecution are material enough to create doubt in the mind of the court to sufficiently render evidence of the prosecution grossly short of the standard required to prove the serious offence of murder beyond reasonable doubt.

We pray that this Honourable Court of Justice sustains our no case submission. From the evidence of the principal witness given in court and statements made to the police, there are many unresolved inconsistencies and contradictions that calling the accused to defend himself against the prosecution’s case is tantamount to asking him to establish his innocence which offends the Fundamental Human Rights provisions of the Federal Republic of Nigeria constitution which presumes a person innocent until proved guilty by the prosecution – see Nwaeze v. State (1996) 2 NWLR Part 428 Page 3

The accused should be discharged and acquitted of the offense of murder, and his release ordered to enable him pick up the pieces left of his life.

Address against NNPC's pipelines practices

FACTS

The facts of the case in a nutshell is that the pipelines owned by the Defendants ruptured at a portion by the banks of the Idodo River that serves the Plaintiffs community, and petroleum products escaped and spilled into the river (which is the economic live wire of the Plaintiffs) and communal farmlands, causing damages to the Plaintiffs. The question of damage to the Plaintiffs was denied ab initio but later admitted by an expert witness DW2 called by the Defendants, although the quantum is disputed by his counter valuation as commissioned by the Defendants and prepared as this trial was ongoing.

Other than magnitude of damages, other issue in contention is who/what caused the rupture. The Defendants allege in their statement of defence that Plaintiffs vandalized Defendants pipelines. The Defendants are however unable to prove this allegation nor did they tender the result of any police investigation of the alleged criminal activity. With police forensic laboratory activity shunned by the Defendants, they engage their contractors to produce a questionable forensic report Exhibit L comprising x-rays to establish that a sharp object was used to hack open the pipeline.

ISSUES RAISED BY THE DEFENDANTS.

The defendants raised 5 issues for determination. The Plaintiffs respond accordingly as follows:

Issue of jurisdiction of the court to entertain the case in view of Section 12 (2) of the NNPC Act.

The Plaintiffs in their pleadings referred to a “requisite notice before this action” issued to the Defendants (paragraph 25 of their statement of claim). This notice tendered as Exhibit A1&2 were issued to the Defendants over a month before the action commenced; and in satisfaction of the above Section of the NNPC Act. The Defendants have not proved that the provisions of the act apply to the 2nd Defendant, a limited liability company. Nevertheless, the above exhibit satisfies the pre-action notice required by the Nigerian National Petroleum Corporation Act. The action was commenced over one month after the letter was written to the Defendants; and the cause of action, relief demanded, and the place of abode (Ubahu) of represented Plaintiffs is clear in the letter.

Be that as it may, in Kossen V. Savannah Bank (1995) 9 NWLR (part 420) @ page 439 (ration 6) the distinction was made between jurisdiction over subject matter (which in the subject matter of this suit is unlimited), and procedural jurisdiction which could be waived or acquiesced by the affected party. A line of authorities from the Supreme Court case of Ariori V. Elemo (1983) 1 SCNLR 1, have adopted this proposition.

Assuming therefore (without conceding though), that the pre-action notice issued to the defendants was not valid; the defendants are taken to have waived their rights by taking steps and part in the entire proceedings.

It was held in Elebute V. Faleke (1995) 2 NWLR Part 375 page 82), that person who is entitled to the benefit of a statutory provision may waive it and allow the transaction to proceed as though the provision did not exist (See ratios 7, 8, and 9)

The question of whether a party can waive a statutory or legal right was further answered in Odua Investment Co Ltd V. Talabi 1991 1 NWLR (Part 170) page 761. In this case, it was held that a party can by his conduct waive non-compliance by the adversary of the provisions of mandatory statutory provisions of the Sheriff and Civil Processes Act 1958 (sections 97, 98, and 99). According to Tobi JCA, “the party waiving need not state in specific language that he is waiving his right on a specific matter. Waiver is a matter of the individual’s conduct towards his known rights”. The court further held that “a mandatory statutory provision can be waived if the right is not shared by he party in common with the public but is personal and exclusive to him as an individual and once the party waives the right, the mandatory nature of the statute goes” The further pronouncements of Tobi JCA in page 780 paras. D-H is also referred to.

It is submitted that the mandatory statutory provision for pre-action notice is a provision that is not shared in common with the public, and therefore has been waived by the Defendants’ “conduct towards …(their)… known rights”, by full participation in the proceedings.

2. The second issue was a challenge by the Defendants of the representative capacity of the plaintiffs to institute this suit.

2.1 In Bubari v Oseni (supra) ratios 8 & 9 it was held (see page 582 paragraphs E – F) that represent action is not made of strict law which requires strict adherence and compliance. It is a rule of convenience. It is a rule that was originated for convenience and for the sake of convenience, its application in cases has been relaxed. It is therefore not to be treated as a rigid rule but as a flexible tool in the administration of justice.

See also Omorede v. Eleazu (1991) 4 NWLR (part 183) page 65 @ 75 para H where it was held that “the rule permitting representative action is a rule of convenience and as such ought not be treated with any rigidity, but used as a flexible tool of convenience in the administration of justice”. See also Anatogu v AG East Central State (1970) 11 SC 109.


See Court of Appeal in Bubari V. Oseni (1992) of NWLR (pt 237) page 557 (Tobi JCA at Page 582 paragraph F). This case followed the Supreme Court case in Melifonwu V. Egbuji (1982) 9SC 145.

2.2 It is now trite that the authority of a person to bring a representative action can only be challenged by way of preliminary objection or motion and not by defence.

In Walter Wiri V. Whebe (1980) 1SC1 at 19-20 the Supreme Court opined thus; “The law in this matter is thus: If the Defendant desire to question the authority of the Plaintiff to sue on behalf of a …. Community, it is not open for the defendant to raise the objection by way of defense but they should at an early stage of the proceedings move the court to strike out the name of the community”.

See also the Court of Appeal in Mbamaenyi V. Abosi (1995) 7 NWLR (PT 405) PAGE 54 Ratio 6: “A defendant is entitled to question the plaintiff’s authority to bring the action provided he raised the question by way of a preliminary objection or motion and not by defence”.

2.3 The representation is to prevent multiplicity of actions arising from the same transaction. The same question of law and facts emerge in this suit. The polluted Idodo River is common to the Defendants. They drink from it, fish from it, etc., and it is not disputed anywhere by the Defendants that the polluted river serves the community represented by the Plaintiffs. The plaintiffs thus have a communality of interest in what happens to their common source of drinking, fishing, and irrigation water. The plaintiffs, one the traditional head of the community, the other a prominent chief, in dual capacity for themselves and as representatives of the community are members of the aggrieved community of persons. To argue as the Defendants have done that the Plaintiffs cannot represent the class or community of persons of their community affected by the spillage is to encourage multiplicity of action, which our courts discourage. – Adeyemo v. Omobhude 1993 8 NWLR part 311 page 291 @ 301 para C

2.4 It is further submitted that the Defendants have not shown that any member represented by the Plaintiffs is in opposition to the suit being brought on their behalf. Defendants have not called any members of the group represented by the Plaintiff to challenge the capacity of the Plaintiffs or object to the named Plaintiffs representing them. It is long settled that the Defendant can challenge the Plaintiffs’ authority by showing a dissent or opposition by a member of the represented before the court.

The third issue raised by the Defendants is whether the spillage was due to (a) Defendants negligence or due to (b) Plaintiffs’ vandalisation.

3. A WAS SPILLAGE DUE TO NEGLIGENCE?

3. A.1. The answer to the first question under this issue is in the affirmative. It is submitted that the facts and circumstances in this case are more consistent with Defendant’s negligence in the operation of their pipelines (other than other causes) as responsible for the spillage

3. A.2. Plaintiffs pleaded, ab initio, ample particulars of negligence in their pleadings: (see paragraphs 8, 9, 28, 29, 30, 34 of the statement of claim). The following key phrases in the pleadings particularize the negligence: “pipelines not properly catered for “……” now old and corroded”…”shoddily and defectively constructed”.. ”improperly exposed to the elements failed to adopt standard precautions to guard against a recognized risk”…”Failed to deploy appropriate resources”… “conduct their pipelines operations imprudently”. These averments were proved in all material particulars during trail.

3. A.3. To succeed in an action for negligence, the Plaintiff must prove either on preponderance of evidence or on the balance of probability (a) that the defendant owed him a legal duty of care, (b) that the duty was breached, and (c) that he suffered damages arising from the breach (see – ANTS v. Atologe (1993) 6 NWLR part 298 page 233).

DUTY: The word “duty” in general parlance means what one is bound by any obligation to do. “In the context of the tort of negligence, it means a restriction of the defendant’s freedom of conduct, a restriction in which the defendant is placed by the law to behave as a reasonably careful person would have behaved in the circumstances of the case in anticipation of Lord Atkin’s neighbor in Donahue v. Stevenson (1932) AC 562” per Tobi JCA in ANTS v. Atologe (supra) at page 247 paragraph B-C.

It should be judicially acknowledged that petroleum pipeline operation carries with it a heavy risk and the existence and threat of damages. Any defective condition poses danger to “Lord Atkins’ neighbours” who would be directly adversely affected. The safety of communities bordering the pipelines therefore ought to be in contemplation by owners of the pipelines. The Defendants owe these communities through which their pipelines traverse a duty of care. In the course of this trail it was demonstrated that the Defendants have been and are still in contemptuous, disdainful, condescending, arrogant and snobbish disregard of the safety and wellbeing of their neighbours, the Plaintiffs.

Albeit defendants testified that the said pipeline was designed for a 40 years life span, PW2 testified that when standards are not followed, the pipelines begin to deteriorate faster than they would. He said “where the standards are not followed, the operator would be aware that damage could result to the public”. It stands to reason that the full lifespan is dependent on maintenance and proper installation. The pipe as observed during the visit to locus in quo and as testified by PW2, and exposed in Exhibits D1 – D6 had their metal surfaces exposed to the elements.
It is submitted that it was in the contemplation of the Defendants that by the manner they ran their pipelines operations, the damages claimed in this suit will likely result.

BREACH: The Plaintiffs proved that the pipelines are recklessly kept and maintained. Even the repair claimed to have been carried out after the spillage was unprofessionally, carelessly, and imprudently carried out. The risk of lethal consequences from further leakage is therefore high and substantial (for which the Plaintiffs herein have also asked for an injunction against the Defendants). The Plaintiffs proved that the Defendants have not exercised such skill or foresight as a reasonable man in its situation vested with such responsibility would. Albeit they later admitted some spillage and damage occurring via DW2, they gave no evidence of clean up operations, nor did they offer any form of reparation, restoration, restitution or compensation to the Plaintiffs.
PW2 gave ample and very credible evidence of the negligence of the Defendants; including exposure of pipeline, lack of concrete coating or anchor across the river, exposure of the metal of the pipe of one of the pipelines.
The regulations for laying pipelines were breached in many respects. Negligence was evident in the scruffy manner the pipes were kept – the worn out and peeling coverings, the lack of concrete encasement of the pipeline as it crossed the river, the fact of the pipeline not being buried or properly bridged across the river. The repairs are carried out in a shoddy manner and are evidently in a state of “another rupture waiting to happen”. There is negligence in the Defendants keeping its pipelines exposed in the manner it did; and leaving the right of way “covered by a forest”.
Defendants gave no evidence of the budget circle to be operated by the Defendants for this pipeline’s maintenance. PW2 testified that where pipelines are exposed it must be either within the piping or compressor station; or placed on “sleepers”.
He testified that the pipeline trace must have the right of way cut at regular intervals for the purpose of routine inspection. He testified under cross examination that “to determine the particular cause of rupture one would have a visional examination while scientific investigation is a secondary determinant. The pipeline operator would go with a camera as soon as the rupture is reported to capture the image at the point of rupture”. The Defendants did not go with any cameras, or are indeed keeping such pictures away from the court.
PW2 ended his testimony by stating that “the state I saw the pipeline (during the visit to the locus in quo) is an accident waiting to happen”!

It is an essential fact, not in dispute or contention that part of the Defendants’ duties to ensure safe operations is to clear the right of way. Defendants’ own witness DW1 stated in evidence that the point of rupture was under a thick forest (and could not be seen from aerial surveys conducted with helicopters by the Defendants). This is an admission that the right of way was not cleared and maintained as it ought to. He testifies that PW1 has since (during the currency of this suit) been engaged to start clearing the right of way. DW1 also stated that he did not know why the pipeline was exposed in the area (unlike in another area where erosion had exposed the pipeline). DW1 was basically admitting a gross breach of the duty of care they owe communities through which the pipelines under their care and management traverse.

Other than breach of their duty in tort, the Defendants were also in breach of standard duty imposed by industry regulations. This abandonment of operational standards was dwelt on extensively by PW2. He testified that the code established by the American Society of Mechanical Engineers (a Society he belongs to), the ASME Code B31. 4, is the standard for hydrocarbons pipelines transportation (DPK is a hydrocarbon). He testified that in addition to the Mineral Oil Safety Regulation 1963 (which adopts the ASME code), “..there have been other regulations”. Our Lordship is referred to one of such other regulations: The Oil & Gas Pipelines Regulations 1995 (subsidiary legislation to Oil Pipeline Act- see Cap 7 LFN 2004).

Juxtaposed against these statutory regulations guiding pipeline operations, it would be seen that Defendants operations and maintenance of these pipelines fell far below the minimum operational standards and regulations made to ensure safety of operations. The industry duties of care provided by these regulations were recklessly breached with ignominy.
An appraisal of the Defendants’ modus operandi measured against industry statutory regulations for maintenance and safety of pipelines is catalogued as follows:
Defendants submitted in their written address that the ASME code does not apply to pipelines transporting refined petroleum products.
Section 3 (1) (a) of Oil and Gas Pipeline Regulations provide inter alia that “the design of a pipeline for the purpose of these regulations shall be such that it shall be suitable for the transportation of liquid petroleum, including crude oil, refined products. Natural gas liquid condensate and liquefied petroleum gas”.
S. 4 (c) provides “ the design shall be in accordance with ANSI/ASME B31.4 -1979 standard code and any subsequent revision published by the American Society of Mechanical Engineers under the tithe “liquid Petroleum Transportation systems.
The pipeline in question, according to DWI (Mr. O.A.R Okere) had been out of use for over 6 months, but the Defendants left products on it (“line pipe”), leaving the pipeline susceptible to corrosion and the product therein susceptible to contamination. Note that under cross examination this same witness testified that this pipeline had been closed since his transfer in 1999, hence no “pigs” had been run on the section. Thus, this pipeline had been effectively shut down for at least 6 months, but more likely at least 2 years, with products left on it.
S.23 (4) (b) of Oil and Gas Pipeline Regulations provide that discontinued pipeline shall be “purged of petroleum liquid or gas by using water or inert material and cupped at both ends with moisture resistant materials”.
PW2 gave evidence of the absence of supports (“sleepers”) on the pipelines, exposed and running across the Idodo River surface.
S.5 (c) of Oil and Gas Pipelines Regulations provide that: “a surface pipeline shall be painted, raised and maintained above ground on permanent supports”.
There is evidence before the court that the pipelines run exposed across the river Idodo in an improper and obstructive manner.
S. 5 (d) (i) (supra) provides: “ the pipeline construction shall follow the steps outlined in chapter v of the ANSI/ASME B 31 -4 -1979 code and (ii) be carried out in a way that shall cause the least disturbance to the environment”.
PW2 gave evidence that the pipelines physically observed during the visit to the locus in quo did not satisfy this statutory operational safety requirement for burying underneath the ground and/or river bed. See also the pictures Exhibit D-D6 showing the exposed pipelines across the river.
Section 5 (h) (ii) (supra) provides: “the minimum soil coverage of a pipeline shall be in the case of a river crossing and river beds, 1 metre”.
DWI (OAR Okere, the Head of 2nd Defendant’s Right of Way Repair Team) testified under oath that a thick forest covered the point of rupture, and therefore that the point could not be seen by aerial surveys carried out with Defendants’ helicopters.
Section 9 (f) (operation and maintenance guidelines) (supra), provides: “the right of way shall be maintained to provide a clear visibility”.
The Defendants do not know the age of their pipeline, but rely merely on manufacturers’ claim that it is designed for a 40 year lifecycle to buttress their claim that the pipelines are properly maintained.
Section 17 Oil Pipelines Act CAP 7, LFN 2004 fixes duration of an oil pipeline license to a term not exceeding 20yrs in recognition of the susceptibility of the pipelines to become less fit regardless of manufacture’s claims due to corrosion, near and tear and lack of maintenance culture in our clime.
It is clear from all the above that the Defendants were in breach of their duties of care, and negligent in their operations. The damages would not have been caused but for the negligence of the Defendants. Their maintenance of the pipelines fell below acceptable levels of practice. They were in breach of duty of care by an unreasonable failure to achieve the standard of care required. Whilst the standard of care required in any given case is dependent on the magnitude of the risk, the Defendants did not discharge their burden to take adequate precautions to eliminate the risk of such magnitude.
It is submitted that Plaintiffs haven proved that the Defendants failed in all of the above regard to discharge their burden of care (as provided by their duty under tort and the industry regulations above enumerated), the Plaintiffs’ burden of proving the cause of the spillage is thereby discharged - See - Dungdale & Stanton – (Professional Negligence) (3rd Edition) Page 323 Para 15 – 27 line 3.

3. (B) WERE THE PIPELINES VANDALIZED BY THE PLAINTIFFS?

Despite the above gross negligent lapses, the Defendants allege that in their pleadings that the plaintiffs vandalized the pipelines. This allegation forms the foundation of the Defendant’s denial of negligence.

3. B.1. This Defendants’ plea of vandalisation by the plaintiffs was not supported by evidence, and is therefore deemed abandoned and cannot be acted upon by the court. See Achike JCA in Olabanji V Ajiboye 1992 1 NWLR (pt 218) page 473 (ratio 3).

Defendants also pleaded that Plaintiffs community “constantly tampered with the Defendant’s pipeline at odd times in the night when the Right of way monitoring team have closed work for the day”. They however failed to lead any evidence on this. The maintenance records (Exhibits M1-4) did not show any records of repairs of these tampering pleaded. Also, DW1 (the head of Defendants right of way repair team) testified contrary to the pleadings, under cross examination that “I have never visited this Ubahu community before this incident”.

3. B.2. Nevertheless, the Defendants commissioned their agents who prepared Exhibit L to prove vandalisation by persons unknown. The origin and validity of this document was called into question by the evidence of the two witnesses (DW4 and DW6) who claim to have played a role in the creation of this document. It is undoubtedly clear from the evidence of the witness DW4, John Diala that he did not visit the point of rupture and spillage, and therefore did not carry out the investigation. DW4 lied under oath when he said they drove their project vehicle up to the Idodo River bed across which the spillage occurred at a close distance. The visit to the locus in quo revealed that there was no vehicular access to the point of rupture, as also testified by DW1, Defendants’ Head of Right of Way Repair team who confirmed on cross examination that there is no access to the site of the incident by vehicle. DW6 (Shina Adekita) testified that he did not carry out the tests himself, but sent his colleagues who told him they had carried out the assignment. None of the other colleagues mentioned in Exhibit L were called to testify. Albeit DW6 claimed he signed the reports, his signature was missing from Exhibit L, and he testified that he had not gone through Exhibit L to determine if the contents were the same as the report that he endorsed. Exhibit L is therefore a worthless piece of document with no weight to be attached to it. It is an orphan with no integrity like the Defendants pipelines; and contrary to the Defendants submissions that Plaintiffs did not file a reply to contradict this document, or its plea, Plaintiffs submit that it is unnecessary to file a reply to contradict this plea in the defence because reply is not a mandatory requirement of pleadings. The rule of practice is that where no counter claim is filed, a reply is generally unnecessary if its sole object is to deny allegations contained in the statement of defense – Kawu JSC in Akeredolu V. Akinremi (1989) 3 NWLR (PT 108) at 172. See also Mohammed V. Kargester Nigeria Ltd (1996) 1NWLR (PART 422) page 54 ratios 1 & 2. In Olabanji V Ajiboye 1992 1 NWLR (Pt 218) page 473, (ratio 4) the Court of Appeal held that the primary role of a reply to a statement of defense is firstly to raise issue which must be pleaded by way of confession and admission and which has arisen as a result of the contents of the statement of defense, and secondly to make any admission which the plaintiff feels obliged to make. “Even if no reply is filed there is an implied joinder of issues where all material averments of fact in the amended statement of defense will be deemed to have been denied and put in issue”. Citing the old English case of Hall V. Eve (1876-77) 4 Ch. D. 341 & 345 the Court, quoted James L.J. who described reply as “the proper place for meeting the defense by confession and avoidance” The Defendants complaint is thus not well founded. See also – Sketch Publishing Co. V. Ajagbemokeferi (1989) NWLR (pt 100) 678,. BCCI V. D. Stephen Ind. Ltd 1992 3 NWLR paragraph 232 page 772 at 777 ratio 13.

3. B.3. According to Exhibit L and the testimony of DW6, a hacksaw or like instrument was used. Plaintiff submits that if a hacksaw was used, NEC technical systems (employers of DW4, and DW6) need not be engaged “in order to determine the cause of the spillage”. The court should take judicial notice of the fact that x-ray machines are usually employed to see what is not visible to the human eye. An ordinary still or video camera will have captured the image (as pointed out by PW2). It is submitted that the deployment of Ultra sonic high-tech x-ray machines shows the nature of the rupture was not capable of being captured by the human eye, as a hacksaw injury would have been. The brief by the defendants to their consultants was to find out not to confirm the cause of the spillage. According to DW4, John Diala while testifying in-chief, “PPMC called my company to come and carry out pipeline integrity to ascertain the cause of DPK spillage at Ubahu town”. The cause of the rupture was therefore ostensibly unknown to the Defendants and they needed to employ scientific method to find out.

The x-rays in Exhibit L do not satisfy the requirements of Section 90 Evidence Act. The maker of the x-rays is unknown. DW4 who tendered it did not claim to have made it; DW6 who testified on it did not. The authenticity of the document can derive from the signature of the person who made it, or someone supplying the information for the document. Section 90 (4) of the Evidence Act stipulates that the maker of the document must have authenticated it in writing if it is to be admissible. This is by his signature, initials, or writing. The x-rays with the entire Exhibit L should therefore be thrown out as being inadmissible.

3. B.4. There is no proof that the police who have the primary responsibility to investigate this crime, or their forensic laboratories and crime detection facilities were deployed. Rather the Defendants in desperation to throw the blame on the Plaintiffs deployed an acknowledged pipeline contractor to the Defendants to unilaterally carry out the investigation, and come up with the controversial Exhibit L.

Exhibit L is a document tending to prove the commission of a crime; prepared by Defendants’ agents without the involvement of Nigerian Police forensic experts. It should be reasonably expected and makes sense that the police would have been necessarily heavily involved in this crime scenario both for protection of the Defendants who visited to carry out repairs, their contractors who came with scanning equipments, and the pursuit of the criminals in the community who carried out the dastardly acts on the pipelines! There is no evidence that any member of the community was found with trucks or containers of petroleum products. The police were not called to testify on the result of their investigation of this alleged criminal activity, nor was any police report tendered by the Defendants. Judicial notice should be taken that a police report (on their investigation and findings) is available on this matter since the defendants pleaded and testified of the involvement of the police ab initio. The court is entitled to presume that any evidence which could be and is not produced would if produced be unfavorable to the party who withheld it. No Investigating Police Officer was called, nor an Investigation Report tendered by the Defendants. The court is therefore called upon to make the necessary presumption in accordance with Section 148 (d) of the Evidence Act. The Defendants have not made this report available to the court because to do so would show that no such vandalisation took place.

DW1 testified as to the involvement of a task force when this incident occurred. Nothing is heard of the output of this task force.

3. B.5. Furthermore, where the commission of a crime by a party to any proceedings is in issue in any cause or matter, civil or criminal, it must be proved beyond reasonable doubt. See Section 138 (1) Evidence Act. Defendants have not discharged their burden to prove this alleged criminal act.


4. The fourth issue is whether from the pleadings and evidence adduced, the plaintiffs have proved damages against the Defendants.


4.1. Special Damages: The Defendants while denying there was any damage at all, in the course of the proceedings turns round, and admits there are special damages through one of its contractors DW2 (Mr. Chiedozie Mbah, an Estate Surveyor), who is verbally (Exhibit K says so, but DW2 testified otherwise) instructed (as the case was ongoing) to do a “counter valuation” in response to Exhibit C/F prepared by the independent pollution consultants and valuation surveyors engaged by the Enugu State Environmental Protection Agency (Exhibits E, G, and C). As it were, DW2 was engaged to do some damages control.

It is submitted that Exhibit K tendered by the Defendant has admitted the issue of special damages caused to the Plaintiffs by the Defendants, but redefines the bone of contention to the scale of special damages. The Plaintiffs by Exhibit K have admitted damages, but guarantee to the Plaintiffs only the sum of N6,750,399.00 a figure DW2 cooked up after being told to do so by the Defendants in May 2004 as this trial was ongoing. Exhibit K produced years after the fact, and during the trail of this suit have little or no evidential value as far as the issue of quantum of damages is concerned as it is clearly prepared with a bias to reducing the Defendants liability. The circumstance for the preparation of Exhibit K, while this matter was sub judice does not warrant it to be a reliable and independent document. Since the case was ongoing, the Defendants had the objective and detached option of having a court appointed independent expert valuer on the issue.

Court is called upon to juxtapose the testimony of DW2 (and his Exhibit K prepared years after the incident), and the testimonies of PW5 and PW6 (and Exhibits F and C prepared just after the incident).

DW2 He testified that arriving the scene on May 11, 2004, and about 4 times thereafter he and his team “asked some of the community people around there because it had taken a while from when it happened”. A survey of a few “people around” the site of the incident years after the incident would certainly not give a full picture of the extent of damages. He also gave evidence on toxicity and water engineering – an area he has no expertise, being an estate agent. He admitted that “DPK hardly explode unless contaminated”. (Court is urged to take judicial notice of the frequently occurring, unexplained kerosene explosions in Nigeria involving Defendants DPK that has led to loss of lives notably in recent times in some states of Nigeria including Lagos, Edo, and Delta States).

DW2 also did not carry out a soil test, not being an expert on pollution of soils. DW2 an estate surveyor cannot testify as to soil damage. Court should not treat him as an expert. DW5 did not demonstrate specific skill in the soil pollution matters as demanded by Section 56(i) Evidence Act. The evidence of PW5 the pollution expert Mr. Ani Godwin Uchenna, who carried out a scientific investigation and soil tests, and the resultant part of Exhibit F and C is therefore unchallenged; and should be regarded as proven. In the Supreme Court case of Elf (Nig) Ltd V. Sillo (1994) 6 NWLR part 350 page 258 it was held that the standard of proof required in establishing the amount of damages claimed in a case where the evidence in support is unchallenged is that the burden on the plaintiff is discharged upon a minimum of proof. (ratio5).

It has been held in Adisa V. Afuye (1994) I NWLR Pt 318 page 75 that a trial court can validly rely on the ipse dixit of a plaintiff to assess damages when that evidence is not materially challenged and controverted. “If the owner of a tipper says he makes N110 per day, what the evidence would one need to establish that averment? Is it necessary to compel the maker of such a statement to produce receipt for such daily earnings? I think not” Per Sulu-Gambari JCA @ page 88 paragraphs A – B (supra). With the admission of damages by DW2, it is submitted that the non-production of damaged persons, items, receipts, etc will not affect the claim of damages.

DW2 admitted special damages and arrived at his figures although he did not provide any receipts. We urged the court to hold that the quantum of damages as appearing in Exhibits C and F with regards to the testimony of PW5 (the pollution expert) are not controverted, whilst the quantum therein as relating to the testimony of PW6 (the valuer), are not materially challenged.

4.2. General Damages: General damages are such that do not need to be strictly proved. They are distinct from special damages which denote those pecuniary losses which have crystallized in terms of each and value before trial as itemized in Exhibit F and C. They are such that the court may award where the court cannot point out any measure by which they are to be assessed except in the opinion of and judgment of a reasonable man.

The pipelines cross the river in a manner that still interferes with navigation. While not buried it is not exposed in the right manner by raising it sufficiently in “sleepers”. It remains a risk and a hindrance to the lively hood of an entire community.

The court will be right in estimating general damages. Ige JCA in Alele-Williams v. Sagay (1995) 5 NWLR part 396 page 441 @ 453 paragraph D stated thus: “Normally an appellate court can only interfere with an award under general damages if it is made under the wrong principles of law or the amount awarded is high or so low as to make the act an entirely erroneous estimate”.

4.3. Exemplary Damages: On this additional claim by the Plaintiffs the Court is referred to ratio 4 in Alele-Williams v. Sagay (1995) 5 NWLR part 396 page 441 @page 443 “Exemplary damagers on the other hand are damages which are in nature, awards made with a possible secondary object of punishing the defendant for his conduct in inflicting harm on the Plaintiff. They can be made in addition to the normal compensatory damages”.

Exemplary damages can be awarded in 3 cases. 1) Oppressive, arbitrary, or unconstitutional acts by government servants. 2) Defendants’ conduct calculated to make profit for himself which might exceed compensation payable to Plaintiffs, 3) expressly authorized by statute. Plaintiff’s claims for exemplary damages can be grounded under cases 1, & 2 above.

In Onagoruwa v. IGP (1991) 5 NWLR (part 113) page 593, Niki-Tobi JCA stated thus of exemplary damages: “It is designed to teach the defendant some hard lesson for the unusual and unexpected, inhuman and outrageous conduct so that the particular conduct does not come the way of the Defendant again”.

The Plaintiffs demand for exemplary damages from the Defendants due to Defendants deprecating, halfhearted, indifferent and lax modus operandi in the management and operation of potentially dangerous activity. The pipelines still remain exposed contrary to statutory regulations, even after repairs have been allegedly carried out by the Defendants. Defendants’ staff DW1 admits that the exposure of the pipeline at the Plaintiffs’ community is an anomaly he cannot explain existing elsewhere in this pipeline route as a result of erosion. After the visit to the locus in quo, PW2 described the state of the pipelines as an accident waiting to happen. The state of the pipelines continues to cause stress, worry, and anxiety. Even as the Defendants admitted damages via its DW2 (the estate surveyor it engaged during the trial), Defendants made no attempt to remediate the environment its activities degraded and damaged. It brings the law into disrepute if the defendants will be allowed to act with impunity.

“The (exemplary damages) would also serve as deterrence to others who may be tempted to behave in the way the defendants did” per Oguntade JCA in Calabar East Corp v. Ikot (1993) 8 NWLR (pt 311) page 324 @para G.


5. The fifth issue is whether plaintiffs’ various heads of claims (reliefs 1, 2, and 4) amount to a claim for Double Compensation.

5.1 There are several categories of damages. General damages are items of loss as are not within the definition of special damage. According to the learned authors of Bullen & Leakes & Jacobs, Precedents of Pleadings (The Common Law Library Number 5) 13th Edition, page 304, “one clear example of general damages is the damages awarded by the court for pain and suffering and loss of amenity”. (Paragraph 2, line 6). The Plaintiff is not required to specify this in its pleadings. They are such as the law will presume to be the direct natural or probably consequence of the action complained of – Stroms Bruks Aktie Bolag V Hutchinson (1905) AC 515.
Following the Supreme Court in Omonuwa V. Wahabi (1976) 4SC 37 at 50 the Court of Appeal held that “General damages on the other hand are damages which may be given when the Court cannot point out any measure by which they are to be assessed except on the opinion of the judgment of a reasonable man. see Umunwangho V. Umunwangho (1992) 2 NWLR Part 22 Page 709 at 714 paras D-E

Facts entitling the Plaintiff to all the heads of damages pleaded have been proved. The evidence available clearly justifies the special damages and in addition the general damages and exemplary damages. Plaintiff also claimed to be indemnified of the reasonable cost of their pursuing this litigation: considering the experts assembled by the plaintiffs. Plaintiff is entitled to be so indemnified of the huge costs it has expended to pursue this litigation against BIG corporations such as the Defendants. The four claims are made separately and are of different specie and can all be granted by the court.

It submitted that the objection of double compensation will be tenable where the various heads of claim are made in the alternative; otherwise the court should consider each claim where the findings warrant. See NAB V. Shuaibu (1991)4 NWLR (Pt 186) page 450 ratio 24.

In Imo Concord Hotel Ltd. V Justice Kalu Anya (1992)4 NWLR Pt 234 page 210 (ratio 9), it was held that where negligence is proved general damages may be awarded in addition to special damages.

In addition to special and general damages, Plaintiffs claimed for exemplary damages. According to the court in Alele-Williams v. Sagay (1995) 5 NWLR part 396 page 441 ratio 1 “It is not a case of double compensation. The special damages were for plaintiff’s properties which were damaged. The N10,500 were damages of another kind”. It is submitted that the items of damages claimed by the Plaintiffs in this action are of different species and therefore claimable and grantable.
6. CONCLUDING ARGUMENTS
6.1. The Defendants conceitedly pleaded that “by law and practice” they are not under obligation to compensate communities for vandalizing the Defendants pipelines and installations. They further pleaded that they will “at the trial lead evidence to show that the Plaintiffs and their agents assumed the risks and whatever alleged damages by their (Plaintiffs) own acts of tampering with and vandalizing the Defendants installations and pipeline”. Defendants led no evidence to prove the law and practice of not compensating communities that suffer from its operations. The corollary is that having failed to prove that Plaintiff’s or their agents vandalized the pipelines, and the law and practice of non-compensation to communities that provide them access for their pipelines, the Defendants are bound to compensate the plaintiffs.
6.2. The polluted river serves the entire community of Plaintiffs – drinking water, irrigation; fishing source owned commonly was polluted. The Defendants through DW2 acknowledged in Exhibit K that fishing and drinking water were affected by the spillage. PWI said of the polluted river “it is our only source of drinking water. We fish there; during the dry season we use the water from the river for irrigation”. He gave evidence that they are the main suppliers of fish to Enugu town”. He gave evidence that channels are broken from the river into farms up till March, and so at the time of the spillage about April, the irrigation channels into the farms were open and flowing.

6.2. The testimony of the Expert witnesses (DW2, DW4, and DW6) called by the Defendants should be treated with caution. They are contractors to the Defendants and cannot be independent on this issue. UWAIFO JCA had this to say of these kinds of experts; “I think there is good reason to treat the evidence of an expert called by a party in certain circumstances in some cases with studied caution. Some experts may be unduly influenced in their opinions by the prior briefing from those who seek their services” (UTB V. Awanzigana Enterprises Ltd. (1994) 6 NWLR (part 348) 56 at page 77, paragraph B.
DW4 testified that DW6 Shina Adekita was not present during the tests, and that one Mr. Edet Offeh was the supervisor. Although he testifies to being the number 2 man in terms of seniority during the tests, his name does not appear on the document. Contrary to the facts, and as stated by DWI that there is no vehicular access to the point of rupture, this witness (DW4) lied that he took the equipment to the river bed in their vehicle, and they carried out their inspection a distance of 30 meters at most from where their car was packed. He pointedly declared job was not executed by DW6 at the community. He said his boss Edet offeh supervised the job “the work was done under the supervision of my boss Edet Offeh, the project coordinator.

The experts are contractors/servants of the Defendant. The court should regard them as singing the uncoordinated opus of their paymasters, the ubiquitous and economic octopus NNPC.

6.3. In the event that the Court finds that the Plaintiffs were unable to prove the cause of spillage, the Court is called upon to rely on the principles of res ipsa loquitor which the Plaintiffs alternatively relied on in their pleadings (see paragraphs 28 and 31 of the Statement of Claim) to prove the negligence of the defendants as the cause of the spillage. The effect of these paragraphs is that “there is negligence inherent in the spillage”. No credible proof of vandalisation or otherwise, is before this court. No scientific test is required to prove that hacksaw was used to destroy a pipeline. The damage would be visible to the human eye and a camera; and the police report or camera capture of the scene of crime is nowhere to be found because nothing like that occurred. Thus where circumstances giving rise to the spillage is unknown or uncertain, the doctrine of res ipsa loquitor can be relied on. The court is therefore bound to consider this doctrine if the court reaches the conclusion that an “unknown event” caused the spillage. See Ibekendu v. Ike (1993) 6 NWLR part 299 page 287 @ 298-299 paragraphs F-B.

See also Babalakin JSC in Onwuka V. Omogui (1992) 3 NWLR (Pt 230) page 39 pages 415-416 paras H – B.

6.4. If there was any doubt about the negligent manner the Defendants maintain their pipelines, the visit to the locus in quo erased that doubt. “The purpose of inspection of the locus in quo is to clear any lingering doubts or ambiguities in the minds of the court…. It is to resolve any conflict in the evidence as to physical facts”. Per Karibe-Whyte JSC in Olusanmi V. Oshasona 1992 6 NWLR (Part 245) page 22 ratios 3 & 4.

Whilst the court’s observation at the locus in quo is not evidence. (Seismograph Services V. BE Onokpasa 1972 ALL NLR 347), additional evidence on the findings at the locus in quo was given by Plaintiff’s expert witness, PW2, and the court should believe this witness.
6.5. The United Nations Rio Declaration on Environment & Development (Principle 6) enjoins companies engaged in potentially polluting activities to internalize the environmental costs of their activities and put in place preventive measures. This principle, referred to as “polluter pays” principle is given effect in section 36 of Federal Environmental Protection Agency Act. The Defendants are thus enjoined by law and therefore presumed to have put in place the resource and capability to guard against and remediate the hazards of their engagement in an inherently dangerous activity, but they never deployed these resources or deployed them negligently.

6.6. We urge the Court to consider the totality of evidence before the court to determine which has weight and which has no weight; which facts are preferable, putting the two set of fact on an imaginary scale and weighed one against the other. Which fact would be preferred? Defense witnesses were economical with the truth. Instances abound such as the unsigned counter valuation document Exhibit K; the evidence by DW4 who claims to have driven in a vehicle to the point of rupture; withheld police reports, etc. etc. It is our submission that following a proper evaluation of the entire evidence, and on a balance of probabilities, the imaginary scale tilts in Plaintiff’s favor.

- see the Supreme Court case of Mogaji V Odofin (1984) SC 91 cited with approval in Kwasalba V Okonkwo (1992 1NWLR part 218 page 407;


6.5. N240million only was claimed as special and general damages. N1billion was claimed as exemplary damages. The Plaintiffs also asked for indemnity for cost expended in litigation; and also mandatory injunction on the Defendants to repair and/or replace the pipelines in accordance with standard industry practices and regulations.

We ask the court to ORDER the Defendants to pay the Plaintiffs this money. It is an internalized and necessary cost of doing potentially environmentally harmful business in accordance with the “polluter pays” principle above referred, and not too much a price for the Defendants, the richest public corporation in Nigeria, colossal in resources, but lilliputian in responsibility and the responsible and efficient management of its facilities including refineries and this pipeline particularly. The Plaintiffs need this money to recover from the reckless damages occasioned by this care-less colossus.