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.