CASE TITLE: BIASE PLANTATION LTD v. IVERE LPELR-81076(CA)
JUDGMENT DATE: 23RD JANUARY, 2025
JUSTICES: AMINA AUDI WAMBAI, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A.
MOHAMMED LAWAL ABUBAKAR, J.C.A.
DIVISION: CALABAR
PRACTICE AREA: TORT LAW
FACTS:
This appeal borders on the Tort of Nuisance.
This appeal arose from the judgment of the Cross River State High Court, delivered on the 21st of May, 2019, by Hon. Justice Akon B. Ikpeme, which entered judgment in favour of the claimant (Respondent) against the defendant (appellant).
The Respondent had claimed against the Appellant, the following reliefs:
1. A DECLARATION that the defendant has not acted in consonance with and under due observation of requisite environmental health safety standards set for the nature of the activities it is carrying out and as stipulated in the relevant Environmental Laws operating in the country and applicable to its activities within its area of operation at Ibiae Oil Palm Estate in Akparavuni, Biase Local Government Area of Cross River State
2. A DECLARATION that the mindless devastation and massive degradation of the environment by the defendant through the excavation of the earth surface, the felling of trees and heavy logs, the deposition of debris, waste materials and other organic substances from the excavated earth surface, the fell trees and logs into the Uhom stream which led to the blockage and pollution of the stream, thereby causing the emission of poisonous chemical substances from the decomposed debris and organic materials deposited into the Uhom stream which led to the death of aquatic creature/lives inhabiting the stream and its environs, and which adversely affected the claimant, are wrongful, illegal, callous, malicious and against environmental health safety standards.
3. The sum of Fifty Million Naira (N50,000,000.00) only as special damages for the wanton pollution of the environment by the defendant and the destruction of aquatic lives, loss of income/earnings, inconveniences, and psychological torture arising from the defendant’s repeated acts of pollution of Uhom stream and its environs from which the Claimant’s farm is situated and from where he gets water for his farm use.
4. The sum of Two Hundred Million Naira (N200,000,000.00) only, being general damages for the hazardous activities of the defendant within the location of the Claimant’s farm, the destruction and degradation of the environment, the inconveniences and physiological torture and mental trauma suffered by the claimant as a result of the defendant’s repeated and mindless acts of pollution of the Uhom stream and its environs.
5. AN ORDER OF MANDATORY INJUNCTION restraining the defendant, its officers, servants, agents, assigns and privies from any further act of pollution of the environment where the Claimant’s farm is situated.
6. AN ORDER DIRECTING the defendant to forthwith prepare and present to the relevant government agencies for examination a comprehensive environmental report regarding its activities at Ibiae Oil Palm Estate in Biase Local Government Area and for its compliance thereby.
At trial, both the Respondent and the Appellant called two witnesses and tendered several exhibits. At the end of trial, the learned trial judge came to the conclusion that the Respondent proved his case of nuisance and accordingly entered judgment in his favour granting an order of injunction restraining the Appellant and his privies from further acts of pollution and awarding Four Million Naira (N4,000,000.00) in general damages, but refused the other reliefs.
Displeased with the judgment, the Appellant had approached the Court of Appeal.
ISSUE(S) FOR DETERMINATION:
The Court determined this appeal on a sole issue for determination thus:
“Whether having regards to the facts and circumstances of this case, the learned trial judge was right in granting an order of injunction and awarding the sum of Four Million Naira (N4,000,000.00) in general damages against the Appellant in favour of the Respondent.”
COUNSEL SUBMISSIONS:
The Appellant’s one, contention on his issue one, which complains of the grant of an order of injunction against the Appellant is that the nuisance having been abated by an extrajudicial remedy (means) by virtue of exhibit 7 in response to exhibits 2 and 3, which are the letters for request for the extra-judicial remedy of the abatement and which confirm the abatement of the pollution even before the institution of the action, an order of injunction ought not to have been granted, calling in aid the case of UMEOBI V. OTUKOYA (1978) N.S.C.C. Vol. 11, 241
Further, that the nuisance having been abated on 28/1/2014 (per exhibit 7) while the injunction was granted on 21/5/2019, an injunction cannot lie to prevent a completed act, Buhari & Ors v. Obasanjo & Ors. (2003) 11 S.C. 74 @ 88, and that such an order of injunction amounts to an order in vain, IWEKA V. S.C.O.A (2000) 3 S.C 21 @ 29, EKPENYONG V. NYONG (2012) 4 LC 521 @ 532.
Arguing per contra, the learned counsel for the respondent on his issue no. 1 referred to paragraphs 7-9 of the Respondent’s evidence in chief to contend that the case of Umeobi v. Otukoya (Supra), relied upon by the Appellant’s counsel to argue that the nuisance having been abated, the order of injunction was made in error, was an action in trespass in which the defendant forcefully entered into the Plaintiff’s shop and closed the opening hose erected without the plaintiff suffering any loss, which is distinguishable from and is inapplicable to the facts of this case. That the case of Umeobi v. Otukoya (Supra) was cited out of context, as cases are only authorities for the facts they decided, SUNKO (NIG). LTD v. SKYE BANK PLC (2017) 12 NWLR (Pt. 1579) 237 @ 236.
He submitted that at trial, the Respondent was only calling on the Court to make an order to restrain the defendant from carrying on further acts of nuisance that will destroy his farmland and affect his economic fortunes, and so it does not matter whether the previous act of nuisance was abated. What is important is that the defendant is stopped (restrained) from further acts of nuisance. Metuh v. FRN (2017) 11 NWLR (Pt. 1575) 157 at 184.,
It was also contended that the who parties were ad idem that the nuisance was carried out by the Appellant, who, if not restrained, would carry out the same or even worse nuisance over and over again as long as they remain in operation on the land, the case of Buhari & Ors. v. Obasanjo & Ors. (Supra) is distinguishable from this case, as the 1st and 2nd Respondents therein, having been sworn in, could no longer be prevented from being sworn in again. He submitted that the learnt trial judge, having held that the pollution was wrongful and illegal, the natural consequence was for the Court to make the consequential order of injunction which flows naturally from the declaratory relief (the 2nd relief) sought, GOLDMARK (NIG.) LTD V. IBAFON CO. LTD (2012) 10 NWLR (Pt. 1308) 291, 302.
DECISION/HELD:
The appeal lacked merit and was accordingly dismissed. The judgment of the trial Court was affirmed.
RATIO:
TORT – ABATEMENT OF NUISANCE: Whether abatement of nuisance absolves liability
“Furthermore, the quoted ratio does not support the Appellant’s contention that an extra-judicial abatement of nuisance precludes the grant of an injunction. The ratio relied upon by counsel reads:
“The defendant had committed no trespass, his removal of the plaintiff’s toilet installation being a lawful exercise by him of his extra-judicial remedy of abatement of nuisance, and therefore the order awarding damages against him and restraining him by injunction was wrongly made and must be set aside.”
Giving its linguistic and contextual meaning to this ratio, it simply means that in an action for trespass, the employment of an extra-judicial remedy in abatement of nuisance by a defendant whose property had been trespassed upon is a lawful exercise of his right to abate the nuisance and, being so justified, attracts no sanction from the Court. Neither damages nor an injunction lies against such a defendant. That is not the case wherein, in an action for nuisance, the nuisance is allegedly committed by the defendant to the detriment of the plaintiff and not by the plaintiff against the defendant; hence, the defendant may be liable in nuisance notwithstanding its abatement. Moreover, the Respondent has vehemently argued that the suit was based on the injury suffered between the commencement of the nuisance and its purported abatement. Certainly, the Respondent who has suffered injury from the nuisance even before its abatement has a cause of action against the Appellant.” Per WAMBAI, J.C.A.; hence,
To read the full judgment or similar judgments, subscribe to Prime or Primsol
