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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> The Bodo Community & Ors v The Shell Petroleum Development Company of Nigeria Ltd [2014] EWHC 1973 (TCC) (20 June 2014)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2014/1973.html
Cite as: [2014] EWHC 1973 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE BODO COMMUNITY and OTHERS |
Claimant |
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| - and - |
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| THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED |
Defendant |
____________________
Charles Gibson QC, Adrian Briggs, Toby Riley-Smith and Abigail Cohen (instructed by Hogan Lovells) for the Defendant
Hearing date: 29-30 April and 1, 6-7 May 2014
____________________
Crown Copyright ©
- In this Group litigation, the many Claimants, numbering some 15,000 or more and including several representative type claimants and claims on behalf of children, seek damages at common law and statutory compensation under the law of Nigeria in relation to oil spills from pipelines said to have been caused by Shell Petroleum Development Company of Nigeria ("Shell" or "SPDC") in the Niger Delta and said to affect people living in or with connections to neighbouring areas known as Bodo and Gokana. Preliminary issues have been ordered and the Court has heard evidence of Nigerian law from two former Supreme Court judges, Justices Oguntade and Ayoola for the Claimants and Shell respectively, to whom, albeit that they disagreed on much, I am indebted.
- Before what is now known as Nigeria became a unified country, there were different tribal areas, including Hausa, Yoruba, Fulani, Igbo and Ogoni, the latter in the eastern Niger delta area. Well before the 19th Century, the territories which now make up Nigeria had systems of administration of justice. The northern area was strongly influenced by Muslim law, principally of the Maliki School, whilst the southern areas had systems of customary law. In 1862, the British established Lagos as a colony, indeed setting up a court there and English law was introduced by Ordinance the following year. In 1874, a separate government was set up for Lagos (and the Gold Coast) and the Supreme Court was established two years later over the areas in which the British Government had jurisdiction. A protectorate having been established by the British for much of the northern part of what is now Nigeria, in 1914 the Colony and Protectorate of Southern Nigeria and the Protectorate of Northern Nigeria were amalgamated. There were three tiers of court, the Supreme Court, provincial courts and native courts. By the Nigeria (Constitution) Order in Council 1954, a federal constitution was recognised with effect from 1 October 1954; the federation comprised the Northern, Western and Eastern Regions and a federal territory, Lagos. The 1954 Constitution established the Federal Supreme Court. Nigeria became independent on 1 October 1960.
- Following a long period of oil exploration, oil was discovered in January 1956 for the first time in Nigeria apparently in commercial quantities at one field in Oloibiri in the Niger Delta. At that time, Shell-BP had been the only or main concessionaire. It is clear that the Federal Government considered that it was necessary to provide a statutory framework for the creation of an oil industry, in particular for the transmission of any oil discovered. It relatively speedily introduced a bill which became the Oil Pipelines Act 1956 ("OPA") which came into effect on 4 October 1956. At the second reading of the bill on 2 August 1956, the Minister of Land, Mines and Power, Mr Muhammadu Ribadu, told the House of Representatives:
- There have been some amendments to the OPA. A Petroleum Act was passed in 1969 which amongst other things vested the ownership and control of all petroleum in the state.
- Shell from the start was and continues to be the single most dominant of the independent oil companies who have exploited the oil resources of Nigeria, much of it in the Niger delta area. There are thousands of kilometres of crude oil pipelines criss-crossing the delta region as well as numerous oil extraction areas and well heads. There are a number of refineries, the best known perhaps being that at Port Harcourt. It is clear that, over the more than 50 years since 1956, there have been a large number of oil spills, some at least of which have been the consequence of what is known as illegal bunkering which has involved criminal gangs who drill or otherwise break into the pipelines and extract crude oil with a view to refining it themselves and then selling it unofficially. Over the years, there have been numerous court proceedings in relation to oil spills against oil companies, in which Shell seem to appear often as defendant. These have been mostly proceedings by individuals, communities and other representative bodies for damages for nuisance, negligence and under the rule in Rylands v Fletcher as well as under the compensation provisions of the OPA. A substantial number of the cases have proceeded to appeals including to the Supreme Court of Nigeria.
- The Bodo community occupies an area south east of Port Harcourt, between it and the sea. It is in the Gokana Local Government Area in Rivers State. Much of the area is mangrove swamp and it is said to border a river known locally as the Bonny River; it may well be tidal and numerous rivers and streams bisect the area. There are some disputes as to the full geographical scope of the Bodo community area and as to who has what land rights. It is said that the area extends to some 9,230 hectares or about 35-36 square miles. There are 24" and 28" crude oil pipelines which run across the area.
- The claims in these proceedings relate to two crude oil spills from the 24" pipeline in the Bodo area said to have occurred between 28 August and 7 November 2008 and 7 December 2008 and 19 February 2009; the full extent of the spillages and their timing is in dispute. Subject to such disputes Shell admit liability under the OPA for these spillages.
- By agreement between the parties but subject to some jurisdictional reservations, these 13 sets of proceedings have been brought in the English Court, initially in the Queen's Bench Division but latterly transferred to the TCC. Various but not all related proceedings in the Nigerian Courts have been issued and I was told that some may have been suspended pending the decisions of this Court.
- Extensive pleadings have been served in the various sets of proceedings. In essence, the various Claimants base their claims on private and public nuisance, negligence, Rylands v Fletcher and under the OPA. Preliminary issues have been ordered, albeit by consent:
- The current Constitution of Nigeria is the "Constitution of the Federal Republic of Nigeria" introduced by the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1999. The Federation comprises 36 states with Abuja as the Federal Capital Territory. The "1999 Constitution" or "the Constitution", as it is called, was introduced by the then military government when a handover to civilian rule was to be brought in; it replaced the 1979 Constitution and there were some similar features. Section 1 of the Constitution established its supremacy. Section 1(3) enacted that:
- Sections 4, 5 and 6 of the Constitution vest legislative, executive and judicial powers in the National Assembly (the Senate and House of Representatives), the President and the Federal Courts. The laws of the National Assembly have primacy over those of the states and the National Assembly has power to make legislation from what is known as the "Exclusive Legislative List" and the "Concurrent Legislative List" but the states only have powers to legislate from the latter list.
- Chapter IV of the Constitution addresses "Fundamental Rights" such as Section 35(6):
- The Constitution in Chapter VII provides for the Supreme Court, the Court of Appeal and for the Federal High Court. The decisions of the Supreme Court are binding on lower courts but the Supreme Court is not bound by its own decisions.
- Although the Constitution does not itself lay this down, it is common ground that the sources of Nigerian law are the Constitution, Nigerian legislation, received English law, Nigerian customary law and Nigerian case law. Nigerian legislation comprises statutes, those being Acts of the National Assembly or State Houses of Assembly. Subsidiary legislation would include statutory regulations made under such Acts. Received English law comprises English common law, equity, statutes of general application in force in England on 1 January 1900, statutes and subsidiary legislation on specified matters and English law consisting of statutes (i.e. Acts of the UK Parliament and prerogative Orders in Council) introduced into Nigeria by English legislation before 1 October 1960 and not yet repealed by an appropriate authority in Nigeria. Section 32(1) of the Interpretation Act 1964 states:
- I accept Justice Ayoola's observation at paragraph 67 of his Third Report which stated:
- Similarly, it was not challenged that Nigerian Law adopts and applies the same principles of statutory interpretation as in England and Wales.
- There are regular and accepted law reports of cases at first instance both in state and federal courts, the Court of Appeal and in the Supreme Court and the Court here has been referred to many such cases. They are in English and are, particularly in the appellate courts, comprehensible and well set out. There is little current legal literature in Nigeria and what there is is not recent, albeit that what there is can be useful for research purposes; it is rarely used as a source of law itself.
- There is no dispute that the applicable law on all liability aspects is the law of Nigeria. In this country, as elsewhere, the Court has to receive evidence of that foreign law and for that reason each party deployed highly respected former Supreme Court Justices. I have to assess their valuable contributions about Nigerian Law as evidence but, unlike typical cases for instance about personal injuries in which a trial judge might test a witness evidence for instance by his or her demeanour or evasiveness, given their extensive and illustrious careers I can not decide the evidence on their credibility in that way but more on the intellectual weight of their opinions based primarily in reported Nigerian law, backed up by English Law given its incorporation into Nigerian Law.
- This is not a case in which it is appropriate for the Court to form a view that one Nigerian Law expert gave his evidence in a "better" way than the other. Justices Oguntade and Ayoola for the Claimants and Shell respectively were each Supreme Court Justices of distinction, albeit each now retired for some years. Each gave their evidence in as helpful a way as they could, in circumstances in which neither, as former judges, was particularly used to answering questions, let alone from the witness box. Justice Oguntade's reports were more general than those of Justice Ayoola, whose reports were particularly helpful in the detail to which they went and with the historical, legal, judicial and legislative background provided; I imply no criticism at all of Justice Oguntade's reports for being shorter and more general and they made easier reading accordingly. It is appropriate to adjudicate on their evidence on the basis of the strength of and support for the legal arguments which they each supported. I have taken into account however concessions made, mainly by Justice Oguntade, when questioned.
- It is common ground that the Court here must put itself into the position of the Supreme Court of Nigeria to decide in effect what that court would decide on the issues of Nigerian Law which need to be decided upon. It is not necessary for this Court to consider that it is bound by any Nigerian decisions as the Supreme Court of Nigeria is not bound by its own decisions. That said, very serious weight needs to be given by this Court to Nigerian Supreme Court decisions.
- This raises an issue, which has never apparently been raised let alone addressed or decided in any case in Nigeria, save possibly there was an oblique obiter hint in one first instance decision. The issue goes to whether the OPA provides an exclusive code for compensation for people affected by oil spillages, exclusive in the sense that the common law is excluded. It is common ground that, if it is not an exclusive code, there are potentially arguable causes of action by one or more of the thousands of claimants in respect of oil spillages or leakages in negligence, nuisance (both private and public) and in Rylands v Fletcher. There are numerous cases in which parties such as all or some of the respective Claimants in this case have sued oil companies (and often Shell) in the courts at common law, under the OPA or based on both approaches for oil spillages from pipelines and, whatever the outcome, whether it is a "win" for the claiming parties or not, the judges have never been asked to address this issue and have never raised this on their own motion. It is thus said that this should carry much weight against the proposition which is advanced by Shell that the OPA is an exclusive code. As in many jurisdictions, not least perhaps in England, the Court needs to address the intellectual merit of the argument in these circumstances because that merit has never been tested or ruled upon before. I can attach therefore little weight to the fact that it has never apparently occurred either to any practitioner in Nigeria in these sort of cases or to Shell or to any Nigerian judge of his or her own motion to raise or consider the point. If one reached the intellectually honest and supportable position that the OPA was an exclusive code for the recovery of compensation in oil spillages from pipelines in Nigeria or otherwise, then the fact that it had never been raised or addressed before could not in logic be used nonetheless to undermine that position. I will briefly review a number of the cases relied upon principally by the Claimants' Counsel and Justice Oguntade at Paragraph 66 below.
- As in this country, usually the courts address the bona fide disputes which emerge on the pleadings in the case before them. In most and possibly all the cases cited by Justice Oguntade in which the Nigerian Courts at various levels have dealt with oil spill compensation/damages cases it does not seem to have mattered whether the claim was put on a common law or statutory basis; no-one raised the issue as to whether the courts were jurisdictionally barred from hearing the common law claims. In Odiase and Anor v. Agho and ors [1972] 1 All N.L.R (Part 1) 170, 176 Lewis J.S.C in the lead judgment in the Supreme Court said:
- There is no express wording in the OPA which actually excludes the common law. Thus, for example, the wording does not say that for oil spillages from pipelines the common law is excluded or that it is the only compensation payable. It is common ground between Justices Oguntade and Ayoola, and rightly so, that what is needed here therefore to determine whether the common law or common law rights are excluded by the OPA is necessary implication from the words used in the statute and possibly also the context. They, and I, accept that there is a rebuttable presumption against legislative interference with the common law and that the same principles of statutory interpretation as apply in England and Wales apply in Nigeria.
- Professor A.E.W. Park albeit in 1968 wrote at page 50 in The Sources of Nigerian Law (Sweet & Maxwell):
- The Nigerian Supreme Court said in Awolowo v Shagari (1979) 6-9 SC 51:
- Another Supreme Court decision was Adeshina v Lemonu [1965] 1 ALL NLR 233 in which it was argued that a provision in the Minerals Act 1958 vesting property in all rivers, streams and watercourses in Nigeria in the Crown had overridden the public's common law right to fish in tidal waters. The Supreme Court held:
- In Craies on Legislation (10th ed., 2012), the author says:
- It is then legitimate in Nigerian Law to have regard to English jurisprudence to consider what factors should be taken into account to determine whether the rebuttable presumption that the common law is not ousted can be rebutted. In Marriage v East Norfolk Rivers Catchment Board [1950] 1 KB 284, the case related to the defendant, a statutory drainage board, which pursuant to powers under the Land Drainage Act 1930 had dredged spoil from a river depositing it on the bank thus raising the bank by 1-2 feet with the result that, following flooding of the river, water could not readily return to the river so that the plaintiff's mill property was damaged. The first instance judge had decided that there was no cause of action in nuisance or negligence because the only remedy was under section 34(3) of that Act. The Court of Appeal dismissed the appeal in judgments which are helpful and illustrative. Section 34 gave the boards wide powers to do extensive works in and around waterways and Section 34(3) stated:
- Material parts of the judgments are:
- In Monro v Revenue and Customs Commissioners [2008] EWCA Civ 306, the Court of Appeal addressed an issue as to whether a taxpayer only had a statutory remedy for the repayment of overpaid tax as opposed to a restitutionary claim at law. Lady Justice Arden said:
- This case built upon an earlier House of Lords case, Johnson v Unisys Ltd [2001] UKHL 13, where the court had to consider whether the Employment Rights Act 1996 provided an exclusive code which precluded an employee from seeking damages for wrongful dismissal at common law. The statute provided for limited compensation for unfair dismissal before an industrial tribunal. Such a common law right was precluded by the 1996 Act. As Lord Hoffman stated in the leading judgment:
- Halsbury's Laws of England (4th Ed 2001) states:
- Marcic v Thames Water Utilities Ltd [2003] UKHL 66 involved the flooding of the plaintiff's land with sewage discharged from the defendant's sewers, caused by overloading of the sewerage system, the defendant being the statutory undertaker under the Water Industry Act 1991, whereby its key duty of providing an effective sewerage system was to be enforced in the first instance by the "Director General of Water Services". The plaintiff sued for nuisance and for breach of the Human Rights Act. It was held that common law rights were superseded by the statute. Lord Nicholls in a leading judgment said:
- In Regina (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54, the Supreme Court addressed an issue whether the Secretary of State could sue for recovery of overpaid social security benefits by way of the common law other than via the statutory basis therefor. Sir John Dyson (as he then was) said:
- In Total Network SL v Revenue and Customs Commissioners [2008] UKHL 19, Lord Mance said at Paragraph 130:
- The Nigerian cases broadly reflect the thinking applied in those English cases. In Universal Trust Bank and others v Chief Oludotun Olajide Koleoso [2006] 18 NWLR 1, the Court of Appeal (Agbo JCA with whom the others agreed) said at page 15:
- In Harka Air Services (Nig) Ltd v Keazor (2011) LPELR 1353 (SC), the Supreme Court had to consider the impact of the Warsaw Convention (Air Carriers' Liability) on the common law personal injury claims of a claimant for the negligence of an air carrier. Adekeye JSC (who delivered the leading judgment) said at page 14:
- The Supreme Court had addressed the supercession issue in an earlier case, Patkun Industries Ltd v Niger Shoes Manufacturing Co Ltd 1988 NWLR 138, which involved a claim for infringement of trade marks and passing off and raised an issue as to whether the Federal Court had jurisdiction to entertain such an action; it was argued that the passing off claim was a common law claim and the State courts had jurisdiction. Section 3 of the Trade Marks Act 1965 stated:
- Karibi-Whyte JSC, giving the lead judgment, said at pages 152-3:
- One needs then to draw together the various strands of precedent and my conclusions on Nigerian Law are:
- To the above must be added by way of general observation the basic tenets of statutory interpretation. Primarily one looks at the words used to ascertain the meaning. If there is ambiguity, one can have regard to the legislature's debates (Pepper v Hart [1993] AC 593). One can have regard to the purpose of the statute either derived from the wording within the statute itself or from extraneous sources such as reports from for instance law commissioners' reports as to the mischief which the proposed legislation was designed to address (see Lord Browne-Wilkinson at page 630 in Pepper v Hart); this also applies to the terms in which the relevant minister introduced the legislation to the legislature (page 631 ibid).
- The OPA describes itself in its head note as "An Ordinance to make provision for licences to be granted for the establishment and maintenance of pipelines incidental and supplementary to oilfields and oil mining, and for purposes ancillary to such pipelines." Section 3 gives the Minster the power to grant "(a) permits to survey routes for oil pipelines; and (b) licences to construct, maintain and operate oil pipelines" with the proviso that "each licence shall be issued in respect of and authorise the construction, maintenance and operation of one pipeline only". Part II provides for the Minister to grant permits to survey the routes for oil or gas pipelines and for the entitlement of a permit holder to enter the land upon or reasonably close to the route specified in the permit and there survey, take levels, dig and bore into the soil and subsoil, to cut and remove trees and vegetation and to do all other necessary related acts (Sections 4 and 5). Section 6 provides for the permit holder to give notice before entering and sub-section (3) required it "to take all reasonable steps to avoid unnecessary damage to any land entered upon, and any buildings, crops or profitable trees thereon" and "to make compensation to the owners for any damage done to any land under such authority and not made good".
- Part III relates to the licences to be granted to the holder of a permit to survey and to such licensees in relation to oil pipelines. The minster may grant or refuse the licence (Section 7(2)). Sections 7(4) and (5) require that no one "other than the holder of a licence may construct, repair or maintain an oil pipeline" and that anyone who acts in contravention of this requirement shall be guilty of a criminal offence and liable to 2 years in prison or a fine and there are consequential provisions relating to the removal of any illegal pipeline. Section 8 relates to the application for a licence. Section 9 states:
- Section 11(5), with which this issue is most concerned, provides for compensation:
- Sub-section (6), added by amendment to the Oil Pipelines Act 1965, provided as follows:
- Sections 12, 14 and 15 impose restrictions on the licence holder such as not constructing works on the site of or within 50 yards of any public road, dam or reservoir or entering upon burial grounds or cemeteries. By Section 16, the licence holder is to provide, for owners or occupiers of land in respect of which the licence was granted and of adjoining land or for the accommodation of the users of any customary track, necessary crossings, bridges, culverts, drains or passages. Section 17 originally provided that licences could be granted for up to 99 years but was later altered to a maximum of 20 years. Sub-section (4) provided:
- Section 18 gave the Minister the power to permit a person other than the licence holder to use the pipeline.
- Part IV contains provisions which deal with compensation. Section 19 addresses what court has jurisdiction in relation to compensation:
- Section 20 is allied with the earlier provisions relating to compensation:
- The remaining sections in Part IV are of interest:
- Part V of the OPA addresses a number of miscellaneous matters including:
- The context of the OPA was, obviously, the discovery earlier in 1956 in the Niger Delta region of potentially large quantities of oil. There was undoubtedly a very real appreciation that this would be a critically important asset, as it has turned out to be. Geographically, this part of Nigeria was and is for a variety of reasons a difficult area to search for, extract and transport oil. These reasons include the fact that it is partly tidal, low lying and swampy, with large areas of water, in rivers, streams and ponds; the area was of course significantly populated. Justice Oguntade also said that it was known as a poor region and implicitly an area which was subject to significant criminal activity; I am not satisfied as to that as a matter of fact as there is no contemporaneous corroboration of that, albeit, as Section 11(5)(c) of the OPA suggests, malicious acts of third parties must have been anticipated as a real possibility. It was undoubtedly anticipated that there could be real difficulties in transporting any discovered and extracted oil and the OPA was designed to facilitate this. Of course, it was also appreciated (as is clear from the OPA itself) that people in the Delta would have land rights and interests in or over land affected by not just the running of pipelines across the Delta region but also by oil spills.
- There was much discussion as to the impact of Section 32 of the Interpretation Act, whose material words are: "…except in so far as other provision is made by any Federal law…the common law of England…shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria". The argument hinted at by Justice Ayoola and not wholly abandoned by Shell was that this was a strong pointer towards the common law being ousted where federal statutes addressed an area of endeavour, such as the OPA. Ultimately, Shell's Counsel in their final submissions (if they had not accepted it before), rightly accepted that this section simply acknowledges the principle of supercession, whereby statute can qualify or even remove common law rights and provided a "statutory platform for the controlled reception of the English Common Law in Nigeria" (in their final written submissions). One is therefore drawn back to interpretation of the OPA to determine if the Nigerian legislature intended to oust the common law.
- Justice Ayoola's thesis, repeated emphatically in both his reports as well as his oral testimony, was that the legislature introduced the OPA to provide an autonomous, comprehensive and federal framework in Nigeria to cover the surveying for, construction, maintenance and operation of the oil pipeline network system. He said in evidence that the OPA provided "a complete system on its own". Justice Oguntade, whilst effectively accepting that the OPA was an important piece of legislation, was firm in his view that it did not and need not provide some sort of exclusive code for compensation for oil spills and the like and that the common law remedies could co-exist side by side without any difficulty.
- The compensation scheme provided for by the OPA is very broadly drawn. When one examines the sub-heads of compensation within the sub-sections of Section 11(5), there are some parallels and some differences between it and the common law:
- It can be asked why the legislature needed to provide for compensation at all if common law rights were intended still to apply. The arsenal of common law rights would be fairly effective to protect the local people in the event of oil spills or other escapes, albeit that there are of course defences available to the alleged tortfeasor. Again, since the statutory effect of the granting of licences and of licencees installing, operating and maintaining the pipelines will inevitably be to render lawful these basic activities so that no tort is committed by simply doing what the OPA and the licence allows, basic claims in nuisance and trespass in respect of such activities will not in themselves be actionable as such. One then couples that with asking why the legislature might have intended to provide only a statutory remedy for nuisance and trespass cases but twin pronged (common law and statutory) remedies for negligence and Rylands v Fletcher. The answer points to there being an intention to provide only a statutory remedy for compensation for the injurious affection and damage caused by both the lawful activities as well as other heads of potential liability.
- One should ask whether the statutory regime provides a comprehensive framework. The only way, without legislation such as the OPA or by way of widespread compulsory acquisitions, that pipelines would or could legally have been installed in the Niger Delta would have been by way of doubtless many thousands of "deals" between the pipeline owners and people and communities along the proposed paths of thousands of kilometres of proposed pipeline, with the potential risk that individuals or communities could simply refuse to allow pipelines over their land. That it can be inferred was a factor which at this very early stage of the development of the oil industry in Nigeria encouraged the government to bring in this legislation and to provide a relatively simple and expeditious system of licensing and compensation in effect to reduce to eminently manageable proportions these types of risk.
- The statutory regime certainly covers the pipelines from the beginning (surveying routes), through licence to construct, operate and maintain, and the liability to pay compensation through to the end of the licence and the pipelines' removal or adoption and purchase by the Minister. Licences have to contain requirements for compliance with the OPA and some default provisions (see e.g. Section 17). There can be statutory regulations and indeed there are the Oil and Gas Pipelines Regulations (SI 14 of 1995) which contain clear, modern and stringent provisions for the design, construction and inspection of the pipelines and create an offence of non-compliance with the regulations with sanctions including fines and imprisonment including for directors, managers and other servants and agents of any body corporate committing the offence in question. There has been no suggestion that these regulations are ultra vires. Although I do not consider that these regulations made almost 40 years after the OPA came into force can readily, let alone easily, be used in the interpretation of the OPA, the fact that regulations could be made to specify in detail what was to be expected of licence holders at all stages of their involvement with the pipelines can undoubtedly be taken into account in the interpretation of the OPA.
- Specific requirements are laid down for compensation, not only to whom it is payable but also criteria for it are provided. Specific courts are designated for the hearing of any claims for compensation, albeit that the state courts originally designated are by operation of the Constitution designated as the Federal Courts, given the importance attached to the oil business in Nigeria. Unusually for a 1956 statute and in the days when payment into court was the only acknowledged way of protecting one's position on costs (see e.g. the (English) Annual Practice 1956 and well before that e.g. the 1948 Annual Practice), which Nigeria either had or it did not (history does not relate on the evidence in these proceedings), the OPA introduced a system whereby an offer could be made and, if not "beaten" by the amount decided upon as compensation, the court would be required to order the claimant to pay the licencee's costs or each party to bear its own costs. This underlines an aspect of the policy of the Act which was to encourage the parties to settle any claims for compensation. The wording at the end of Section 11(5) points towards the parties trying to agree the amount of compensation. Section 22 raises a presumption as to lawful entitlement of the lands affected say by spillages and places the onus of proving otherwise on the licence holder; that reverses the burden of proof in what would be an action in tort for damage for loss of use or enjoyment of land. That is not unimportant because, if the statutory and the common law remedies were to survive side by side, there would be an evidential presumption in one type of claim but not in the other.
- There are other important differences between the common law and the statutory regimes and remedies. Perhaps to lawyers and judges, one of the most striking is that a claimant under the OPA can return to the court, pursuant to the proviso to Section 20 for further loss and damage if it was not contemplated at the date of the original award. That would be on a common law claim anathema as it would run foul of the res judicata and issue estoppel principles that a party's judgment for a cause of action prevents or militates against the issue of further proceedings in respect of the same cause of action. Again, if the two approaches, statutory and common law, were to remain in tandem, it is at least odd that there would be a res judicata in respect of the common law action but not for the statutory one. One understands why the legislature did it, presumably because the long term effects, say of oil spillage, may be difficult to uncover or anticipate and many, for instance, of the Niger Delta claimants may not have access to the relevant expertise or the financial resources to take on full blown legal proceedings but could at least point to the then obvious damage to their land or crops or similar.
- The court may order compensation payable to individual claimants to be paid to the chief, headman or other community member if the interests injuriously affected are those of a local community. That goes against the norm that an ordinary party who is entitled to compensation by way of damages is entitled to those damages and, if that party is neither insane nor under age (in which case it will be paid to someone on their behalf), the court could not order the damages to go to anyone else. There is at least a potential but serious conflict between a common law claim for, say, nuisance and a claim under Section 11(5)(a) if the damages under one can be paid to only the claimant but under the other the possibly often self same quantum of compensation can be paid to the local headman.
- For the reasons indicated elsewhere in this judgment, primarily because Section 11 of the OPA is compensatory in nature, I am of the view that there are restrictions under Sections 11 and 20(2) as to the recovery by claimants of aggravated and exemplary damages, which might otherwise be recoverable through common law remedies. However, there is no harm done to the innocent claimant victims because they are still fully compensated, albeit that they do not get the bonus of aggravated and exemplary damages.
- In conclusion, I have formed the clear view and I find that the OPA does provide a sufficiently wide code to cover the whole operation of the searching for routes (the survey stage), the regulation of the licence holder by licence, by the statute itself and by statutory regulations, the taking possession of the requisite land, the construction, maintenance and operation of the pipeline, a broad largely causation based compensation scheme, specific procedures relating to compensation such as were not available elsewhere at the time and procedures at the end of the licence. The oil business was undoubtedly anticipated in 1956 to be of massive potential strategic and commercial importance to the country and it is reasonable to assume that the legislature felt that it needed to get effective procedures and mechanisms into place even before the oil business had really been fully proved to be the enormous business it became.
- I also find that under Nigerian law the common law has been superseded by the OPA in respect of the financial remedies available for land injuriously affected and for damage caused by neglect in the protection, maintenance and operation of the licensed pipelines or caused by a breakage or leakage of such pipelines (with the specified exceptions). My reasons (in addition to those referred to above are in summary):
- Various miscellaneous points have been made. It is said that some common law remedies must remain, such as injunctions, an example being an injunction sought by, say, a landowner onto whose land oil is continuously pumping out of a negligently constructed or maintained pipeline or a quia timet injunction if the damage has not happened but is threatened. Of course, compensation is payable under the statute and, as indicated in Section 20(7), continuing compensation can be ordered for damage caused by the continuing pollution. There are at least three answers to this point:
- In the context that in no reported case out of many to which the Court has been referred has the point raised in Issue 1 been raised by anyone, I indicated above that I would comment briefly on some of the many cases in which parties have claimed against oil pipeline operators for oil spills:
- Several of the above cases seem to have related to oil spills from installations other than pipelines licensed under the OPA. The Petroleum Act 1969 does provide for vesting all petroleum in the State, for licensing for oil exploration, prospecting and extraction and for overall control of petroleum products (including the sale and distribution within Nigeria). It contains important provisions regulating oil refineries. Regulations can be and have been made and various offences were created. There is nothing in the main part of the Act about compensation but the First Schedule provides for what should be in licences (Section 2). Paragraph 37 states that the holder of an oil exploration or prospecting licence or oil mining lease shall "be liable to pay fair compensation for the disturbance of surface or other rights to any person who owns or is in lawful occupation of the licensed or leased lands". It is unclear if or how this obligation can be enforced by such owners or occupiers, albeit the licensor could enforce it against the licencee, such that if the licencee did not compensate it would be in breach of the licence. The Petroleum Act clearly does not provide as wide a code as the OPA and the compensation provisions are much more limited. There has been no evidence as to why there are such differences between the regimes under the two Acts. One obvious point is that, whilst pipelines will criss-cross the Niger Delta, the refineries and oil fields themselves will be geophysically more confined than the pipelines.
- It is pertinent to observe that there must be substantial policy advantages if my view on this is correct. The test for compensation is simpler and largely a causation test. Apart from the malicious act of third party or own default defences (under Section 11(5)(c)), the compensation claims can be relatively simply mounted. Even neglect will, it seems from many Nigerian cases on the subject, attract the res ipsa loquitur doctrine, that is, on the basis that, absent third party interference, leakage or spillage should not occur unless there has been neglect, it of course being open still to the licence holder to seek to prove otherwise that there has been no neglect. Quantum being purely compensatory should be readily capable of being established. Settlement is clearly and expressly encouraged, which was novel in 1956. Cases can be mounted fairly simply; claimants can come back, after being awarded compensation once to claim again. The Federal Court can build up case law on the scope of recovery and the robustness of the causation test and control proceedings effectively.
- My answer to Issue 1 is "Yes".
- Section 11(5) states:
- There is no suggestion that Section 11(5)(a) is relevant to this issue; indeed if illegal bunkering criminals did by their actions "injuriously affect" innocent people's land, the licencee would not be liable because it would not have been its licensed activities which had caused the problem. Section 11(5)(c) is expressly concerned with the consequences, amongst other things, of any damage caused by the malicious act of third parties which would include criminals engaged in illegal bunkering. There is and can be no dispute that the licencee is not liable at least under this sub-provision in these circumstances.
- The issue really arises out of Section 11(5)(b) as to whether the neglect of the licencee to "protect" the pipeline requires the licencee to exercise reasonable care to "defend any such work, structure or thing executed under the licence from any harm, trouble or attack – including from attack by those individuals who might engage in illegal bunkering" as suggested by Justice Oguntade or there is a duty to take reasonable steps "to ensure that any work structure or thing executed under the licence is suitably protected against the inevitable wear and tear" as proposed by Justice Ayoola. Both experts agree, and I find, that "neglect" in this context equates to failure to exercise reasonable care and skill. It follows on this issue that Shell cannot be liable under Section 11(5)(b) simply because damage has been caused by the release of oil arising from the criminal activities. There must be neglect.
- Justice Oguntade takes his definition of "protect" from Collins English Dictionary: "to defend from trouble, harm, attack, etc". Chambers Dictionary however defines "protect" as: "shield from danger, injury, change, capture, loss; to defend; to strengthen…" The Shorter Oxford English Dictionary defines "protect" as: "1…to defend or guard from injury or danger; to shield; to keep safe, take care of…" The experts agree, properly, in the context of statutory interpretation, that:
- This is taken further in other cases. It is an established principle of statutory interpretation that statute provisions should be read as a whole and not in isolation, rather they should be read as a whole (see Awojugbagbe Light Industries Ltd v Chinukwe & Anor (1993) 1 NWLR 485, 510; Chime v Ude (1996) 7 NWLR (Pt 461) 379, 432; James Orubu v National Electoral Commission (1988) 5 NWLR (Pt 94) 323, Schroder & Co v Major & Co (1989) 2 NWLR (Pt 101) 1 at 12. Statutes should be construed in their ordinary sense (Universal Trust Bank v Innocent C. Ukpabia [2000] 8 NWLR 570, 580 (CA)).
- Other sections of the OPA provide some assistance:
- The nuance in the difference between the experts may be, on analysis, largely as between the Collins and the Chambers and Shorter Oxford definitions. It is important, in my judgment, based on the evidence of Nigerian Law to have regard to the context within the statute. That context is and must be that the oil was expected or hoped to be won from the Niger Delta area and that there could be a very large number of pipelines criss-crossing the Delta, which was home to numerous people, of whom many were poor. The OPA itself anticipated that there might be malicious acts of people to the pipeline causing oil spills and damage (see Clause 11(5)(c) itself). However, Justice Oguntade accepted, wholly, properly and logically, that there must be at least some limitation on the word "protect"; for instance, he accepted that the licencee would not have to defend the pipeline against military invasion. I do not accept that the word "protect" can mean "police" or paramilitarily defend because the licencee will not have and is not granted police powers and (I assume) cannot legally or generally carry offensive weapons such as guns.
- One then turns to the authorities. It is noticeable that there has been no verbal analysis in any of the Nigerian authorities of what the word "protect" means in Section 11(5)(b) of the OPA. A number of the cases address the defence of malicious act by third party in the context of Section 11(5)(c) and others are concerned with the impact of the doctrine of res ipsa loquitur and the burden and standard of proof in relation to the defence. The authorities shed some slight light on the issue however. There are three first instance decisions which at least illustrate the problem: Firibeb v SPDC (Suit No. FHC/PH/990/98 - 29 September 2006), John Holt Krebale and others v. Shell Petroleum Development Co Ltd (Suit No: FHC/ASB/CS/41/09) and Agadia & Uruesheyi v SPDC [HC/B/CS/166/2000, 27 July 2006].
- In Firibeb, a plaintiff sued Shell for damage to crops caused by an oil spillage apparently pursuant to Section 11(5) of the OPA. A primary defence was that the spillage was the result of sabotage or "vandalisation" by a third party. The first instance judge identified the sabotage/vandalisation issue as: "whether the Defendant has established the defence of malicious act of third party under section 11(5)(c) of the Oil Pipelines Act 1990". Nwodo J. set out Section 11(5)(b) and stated at Page 27 (set out verbatim):
- There was an appeal in Firibeb (7 December 2011), in which the underlined part of the judgment set out above was appealed against. T.O. Awotoye JCA, in the lead judgment said:
- In the John Holt Krebale case, the plaintiffs claimed for damage to farmland caused by an overflow of crude oil. Shell's defence was that the oil spillage was caused by explosives placed close to the pipeline in question. It is not perfectly clear what the pleaded cause of action was with negligence, Rylands v Fletcher and Section 11(5)(c) being mentioned in the judgment, but the judge did say (at Page 23) "the action is founded in negligence which is a cause of action founded in tort, thus anchoring their claim on the maxim "RES IPSA LOQUITUR" as well as the rule in RYLAND VS FLETCHER". He went on:
- The judge dismissed the claim finding (at Pages 25-6):
- The Agadia case related to damage caused to crops by "an outbreak of fire at Shell Station along their pipelines" (Page 2). Shell's defence was that the leakage had occurred as a result of an explosion caused by a third party. One of their witnesses is recorded as saying that "part of [Shell's] responsibility is to ensure that nobody tampers with the pipes" (Page 10). The claim seems to have been formulated on a res ipsa loquitur basis under Rylands v Fletcher. The judge referred to Sections 11(5)(c) of the OPA and 21(1) of the Federal Environmental Protection Agency Act which respectively provided defences of malicious third party acts and sabotage. Kolawole. J said at Page 29:
- These cases are interesting but in none of them did the judges grapple (or indeed were asked to grapple) with whether the defence of malicious third party interference was applicable to a case based on Section 11(5)(c) or whether an obligation " to protect the pipeline", as envisaged under Section 11(5)(b), covered guarding, albeit only with reasonable care, against acts of third parties. For instance in Firibeb, the judge talks about the maintenance and repair obligation but not about the construction and protection obligations. In all three cases, the judges were dealing with either negligence and/or Rylands v Fletcher type liabilities and were not applying their minds to the relationship if any between the two sub-sections and the malicious third party defence specifically available under sub-sub-section (c). One can see on the facts the reluctance of the judges to find Shell liable where the spillages have been caused by such interference either under each sub-section or at common law but that is comprehensible.
- Reliance is placed by Shell's Counsel and Justice Ayoola on the Oil and Gas Pipeline Regulations 1995 ("the 1995 Regulations") to assist in the interpretation of Section 11(5)(b). By statutory amendment in 1965 (Act 24/65), the Minister was enabled by regulation to prescribe "such matters relating to the construction, maintenance and operation of oil pipelines as the minister considers it necessary or appropriate to prescribe." This became Section 33(d) of the OPA. It can be said that "operation" covers any "protection" requirements. The Regulations cover pipeline design and construction, inspection and testing on completion, environmental protection and operating and maintenance guidelines and requirements. The word "protect" appears in numerous places, for instance in Paragraph 5(e) ("special precautions…to protect the pipelines from washouts, unstable soil, landslides or any other hazards…") and in requirements for the design, provision and maintenance of cathodic protection systems (Paragraphs 10, 11 and 12). Justice Ayoola particularly refers to Paragraph 9 which provide for extensive "operating and maintenance guidelines" for instance:
- There has been substantial disagreement between the parties' legal teams and experts about whether the regulations can be taken into account in interpreting the underlying statute. There is some authority on this. The Supreme Court in Nigeria said in Uhunmwagho v Okojie (1989) 3 NSCC (Part 3) 358 at Page 369 that:
- In The House of Lords case of Hanlon v Law Society [1981] AC 124, Lord Lowry summarised at Pages 193-4 when secondary legislation could assist the construction of primary legislation.
- Justice Oguntade says that in "Nigerian law, it is not permissible to resort to subsidiary legislation to determine the scope of the parent statute or to interpret the parent statute". He relies upon a dictum of Tabai JCA stated in Olanrewaju v Oyeyemi & Ors (2001) 2 NWLR 229:
- Finally, in terms of background, Justice Ayoola and Shell's Counsel suggest that, if the meaning of "protect in Section 11 (5)(b) is ambiguous, regard can be had to the debates on the statute back in 1956". Justice Ayoola says in his Third Report (Paragraph 241):
- I remain unconvinced that this really elucidates what was meant because this is consistent with simply referring to Clause 11(5)(c) and not what the words "neglect to protect" meant.
- Justice Oguntade relied heavily on a decision of the Dutch District Court (Akpan and Vereniging Milieudefensie v RDS and SPDC (C/09/337050, 30 January 2013)), an oil well spillage case (and not a pipeline case) to the effect that Nigerian law does not preclude liability for acts by third parties if an operator has failed to take reasonable measures to protect against such acts. The Court said (Paragraph 4.40):
- Judge Ayoola disagrees as to the relevance and utility of this decision. He points to the fact that it was a case solely in negligence and there was no analysis of the relevant provisions of the OPA; it is not a decision on what the word "protect" means in Section 11(5)(b). At Paragraph 109 of his Supplementary report he says that he does not consider that "the Nigerian Supreme Court would be greatly assisted by an analysis of the common law rather than the OPA, by a Dutch court with different traditions, making findings of Nigerian law on the basis of expert evidence". I have to say that I agree with him on this. Such a case partly depends on the expert evidence of Nigerian Law which was proffered and the detail of that is not fully available.
- Drawing all these threads together, my conclusions on this issue are:
- The answer to Issue 2 is strictly speaking "No"; there has to be neglect on the part of the licencee. It is conceivable however that neglect by the licencee in the protection of the pipeline (as defined above) which can be proved to be the enabling cause of preventable damage to the pipeline by people illegally engaged in bunkering which causes spillage could give rise to a liability; this may be difficult to prove but there is that theoretical possibility. I can not at the moment see that damage caused from illegal refining by criminal gangs of crude oil criminally taken from pipelines which have been broken into could fall within a duty "to protect…any work structure or thing executed under the licence" because (I assume) that the illegal refinery has not been executed under licence by the licencee.
- As drafted Issue 3 breaks down into two sub-issues relating to the recovery of general damages for what I can loosely call inconvenience and distress and to aggravated and exemplary damages. To this has been tacked on a sub-issue as to whether damages in the nature of "wayleave" damages are recoverable. The argument has revolved around whether Sections 11(5) and 20(2) of the OPA taken together provide for these heads of claim. Section 20(2) provides as follows:
- In one sense and to some extent, Section 20(2) does not add very much, because important parts of sub-sub-sections (a) to (e) largely replicate Section 11(5); thus, for example, sub-sub-sections (c) and (d) replicate verbatim most of sub-sub-sections (b) and (c) of Section 11. It is all prefaced by what the court considers "just". The location of the second comma in the initial two lines of Section 20(2) is of interest because it would suggest that the justness exercise is to be effected by reference to the sub-sections which follow; put another way, the justness exercise is not one conducted simply in the ether of judicial or common law experience or as some sort of general discretion. It must be compensation and it must be just, but in the context and by reference to the factors and matters set out in sub-sub-sections (a) to (e).
- Section 11(5) breaks down between the injurious affection requirement in Section 11(5)(a) and the damage required in Sections 11(5)(b) and (c). The injurious affection in Section 11(5)(a) equates to the effect on the land or land interest caused by whatever it is that the licencee has done pursuant to its licence. Injurious affection is and has been known legally, perhaps mostly in the field of compulsory purchase or expropriation and indeed in the tort of nuisance. It broadly means what it says and it relates to the harmful effects from a particular state of affairs or incident or series of incidents. In nuisance (in Nigeria and in this jurisdiction) it can cover an encroachment on to land, physical damage to land and interference with the comfortable use and enjoyment of land (see e.g. Clerk & Lindsell on Torts 20th ed Para 20-07). Therefore in the context of the current case, if X owns or is the tenant of land 300 metres away from the pipeline which leaks oil onto his or her land, that land will be injuriously affected; it may also be affected even if the leakage does not reach the land in question if, for instance, the smell is so overpowering that the enjoyment of the land is significantly affected.
- Moving on to what the meaning of "damage" in Sections 11(5)(b) and (c) is, Black's Law Dictionary (9th Ed) describes it as: "Loss or injury to person or property". Justice Ayoola adopts this as an appropriate definition; it seems to be unexceptionable and I accept it as a general definition. Injury to person is self explanatory and in practice this can include physical injury or illness as well as identifiable psychological harm. Injury to property could include physical damage to land or buildings. Loss in a personal sense could cover financial loss such as loss of earnings or in a property sense a diminution in the value of land or loss of rent.
- Justices Ayoola and Oguntade are agreed broadly (and I accept) that Sections 11 and 20 do not provide an open-ended entitlement to compensation. Justice Ayoola for instance says at Paragraphs 299 and 311 of his third report:
- There is however a distinction between "damages" and "compensation", albeit that they will often overlap. It is often said that damages are compensatory, although not always (for instance in relation to punitive or exemplary damages). Compensation obligations are usually imposed statutorily. The Nigerian Courts recognise this difference. In the Supreme Court case of Umudje and another v Shell-BP Dev Co (Nig) Ltd (1975) 9-11 SC 155, the Court was concerned with a claim for "a fair and reasonable compensation" for blockages to waterways and oil spills, albeit the pleadings related to negligence and Rylands v Fletcher. The court thought that it was inappropriate for the plaintiffs to have used that expression (Page 152) but Idigbe JSC went on at Page 163:
- This difference is recognised by the editors of Halsbury's Laws (Vol. 12(1) at Paragraph 815):
- Because "compensation" is usually, as here, a statutory remedy, it is to the statute that one must primarily go for a definition of what is encompassed by any right to compensation, albeit that may well be usefully informed by the common law. SPDC v Farah [1995] 3 NWLR 148 was a Court of Appeal decision relating to a blow-out from an oil well, the claim being under the Petroleum Act 1969 which provided for "fair and adequate compensation for the disturbance of surface and other rights of any person who owns or is in lawful occupation of the licensed or leased lands", there being nothing else which statutorily sought to explain what was encompassed by this expression. Edozie JCA, in the lead judgment, applied common law damages principles, saying at Page 192:
- I now turn to Section 20(2). Sub-sections (a) and (e) are obviously concerned with compensation for land which has been injuriously affected or otherwise damaged or impacted by the "exercise of rights" by the licencee. Sub-sections (3), (4) and (5) further influence how the compensation exercise is to be done in relation to land. I am not in a position on the evidence before me to decide what if any land rights or interests are covered by Section 11(5)(a) and these sub-sections and which if any of the various types of claimant has a right to such compensation. Sub-section (a) is obviously concerned with physical damage "done to buildings, crops or profitable trees". Sub-section (e) is self explanatory.
- Sub-section (b) ("any disturbance caused by" the licencee in the exercise of its licence rights) gives rise to a sharp difference between the experts, with Justice Oguntade adopting a broad definition and Justice Ayoola a much narrower one. Justice Ayoola has carried out an impressive analysis of the likely meaning of the word, which he says at Paragraph 288 of his third report relates to interference with rights over or interests in land. He identifies that the word is used twice. Section 20(1) firstly provides the basis for the assessment of compensation awarded under section 6(3) ("damage to any land entered upon and any buildings, crops or profitable trees thereon, shall make compensation to the owners or occupiers for any damage done under such authority and not made good"), stating:
- That certainly provides a strong, if not conclusive, pointer to what it means in the following sub-paragraph. I can certainly see no obvious drafting or policy reason why it should mean something different. Justice Ayoola refers to various cases under other statutes including the Farah case. Following the quotation set out above, Edozie JCA continued:
- He also refers to Williams v Kamson [1968] 1 All N. L. R 399; [1968] 5 NSCC 313, 319, which involved a claim under the Public Lands Acquisition Act (CAP 167) in respect of compensation for a compulsory purchase of various buildings. The Supreme Court referred (at Page 406) to a decision (Maja v Chief Secretary to Government 12 WACA 392) as saying that an "award will not be made for disturbances"; Ademola CJN went on:
- Justice Oguntade had little analysis of the meaning of "disturbance" in his first report but he responded to Justice Ayoola's third report at Paragraphs 111-113 of his Supplementary report. He points to the fact that Section 20(2)(b), in contrast to Sections 20(2)(a) and (e) is not confined by express reference to land, which he says "suggests that its application is broader". He goes on to express the view that "disturbance" refers to the exercise of rights, including the rights to fish in tidal waterways (and therefore loss of income claims) which are routinely claimed and awarded in Nigerian oil spill cases." He goes on to say that it covers mental disturbance, pointing to the Farah decision in which the Court of Appeal upheld an award of general damages for shock and fear or general inconvenience.
- Justice Oguntade appeared to row back on this under cross-examination (Day 2 Transcript Page 33 lines 6-11):
- There is much authority on compensation and damages awarded for what at common law would be called general damages but little analysis about what Sections 20(2) and 11(5) actually covers. I am not, in the slightest, critical, about the Nigerian Courts in this context because they were often not being asked, and did not need, to carry out such analysis. For instance, the Courts often rely on valuers' evidence which often seeks to quantify general damages for inconvenience, distress, shock and fear, loss of amenity and the like and there has often been no issue that something is due, although one side or other will be asserting that it should be more or less.
- There are some first instance Federal High Court decisions on claims under the OPA but they do not assist much on the preliminary issues in this case. In Phnye v SPDC (unreported, 2 August 2006, FHC/PH/376/97), the Court was concerned with a claim for compensation for oil spillage onto the plaintiff's land, damaging a fish pond and traps, palms and trees. The judge awarded N700,000 "for the damage to fish ponds and land" (page 26). It is clear that the judge was addressing Sections 20(2)(d) and (e). He said:
- There is much discussion in the cases in Nigeria about whether damages or compensation falls within the expressions "general" or "special" damages and I suspect that it is not necessary for the purposes of the statutory right to compensation under the OPA to make this classification. The judge in Phnye went on to say that an "award of general damages calls for some measure of quantification and careful exercise of judicial discretion" (Page 25) but he does not go on to explain how he reached the figure of N700,000, although he talks about the need to restore 10 fish ponds. The award equates to some £3,000 in sterling at the time but the cost of living and wages in Nigeria are probably significantly lower than in the UK. I do not see why at least a claim for the restoration of fish ponds could not be formulated as a claim for special damages in that the cost of physical work involved in removing the oil from the ponds and cleaning them out before reinstating them for use with fish re-stocking could be quantified. Whatever the basis in Phnye, the compensation related to damage to land.
- The Agadia case does not help as the claim failed on liability grounds. The Firibeb case, referred to earlier, related to a general damages claim (N31.835m), for loss of cassava, vegetable crops, palms and timber and loss in fish harvest caused by oil spillage onto family land. With no explanation in the judgment, having found liability, the judge awarded N1m. It is clear that nothing was claimed for distress and inconvenience, shock or fear or the like.
- In similar vein is the case of Chief Omu & others v SPDC (Federal High Court 21 November 2007) where the plaintiffs representing themselves and others claimed for damage to fish equipment and fish farms caused by oil spillage. N15m was claimed for "special and general damages for loss of their fishing property, loss of fishing rights and inconveniences". Shell had paid out some compensation. The judge found that the plaintiffs had not proved "special damage". Apart from an issue about the representative capacity in which the plaintiffs sued, there seems to have been no liability issues. The plaintiffs did not apparently argue their case based on the OPA although the judge referred to Section 11(5)(c). The judge said:
- One strongly has the impression that what the judges are doing, wholly understandably, is making assessments, as general damages, of loss which they are confident has been incurred but which often impecunious plaintiffs are not able to prove formally as special damage. In fact, that is what the courts in England and Wales do when it is clear that significant loss has been incurred but it is difficult to quantify; the courts do the best that they can, albeit that here one would not and would not habitually need to classify it as special or general damages. This is broadly the approach proposed by Vaughan Williams LJ in Chaplin v Hicks [1911] 2 KB 786 at 792:
- Justice Oguntade refers to a number of cases in which general damages have been allowed for inconvenience and distress and the like but these need to be considered in the light of the fact that no distinction has been drawn between compensation under the OPA and at common law, often because nobody has taken the point. The most marked is the Farah case, but, although it is not directly on point as it was a claim under the Petroleum Act, it has some value to the current case. The claim was a representative claim by 8 individuals for themselves, 5 families (whose land was most affected) and a Local Government Area. N26.9m, quantified in an expert valuation report, was claimed. It related to an oil blow-out from an oil well in 1970; the proceedings being issued in 1989. Shell did some rehabilitation work and some compensation was paid. The judge awarded N4,621,307, over N2.3m being for lost income over 21 years and N2m for land rehabilitation. N250,000 was awarded for "shock, fear and general inconvenience". There were issues such as whether the two larger allowances were duplicative and whether there was an estoppel in relation to the earlier payments. Referees had been appointed by the court to consider quantum matters. Material parts of the leading judgment (other than those set out earlier) in the Court of Appeal are:
- The three cited cases were claims for negligence where the plaintiffs recovered personal injury damages for a recognisable psychiatric disorder. The reference to the recovery of non-pecuniary losses for "annoyance, inconvenience, discomfort or even illness to the plaintiff occupier" in nuisance on analysis relates to a loss of amenity associated with ownership or rights in or over land affected by a given nuisance. There is not a stand-alone right to damages for annoyance etc for someone who has no rights over land. In English law, there is much authority that such amenity loss can be compensated for by reference to one's use of occupation of land. Thus in Hunter v Canary Wharf [1997] AC 655 at 705, relevant parts of the judgments are:
- I have referred to these judgments at some length, amongst other things, to demonstrate that the law of nuisance, as established for many years and indeed from well before Nigeria's independence, is that the claimant must have appropriate rights over the land affected and that damages for loss of amenity relate to those rights. The right to damages for nuisance in English and Nigerian law runs with the land over which a claimant has such rights and there is no free standing cause of action in nuisance for loss of amenity, absent such rights, and an unlawful interference with them. I find that the Nigerian courts would accept the principles enunciated in Hunter as not only authoritative and persuasive but also as the prevailing law on such issues in Nigeria.
- In Farah, some at least of the plaintiffs, or those represented such as the families whose land was damaged, would be entitled to loss of amenity damages, assessed on an appropriate basis. I have no doubt that the Supreme Court of Nigeria if faced with a stark choice would find that the dicta in Farah are in an unqualified sense stating the point too high, even if the result was justifiable.
- Reliance is also placed by the Claimants on the Court of Appeal and Supreme Court decisions in Edamkue referred to above ("Adamkue" in the lower court). N30.576m was claimed for "general damages" for "inconveniences caused by heat radiation, noxious and toxic odour, general illness resulting from the contaminated water and foods, cost of evacuation of lives and property, burial expenses of the dead and alternative sources of sustenance" as well as other "special damages". The judge at first instance had said:
- Relevant parts of the lead judgment (Akintan JCA) are:
- It needs to be borne in mind that the appeal was dismissed, and the lower judge's dismissal of the general damages claim stood. The quote at Page 592 is not part of the Court's reasoning but simply setting out argument from one side. The Supreme Court decision in the same case (reported at [2009] 14 NWLR 1) does not address the issue of general damages for inconvenience etc.
- Justice Oguntade relies on the case of SPDC v Tiebo VII [2005] 9 NWLR 439 to show the Supreme Court as upholding an award for "damage and hazards from pollution of the environment" and for "general inconveniences". He delivered the leading judgment in this case. The case was about oil spillage from pipelines and the action was brought by local chiefs and several others on behalf of themselves and the local 50,000 strong community. "Special damage" was claimed for pollution to fish ponds, damage to nets and palms and disturbance to juju shrines whilst "general damages" were claimed for loss of fishing rights (N30m) and drinking water (N1m), medical expenses (N1m), "damage and hazards from the pollution of the environment" (N22m) and "general inconvenience and miscellaneous losses, damages and expenses" (N2m). The total claim had been some N64m; the trial judge awarded, all as "general damages", N400,000 for damage to palms, N600,000 for loss of drinking water and N5m. There were a number of issues such as whether the judge had been right to award the first of these two heads as general damages and the Supreme Court decided this against the trial judge. The Court expressed the issue about the N5m award as:
- Justice Oguntade answered a question from the bench saying that the general damages award in Tiebo was justified by reference to damage done to land, crops and water. It is not authority for the proposition advanced by Justice Oguntade in his report and it is not authority for the proposition that the Supreme Court approved the award of general damages for inconvenience, shock, fear etc. Indeed, Justice Oguntade accepted as unexceptionable a remark by Onalaja JCA in the Court of Appeal judgment ([1996] 4 NWLR 657 ,689) that "fear is not a recognised damage for which compensation is paid". This was in the context that the plaintiffs had claimed general damages for "especially old women…afraid to go on the river because of fear of the crude oil effect" (Page 675).
- Mobil v Monokpo [2003] NWLR 346 was a Supreme Court decision on appeal from a decision in the Court of Appeal ([2002] 3 NWLR 48). This involved representative claims by two chiefs for numerous villages, authorities and communities; in the two claims special damages of N3.698bn and N938m and general damages of N301m and N61m were made. The oil spillage was from an off-shore oil production platform on Nigeria's Atlantic Continental Shelf; it was not an OPA case. Below, a second defendant had not filed a defence and judgment had been entered against that defendant for the full amounts claimed. The lead judgment in the Supreme Court is concerned with the validity of the process leading to the judgment in default and the consequent fixing of the damages against that defendant. Uwaifo JSC held that the whole procedure was flawed and allowed the appeal (Page 415). There is nothing in this decision (even in a dissenting judgment) confirming the essential entitlement to general damages for inconvenience etc.
- Justice Oguntade relies on NNPC v Sele [2004] 5 NWLR 379 (see earlier). The largely representative claim for damages related to oil spillage from a pipeline and special damages were claimed for damage to fish stocks and ponds, fishing traps, trees and crops and distilleries and general damages apparently for suffering "considerable inconveniences and disturbances as regards their use of the creek water for domestic purposes, washing and bathing and that the respondents' community was thrown into mass unemployment leaving their youths idle" (Page 403). N3m was awarded at first instance for general damages. It does not appear that there was argument about whether general damages were awardable in principle but there was a challenge that the award was "manifestly excessive" (Page 406). At Page 429-30 in the lead judgment, the following is said:
- SPDC v Amaro (2000) 10 NWLR 248 (see earlier in this judgment) is relied on by Justice Oguntade to show that the Court of Appeal upheld an award for "inconveniences and suffering". The plaintiffs' claim was for N15.392m for injury leading to "loss of income from fishing, destruction of economic trees and domestic animals, inconveniences and suffering, destruction of fishing materials and fishing grounds" (Page 260). Three other claims were consolidated but N7.392m was awarded to the Amaro plaintiffs. One of the grounds of appeal was whether the sum awarded was excessive. Rowland JCA said:
- It is not clear from the report whether the first instance judgment was simply for special damages. It is clear that the plaintiffs had relied upon the expert evidence of an "estates valuer" based on the size of the represented population. The case does not help much on whether in principle general damages on a stand-alone basis are recoverable by individual claimants for established but otherwise financially unquantifiable inconvenience, distress etc.
- Agbara v SPDC in 2010 (suit no FHC/ASB/CS/231/2001, a first instance decision, is relied on also by Justice Oguntade. The representative plaintiffs, mostly chiefs, sued Shell for "special damages" for, amongst other heads, "shock and fear" (N100m) and "punitive general damages" for "general inconveniences, acid rain, pollution of underground water and hardship to the population who have been deprived of the right to self sustenance, education and good life" (N10bn). The judgment is short and every Naira claimed was awarded. Page 9 indicates that the plaintiffs' valuer's evidence was not challenged or contradicted. Although the judge said at Page 16 that: "I have no doubt whatsoever that the special damages have been proved; as the burden on the Plaintiff is minimal proof. I also assess and award punitive general damages as claimed having found out that the damages claimed is not exaggerated", there is no explanation as to the justification for this. Although I was told that this has been appealed unsuccessfully, I have not been provided with the judgment of the Court of Appeal. As there is no exposition on whether in principle punitive damages are recoverable and because "the shock and fear" was part of quantified special damages, I can not attach any weight to this case.
- So far as aggravated damages are concerned, they are recoverable under Nigerian Law. Justice Oguntade has set this out in Paragraphs 95-8 of his first report. The Supreme Court said in Williams v Daily Times of Nigeria (1990) 1 NWLR (Pt 124) 1, 31:
- This line of authority has obviously drawn on English precedent going back to Rookes v Barnard [1964] AC 1129 and the leading speech of Lord Devlin:
- Halsbury's Laws (Volume 12(1) re-issue) summarises the law on aggravated damages:
- Aggravated damages apply only where "damages are at large" and thus, most commonly in cases involving false imprisonment, malicious prosecution and defamation. AB and others v South West Water Services Ltd [1993] QB 507 was an English Court of Appeal decision in a (mainly) nuisance, negligence and breach of statutory duty claim arising out of contamination of the water supply; damages were claimed for injuries arising out of drinking the contaminated water but exemplary and aggravated damages were also claimed. Liability for breach of statutory duty was admitted. The exemplary and aggravated damages were claimed for arrogant and high-handed behaviour, wilful and deliberate misleading the plaintiffs of, withholding accurate or consistent information and failing to give information to relevant authorities such as hospitals. Stuart-Smith LJ with whom the other judges agreed said at Page 527-8:
- Sir Thomas Bingham MR (as he then was) said at Pages 532-3:
- An interesting dictum in Richardson v Howie [2004] EWCA 1127 on aggravated damages, albeit in an assault case, came from Thomas LJ (as he then was):
- One can draw from all these cases that aggravated damages are not a stand-alone entitlement; there must be an underlying cause of action giving rise to an entitlement to damages. In most cases, where the underlying injury is extended or made worse by the defendant's behaviour, the basic damages award can take that into account. I accept that this would apply in Nigeria.
- Exemplary damages are not in essence compensatory; they are essentially punitive. There are no Nigerian oil spill cases put before this Court in which exemplary damages have been claimed let alone allowed. There is the Agbara case in which punitive damages were ordered but that is not a decision which is at all helpful, in that there is no reasoning about why such damages are recoverable. Exemplary damages are recognised and indeed imposed in Nigerian Courts. In Williams v Daily Times of Nigeria, a defamation case, the Supreme Court considered the award of exemplary damages. Exemplary damages can be awarded only where statutes prescribe them or if they fall into these categories:
- Halsbury's Laws (Vol 12(1) Reissue) addresses constraints on exemplary damages at Paragraph 1116:
- Lord Devlin said in Rookes v Barnard:
- It is instructive that in the House of Lords libel case of Cassell & Co v Broome [1972] AC 1027 at 1082 there is repeated emphasis on the difference between compensatory damages on the one hand and aggravated, exemplary and punitive damages on the other.
- Issue 3 covers a wide-ranging area of the law in Nigeria. I will set out first my views on exemplary damages:
- Similar considerations apply to aggravated damages to the extent that they are doing anything more than compensating the victims of injurious affection or damage catered for within Section 11(5). Once the claimant under Section11 (5) has been fully compensated as he, she or those they represent are entitled to be, there is no room for any extra enhancement which an award of aggravated damages at common law might otherwise bring. I can see that, if a claimant has a claim through the Clause 11(5)(a) gateway, having a sufficient interest in or over land, an award of compensation relating to the loss of or reduction in enjoyment of the land in question might be increased, not by way of aggravated type damages but by way of compensation, where the effect on the enjoyment of the land has been extended or made worse by some disgraceful behaviour by a defendant.
- I now turn to compensation for shock and fear, annoyance, inconvenience, discomfort, illness, distress and anxiety and the like. The Claimants in this case, through their Counsel, have made it clear that this head of claim is not for personal injuries, for instance, because they have been poisoned by contaminated water and suffered physical or identifiable psychological harm, which would otherwise sound in a compensatory award as "damage".
- The claim for general damages is put in a number of different ways in the pleadings, for instance:
- The whole object of Sections 11(5) and 20(2) of the OPA is to compensate people whose land or rights over or interests are "injuriously affected" or who suffer "damage" as a consequence of the exercise by any OPA licencee of its rights under the licence. It will be simpler if I look first at the injurious affection gateway:
- I then turn to compensation through Sections 11(5)(b) and (c). This is obviously based on "damage", the person claiming must have "suffered" damage and, subject to what "disturbance" means in Section 20(2)(b), just compensation is to be fixed with regard to that damage (see Section 20(2)(a), (c) and (d)). In my judgment, I consider that damage does not as such encompass compensation purely for inconvenience etc. My reasons are as follows:
- I would not wish at this stage to rule out what the Claimants' Counsel have called "wayleave" type compensation. If there has been injurious affection to land interests, it is at least conceivable that, if no other basis of assessment can be made, some form of "just" allowance might be for what Shell might have had to pay a willing owner/tenant by negotiation so to speak for polluting the land. It is possible that, when this has been explained in rather more detail and indeed more appropriately quantified, I can return to the issue as to whether it is recoverable in principle.
- In the light of the above, my answers are that compensation is not recoverable under the OPA by individual claimants on any sort of stand-alone basis for shock and fear; annoyance, inconvenience, discomfort and illness, distress and anxiety. They have no entitlement to aggravated damages or exemplary damages or to sums representing their equivalent as such under the compensation provisions of the OPA. This issue is not directed at the Community or representative claims and my answer is not either.
- I have to some extent answered this in addressing Issue 3 above:
- The wording of Section 20(a), (b) to (e) is not prescriptive as to how the quantification exercise is to be done by the Court. For instance, actual physical damage to buildings, crops and trees (sub-section (a)), will often be justly compensated for by remedial work to the buildings and replacement of trees and crops, whilst the disturbance provision (sub-section (b)) would enable the Court justly to allow for consequential losses attributable to the disturbance to the land caused by, say, the oil spills, for instance the seasonal loss of cash crops. Capital diminution of the land attributable to the oil spillage to the extent that there has not been adequate remedial work or if such is not possible may be the just approach to compensation, having regard to those sub-sections, sub-section (e) and Section 20(3). Section 20(4) imposes a restriction on compensation for unoccupied land. Sub-sections (c) and (d) are broadly described as "any damage" which means loss or injury suffered by any person with the appropriate causative linkage to the relevant "neglect", "breakage" or "leakage", although this is subject to what I have said above about inconvenience etc un-associated with land rights (because that is in effect and practice not encompassed by the word "damage" in this context).
- It is rightly accepted by both Justice Oguntade and Justice Ayoola that broadly diminution in value, consequential loss and loss of amenity can properly be considered as recoverable. It is clear that, in assessing the loss attributable to oil spillage for people whose land has been affected or whose land interests have been affected, it may be appropriate and just to evaluate the related inconvenience etc. In Dobson v Thames Water Utilities Ltd [2011] EWHC 3253 (TCC), which was an odour nuisance case, Ramsey J addressed the method of assessment of damages to owners and occupiers of dwellings around a sewage treatment works. He considered the law relating to damages in nuisance by reference to the judgment of Waller LJ in an appeal from an earlier judgment on preliminary issues on Ramsey J in the same case:
- Ramsey J went on:
- It is clear that he based the damages to the individual owners on a proportion of the rental value, based in that case over 9 years for at least some of them. I would not rule out that this may be a form of just compensation in this case, albeit I am not convinced that it has yet been clearly pleaded on that basis by the Claimants. I accept that there may be other ways of assessing the loss but I would rather not speculate about these until, if at all, they are clearly articulated.
- The answer therefore to Issue 4 is that the amount of just compensation recoverable under the OPA 1990 in relation to damage arising from oil spills (save in respect of the claims for loss of earnings) may be assessed by reference to the diminution in value of the land and/or interests in land which have been damaged and/or the loss of the amenity value of that land or interests therein and/or consequential loss. I do not at this stage rule out a wayleave basis.
- The Private International Law (Miscellaneous Provisions) Act 1995 in England and Wales provides:
- This means in effect, and it is, rightly, common ground that, whilst the substantive law (of Nigeria in this case) must address and be determinative of liability as well as the basic heads of financial claim, quantification is to be carried out under English Law. This approach was followed in the House of Lords case of Harding v Wealands [2006] UKHL 32 in which Lord Hoffmann said:
- The basic entitlement to a financial remedy in the current case is determined by Nigerian Law, namely in the entitlement to "compensation" under the OPA. The scope of that entitlement is also determined by the OPA. For instance, Sections 20 (3) and (4) explain how the loss in land value is to be determined and that certain unoccupied land does not attract compensation. As indicated earlier in the judgment, there is no stand-alone entitlement to compensation for inconvenience etc for persons who in general have no appropriate land interests. I leave aside in this consideration a community representative type claim in respect of loss of amenity to the community.
- When it comes to the quantification however for the compensation recoverable in principle, it will be this (English) court which will apply its own English law approach. Prior to the hearing, there appeared to be major differences between the parties; for instance, it was thought that the Claimants were seeking to have quantification of injurious affection compensation by reference to English, capital or rental, land values. Properly, if it ever was an issue, the Claimants by their Counsel concede that where compensation is premised on the loss of value, both in capital and rental terms, of land, the loss be by reference to actual, that is, Nigerian values (see e.g. Claimants' Counsel's opening submissions). Logic would extend this to an assessment based on incomes in that part of Nigeria.
- The bulk of the sub-issues went to entitlement to compensation for inconvenience etc and, in the light of my findings earlier, they will probably no longer be particularly relevant. For instance, a point was made that one could have regard to the way that English Courts have quantified nuisance type claims. In broad terms, I do not disagree as this is consistent with the 1995 Act. Reliance was placed for instance on a first instance decision of Anslow and others v Norton Aluminium Ltd [2012] EWHC 2610 (QB), a nuisance case involving alleged chemical emissions, odours, noise, smoke, fumes, particulate matter and dust. Liability was found and, for odour compensation, the circuit judge, HHJ McKenna, said:
- He went on to apply "a somewhat rough and ready but sufficiently nuanced form of compensation [which] would be to award an annual multiplicand"; this was based on the relative strengths of the odour as measured for the individual house owners. He picked annual multiplicands ranging between £2,000 and £750. I remain unconvinced as to the appropriateness of this approach. It is certainly not transparent and it appears to have involved figures being plucked out of the air. The applicability of this case to 15,000 or more individuals in the Niger Delta is not obvious, particularly where the OPA requires the Claimants who succeed to be justly compensated under the statute. The fixing of "general damages as would be done in personal injury claims" is not obviously the correct approach in the current case where the inconvenience etc claims are predicated upon there being no actionable personal injury. It is most surprising in the Anslow case that the judge had to say that there was "too little primary data" to support an assessment by way of rental value; it may of course be that no such data had been produced as evidence but it is (almost) inconceivable that such data could not have been deployed for a sizeable village, close to the sizeable town of Cannock and in the M6 corridor in the Midlands region of England.
- What does emerge from the English cases is, however, that such awards for inconvenience etc in nuisance cases are modest, albeit that they can relate to all the years during which the successful claimants are affected by the wrong in question (subject to limitation).
- Given the proper concessions made by the Claimants by their Counsel and in the light of what I have said above, the answer is that awards of just compensation under the OPA, or, if applicable, awards of general damages at common law, should be valued primarily by reference to the value of land and/or the cost of living and/or incomes in Nigeria. Quantification is to be by way of English law procedures and approaches.
- There are thousands of claims here. This is such a blanket issue that I have decided that it would be inappropriate and unfair to decide this in a vacuum at this stage. I will attempt to explain my unease in addressing this issue on the currently available information.
- The issue stems from Section 30 of the Civil Justice and Judgments Act 1982 as amended:
- This reflected a variant to the decision in British South Africa Co v Companhia de Moçambique [1893] AC 602. The editors of Dicey, Morris and Collins The Conflict of Laws (15th Ed) suggest at Paragraph 23-040:
- Because this issue is a matter of fact and degree and because Shell accept that certain (possibly thousands of) claimants, in particular for instance fisher men or women, have claims, subject to proof and liability, for loss of income without proof of ownership of land or of rights over land required, it seems a rather pointless or at least limited exercise.
- It might help if I try to give some guidance by way of examples:
- I propose therefore that the Court will need to be astute to analyse individual claims to form a view about this jurisdictional issue and, once the individual claims are clearly capable of being analysed, a decision can be made whether as a matter of fact and degree a particular claim is barred jurisdictionally.
- This issue is now hypothetical in the light of my decision that the OPA replaces the common law and any civil proceedings for public nuisance in relation to oil spillages from licensed pipelines or their consequences. I will summarise what I would have decided if it had been necessary.
- Justice Oguntade initially sought to suggest that the Nigerian Courts had materially departed from the English common law. He referred to the Supreme Court in Ipadeola v Oshowole (1987) 3 NWLR (Pt.59) 18, where in the leading judgment (Eso JSC) the Court quotes with apparent approval the broad definition of a public nuisance given in Clerk and Lindsell 13th Edition:
- He sought to suggest that the Nigerian Supreme Court in Adediran v Interland Transport Ltd (1991) 9 NWLR 155 had materially changed the law on public nuisance to move away from the common law. The proceedings in public nuisance were brought by residents at a housing estate for losses caused by "nuisance due to noise, vibrations, dust and obstruction of the roads in the Estate" (p.172E). A primary issue was whether a public nuisance claim lay only at the suit of the Attorney-General. Karibi Whyte JSC in the lead judgment stated:
- It is true that the Supreme Court did seek to depart from the practice of requiring the involvement of the Attorney-General but that was the only departure (which was procedural and not substantive); it is to that the learned judge was referring when he said at Page 181F that the common law distinction between public and private nuisance is therefore not applicable in the institution of actions. There was no change to the substance to the requirements for public nuisance. Judge Oguntade properly accepted this under cross-examination.
- Both experts accepted that the underlined part of the Adediran judgment above represented the law. On any analysis, this is the same as English law has been for the last 150 years or more. Justice Oguntade rightly accepted that the plaintiff in a public nuisance case needs to show that he/she suffers in a particular way and different from the general public and that the plaintiff must show special damage peculiar to him. In Amos v Shell-BP [1977] 6 SC 70, Sowemimo JSC in the judgment of the Court on a case involving obstruction of a public waterway approved the Court of Appeal judgment which he quoted:
- In my judgment, the reference to the "public at large" must relate to the public in the area of the public nuisance. Of course, an oil spillage which effectively blocks a public waterway in the Niger Delta will not affect the whole population of Nigeria or the Nigerian public as a whole. Public nuisance, as the underlined quotation above indicates, involves some general inconvenience and even injury suffered to the public and that must be in the area in question. The area may be large or small; it may be as in many of the public nuisances which involve obstruction of the highway a smaller or larger section of public highway. It may involve one or more and indeed many potential plaintiffs. What is needed is that for a claimant to succeed is that he or she has suffered both "particular damage other than and beyond the general inconvenience and injury suffered by the public "and that "the particular damage is direct and substantial". It is almost a contradiction in terms that, where the public overall in say a town or a sizeable community (affected by, say, an unlawful traffic obstruction) suffers equally general inconvenience or injury, they all have a claim in public nuisance. I would not wish at this stage to seek to put some percentage on the numbers of a community who might have to be considered to have suffered particular injury or inconvenience such as would establish their entitlement to claim for public nuisance.
- In Ejowhomu v Edok-Eter Ltd (1986) 5 NWLR (Pt.39) 1, a road obstruction claim brought by a poultry farm owner whose access was affected, Karibi-Whyte JSC held:
- In Nwachukwu v Egbuchu [1990] 3 NWLR 435 the Court of Appeal was concerned with another highway obstruction case and Omosun JCA delivered the lead judgment:
- There is authority to the effect that damages for personal injury are recoverable in public nuisance (see e.g The Corby Group Litigation [2008] EWCA Civ 463). There is no doubt that actual financial loss is recoverable (see Ejowhomu). There is little authority as to the basis of assessment of "inconvenience"; it could be easily quantifiable in road obstruction cases, say by the cost of extra long car journeys to get round the obstruction (say @ Nx per mile extra) or the time wasted (@Ny per hour). I do not comment as to whether this would classify as special or general damages but there could be a rational basis for it as opposed to some rather general "guess" figure.
- The answer to Issue 7 is technically that no damage is recoverable for public nuisance in this case as there is no right to sue for public nuisance for oil spills from licensed pipelines. If there was a right to sue for public nuisance, pecuniary loss and personal injury loss is recoverable but there is no stand-alone entitlement to damages for inconvenience etc unless it is quantifiable; thus, damages for distress, shock or fear, falling short of personal injury are not recoverable. I otherwise defer to Mr Hermer QC's suggestion in closing that I should limit my findings to this and await any further evidence, which, given my findings on the OPA may never now come.
- This is now substantially resolved between the parties. The Court has a discretion under Section 35A of the Senior Courts Act 1981 to award interest. I reserve the position as to what, if anything, should be allowed by way of interest. It would depend arguably on the basis of any compensation awarded; if actual expenditure is awarded but was incurred by a successful claimant 5 years ago, I can see an argument that interest may be appropriate. If compensation is awarded, based on current levels, costs or values, the reverse may be arguable. Bearing in mind that it is statutory compensation which is payable, interest may or may not be payable to effect true compensation.
- I will leave Counsel for the parties to agree the wording of appropriate declarations. My findings are based on what the Nigerian law is. I wish to express my gratitude to both teams of Counsel who, although some of their submissions were particularly daunting in terms of substance or even length, were of particular assistance both orally and in writing, and also to both sets of solicitors whose preparation of the primary bundles of authorities in particular was most helpful.
- I should also add that as a judge I have felt some trepidation at making decisions on Nigerian law, particularly when I have had, as a mere puisne, to disagree with some of the views expressed by the two retired eminent Supreme Court judges and when their prior knowledge of Nigerian Law, compared to mine before the start of the case, was immense.
- I have only expressly referred to authorities which I have considered either helpful or illuminatory or which have been firmly put forward as determinative of issues in the case. Hundreds of authorities have been provided and, albeit that the majority have been Nigerian and English, a sizeable percentage are from a fair few other jurisdictions around the world (and not all common law jurisdictions). I have considered these other authorities (such as the Dutch case of Akpan) and had regard to all of them (even if not expressly mentioned), but a not insignificant number were, even if interesting, tangential.
Mr Justice Akenhead:
Introduction
The Background
"Mr Speaker, Sir, hon. Members will be aware that large oil companies are energetically exploring Nigeria for oil. Wells have been bored in a number of localities and traces of oil found, but unfortunately it is as yet too early to say whether it has been found in commercial quantities. But if, though I would much prefer to say when, it is found in such quantities it is essential that the company finding it should have facilities to convey the oil easily and cheaply to a place of shipment or to its place of utilisation".
He went on:
"The Bill now before the house is designed, in view of the extremely heavy capital investment required before oil can be found, to give the discoverer of oil in commercial quantities the right to facilities for the installation of a pipeline for the conveyance of the oil. But though its right is granted, the actual route over which the pipeline will run must be approved by the Minister, and before it is so approved full opportunity must be given for the lodging and hearing of objections, the safeguarding of the rights of other interested parties and the payment of compensation.…
The grant will be one of an oil pipeline licence, which, I would stress, would convey no title to the land itself. The license will be held for any period up to 99 years, or during the currency of the relevant oil prospecting licence or oil mining lease, and will enable mineral oils, natural gas, their derivatives and components, and steam and water so far as that is incidental to the main purpose, to be conveyed. The licensee will be responsible for compensating not only those whose lands or interests in lands are dangerously affected, but also for damage suffered by any innocent persons by any breakage or leakage of the pipe, unless maliciously caused by a third party.
The main principle behind the bill is not a new one. There are already examples in Nigerian law of rights to run electric cables or water mains across land not owned by the power or water authorities which control the cables or pipes. It is not only logical to extend this principle of oil pipelines but essential if Nigeria is to obtain the full benefit of any oil under her soil. Sir, the objects and reasons at the end of the bill clearly explain its various clauses, and honourable members will not wish it to go into further details at this stage."
Later in the debate, the Minister said:
"I point out that mineral resources are a national asset in the hands of the Federation and that the Company which extracts these resources pay royalties which are paid to the region of origin in full and pays company tax to the Federation. …
Mr Speaker, Sir, I must make it clear to hon. Members that facilities must be given to these people who spend millions of pounds in order to find oil in our country, which in turn will go a long way to assist the economy of our country."
Issue 1: Whether the Claimants are only entitled to claim compensation in respect of the 2008 spills under the OPA?
Issue 2: Whether SPDC can be liable under Section 11(5)(b) of the OPA 1990 to pay just compensation for damage caused by oil from its pipelines that has been released as the result of illegal bunkering and/or illegal refining?
Issue 3: Whether compensation under the following pleaded heads of loss is recoverable by individual claimants under the OPA: shock and fear; annoyance, inconvenience, discomfort and illness; distress and anxiety; aggravated damages; exemplary damages?
Issue 4: Whether the amount of just compensation recoverable under the OPA in relation to damage arising from oil spills (save in respect of the claims for loss of earnings) will be assessed in accordance with the diminution in value of the land and/or interest in land which have been damaged and/or the loss of the amenity value of that land or interests therein and/or consequential loss? If not, what alternative measure should be used?
Issue 5: Whether awards of just compensation under the OPA, or awards of general damages at common law, should be valued by reference to previous awards made by the English Courts or by reference to the value of land and/or the cost of living in Nigeria?
Issue 6: Whether the Court lacks jurisdiction to try some or all of the claims (as pleaded) on behalf of the Bodo Community and the claims by the individuals under the OPA 1990 and/or in nuisance and/or in negligence and/or Rylands v Fletcher by reason of Section 30 of the CJJA 1982?
Issue 7: Whether the damage - both pecuniary and non-pecuniary - alleged to have been suffered by the claimants, in both the individual and community claim, are recoverable in claims (whether brought individually or by representative action) for damages in public nuisance?
Issue 8: Whether interest is recoverable on awards of just compensation and/or damages at common law for past losses?
The Constitution, the Court System and the Sources of Nigerian Law
"If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void."
"Any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person…"
Section 44(3) of the Constitution, which is of some relevance in this case provides as follows:
"…the entire property in and control of all minerals, mineral oils and natural gas, in under or upon any land in Nigeria or in, under or upon the the territorial waters and the Exclusive Economic Zone of Nigeria shall vest in the Government of the Federation and shall be managed in such manner as may be prescribed by the National Assembly."
This undoubtedly reflects the importance of oil, in particular, to the economy of Nigeria. This is also reflected in the exclusive jurisdiction granted (by Section 251(1)(n) of the Constitution) to the Federal High Court in civil causes and matters relating to:
"…mines and minerals (including oil fields, oil mining, geological surveys and natural gas)…"
"(1) Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the first day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria."
It will be necessary to consider this provision particularly in the context of Issue 1. There can however be no doubt that Nigerian legislation, and particularly the federal legislation, has primacy and can exclude or limit common law.
"The case law in Nigeria suggests that a statute will probably be held to be a statute "of general application" if the following conditions are satisfied:
67.1. The statute was in force in England on 1 January 1900; and
67.2. That in respect of its subject-matter, it applied to all classes of the community in England on that date."
This was not challenged effectively or at all by Justice Oguntade.
The Approach of this Court
Issue 1: Whether the Claimants are only entitled to claim compensation in respect of the 2008 spills under the OPA?
"Normally if there is an appeal against a judgment on one point then the appeal stands or falls on that one point. When we give judgment on that point we have not pronounced on points not argued and, though they rest as part of the decision of the High Court, they remain open to argument as points of law in any other future appeal before us unfettered by any pronouncement of this Court as to their validity."
Making an apparently unexceptional point, albeit in a dissenting judgment, in the Supreme Court, Odu'a Investment Company Ltd v Talabi [1997] 10 NWLR 1, Kutigi, J.S.C, said at p. 56B:
"…I must emphasise that a case is only authority for what is actually decided and it is not appropriate to quote it even for a proposition that may seem logically to follow from it."
Justice Ayoola said, and I accept, that this correctly reflects Nigerian law and the practice of the courts.
"…while it is beyond dispute that Nigerian legislation can override English common law, equity and statutes, it does not automatically follow that such an enactment removes from the law any English rule on the same or a related subject. In each case it is necessary to examine the enactment and decide from its contents and the surrounding circumstances whether it was intended to supplant or merely to supplement the comparable portion of the received English law."
"A statute should always be looked at as a whole; words used in a statute are to be read according to their meaning as popularly understood at the time the statute became law; a statute is presumed not to alter existing law beyond that necessarily required by the statute."
"This argument overlooks the presumption against implicit alteration of the law: see Maxwell on the Interpretation of Statutes (10th ed.) p. 81, and Craies on Statute Law (5th ed.) p. 310. Maxwell puts it as follows: "One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication…"
…Learned counsel for the appellant has not referred to any provisions of the Minerals Ordinance as pointing to an intention to affect existing rights of fishery by the vesting of rivers etc. in the Crown, and we do not think that the right of public fishing stated in Amachree v Kalio (supra) was affected by the Ordinance." (pages 237-8)
"14.1.2 The creation of a statutory duty to do something does not of itself abrogate a common law duty to do that thing, unless there is something about the form or content of the statutory duty which is repugnant to the continuation of the common law duty…
14.1.7 "Presumption against legislative interference with common law
Despite the increasing shift towards control by legislation, there remains a rebuttable presumption that the legislature does not intend to alter a clearly established principle of law –
"Statutes are not presumed to make any alteration in the common law further or otherwise than the Act does expressly declare" Leach v. R [1912] AC 305
So in many cases the courts have rejected a possible interpretation of legislation on the grounds that it would involve significant departure from pre-existing common law, without the departure being expressly provided for or a necessary implication from the context of the provision."
"Where injury is sustained by any person by reason of the exercise by a drainage board of any of its powers under this section, the board shall be liable to make full compensation to the injured person, and in case of dispute the amount of the compensation shall be determined in the manner in which disputed compensation for land is required to be determined by the Lands Clauses Acts".
"It is necessary to look carefully at the Land Drainage Act…to see (a) what powers, rights and duties are given to catchment boards; (b) how the carrying out of those powers, rights and duties may affect various persons; and (c) whether any and, if so, what, remedies are given to persons who may be affected by the operations…It is equally clear from the nature of work that the doing of it may cause nuisance and damage to a number of people. One cannot interfere with the course of a river, or even of a stream, without causing upset: the operation of dredging or cleansing a river results in spoil which has to be put somewhere, and that may create a nuisance. This was recognised by Parliament, and s.34, sub-s 3, provides that, where injury is sustained by any person by reason of the exercise by a drainage board of any of their powers under the section, the board shall be liable to make full compensation to the injured person in the manner provided… (Page 297 per Singleton LJ)
I am satisfied that the remedy by way of compensation given by s.34, sub-s 3, was intended to cover the kind of case under consideration. I am not sure that it matters whether a violation of the legal right was shown or not: my impression is that the intention of Parliament was to avoid lengthy and costly litigation on questions of this kind and to ensure that anyone who suffered damage in consequence of work done under the powers given by the section should have a right to compensation. After all, the work is undertaken for the benefit of persons in the area; they contribute to the cost of it directly or indirectly; and if one of them suffered damage from the operations he should be entitled to compensation from the general fund. At least it would seem that if damage be sustained through the operations, that will provide prima facie evidence of a right to compensation…Examination of the Land Drainage Act, 1930, and of s.34 in particular, leads irresistibly to the view that Parliament recognised that there might be, and frequently must be, a nuisance created by the carrying out of works under the powers given by the section; and compensation for any damage sustained thereby is provided… (ibid page 298)
The cases cited on this aspect of the matter also included Manchester Corporation v Farmworth ([1930] AC 171,183), where Lord Dunedin said: "When Parliament has authorised a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorised. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible, according to the state of scientific knowledge at the time, having also in view of certain common-sense appreciation which cannot be rigidly defined, of practical feasibility in view of the situation and of expense."…
The general principle is thus well settled, but its application in any particular case must depend on the object and terms of the statute conferring the powers in question (including the presence or absence of a clause providing for compensation and the scope of any such clause), the nature of the act giving rise to the injury complained of, and the nature of the resulting injury. I venture to think that the questions which arise in any given case of this kind are substantially these: first, was the act which should be occasioned the injury complained of authorised by the statute?; secondly, did the statute contemplate that the exercise of the powers conferred would or might cause injury to others?; thirdly, if so, was the injury complained of an injury of a kind contemplated by the statute?; and, fourthly, did the statute provide for compensation in respect of any injury of the kind complained of sustained through the exercise of the powers conferred? If the answers to all these questions are in the affirmative then, I think, it must follow that the party injured is deprived of his right of action and left his remedy in the form of compensation under the statute...(pages 305-6 per Jenkins LJ)
In the absence of any provision in the Act for compensating persons injured by the exercise of the board's powers, difficult questions might arise as to the extent (if any) to which the Act should be regarded as depriving a person thus injured of his ordinary remedy in the courts, inasmuch as he would, if so deprived, be wholly without remedy. But the Act including, as it does, a provision for compensation in the shape of s.34, sub-s.3, the considerations above stated seem to me to lead irresistibly to the conclusion that the intention of the Act was to make the board, acting in good faith and within their powers, the sole judge of what was necessary or proper to be done in the way of drainage operations for the benefit of their catchment area as a whole and, within limits which I will endeavour to define below, to deprive persons injured by any exercise of the board's powers of their ordinary remedy by way of action, and substitute the remedy by way of compensation prescribed by s.34, sub-s.3. (ibid pages 308-9)
The limits outside which the ordinary rights of action remain are, I think, these: (a) The injury must be the product of an exercise of the board's powers as such, as opposed to the product of some negligent act occurring in the course of some exercise of the board's powers but not in itself an act which the board are authorised to do… (b) The injury must be the product of the operation which the board intended to carry out, and not of some unintended occurence brought about in the course of carrying out the work owing to negligence in carrying it out…(c) The operation must not be one which on the face of it is so capricious or unreasonable, or so fraught with manifest danger to others, that no catchment board acting bona fide and rationally, not recklessly, would ever have undertaken it" (ibid page 309)
"22 In my judgment, the authorities give clear guidance that if Parliament creates a right which is inconsistent with a right given by the common law, the latter is displaced. By "inconsistent" I mean that the statutory remedy has some restriction in it which reflects some policy rule of the statute which is a cardinal feature of the statute. In those circumstances the likely implication of the statute, in the absence of contrary provision, is that the statutory remedy is an exclusive one."
"37. The problem lies in extending or adapting any of these implied terms to dismissal. There are two reasons why dismissal presents special problems. The first is that any terms which the courts imply into a contract must be consistent with the express terms. Implied terms may supplement the express terms of the contract but cannot contradict them. Only Parliament may actually override what the parties have agreed. The second reason is that judges, in developing the law, must have regard to the policies expressed by Parliament in legislation. Employment law requires a balancing of the interests of employers and employees, with proper regard not only to the individual dignity and worth of the employees but also to the general economic interest. Subject to observance of fundamental human rights, the point at which this balance should be struck is a matter for democratic decision. The development of the common law by the judges plays a subsidiary role. Their traditional function is to adapt and modernise the common law. But such developments must be consistent with legislative policy as expressed in statutes. The courts may proceed in harmony with Parliament but there should be no discord…
56 Part X of the Employment Rights Act 1996 therefore gives a remedy for exactly the conduct of which Mr Johnson complains. But Parliament had restricted that remedy to a maximum of £11,000, whereas Mr Johnson wants to claim a good deal more. The question is whether the courts should develop the common law to give a parallel remedy which is not subject to any such limit.
57 My Lords, I do not think that it is a proper exercise of the judicial function of the House to take such a step. Judge Ansell, to whose unreserved judgment I would pay respectful tribute, went in my opinion to the heart of the matter when he said:
"There is not one hint in the authorities that the…tens of thousands of people that appear before the tribunals can have, as it were, a possible second bite in common law and I ask myself, if this is the situation, why on earth do we have this special statutory framework? What is the point of it if it can be circumvented in this way? …it would mean that effectively the statutory limit on compensation for unfair dismissal would disappear."
58 I can see no answer to these questions. For the judiciary to construct a general common law remedy for unfair circumstances attending dismissal would be to go contrary to the evident intention of Parliament that there should be such a remedy but that it should be limited in application and extent.
59. The same reason is in my opinion fatal to the claim based upon a duty of care. It is of course true that a duty of care can exist independently of the contractual relationship. But the grounds upon which I think it would be wrong to impose an implied contractual duty would make it equally wrong to achieve the same result by the imposition of a duty of care."
Lord Millett went on to say:
"But the creation of the statutory right has made any such development of the common law both unnecessary and undesirable. In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limits or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the co-existence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost."
"187. Compensation clauses
In a case where the legislature authorises interference with the rights of private persons, provision is generally made for the payment of compensation to persons injured. The effect of such a clause is normally to deprive persons injured of their ordinary rights of action and to substitute the remedy by way of compensation as regards matters within the scope of the clause. The absence of such a clause from an Act conferring powers affords an indication, though not a conclusive one, that it was not intended to authorise interference with private rights…
759. Tort of breach of statutory duty
… Where the enactment itself provides a remedy the question may arise whether it is intended to be additional to the general sanctions and remedies available under the law or in addition to them. The enactment may expressly or by implication exclude existing remedies…
Where the Act itself provides a remedy but there is no express or implied indication as to whether other remedies are also available, there is a prima facie presumption that it is intended to be the only one available. This presumption will not always exist and the question depends in each case on the construction of the enactment concerned. The question is, however, one of the true construction of the particular statute concerned, and it may be that the intention of the statute, as disclosed by its scope and by its wording, that other remedies should not be excluded…"
"21. Mr Marcic's difficulty is this. Section 94(3) provides, so far as relevant, that a sewerage undertaker's duty to provide an adequate system of public sewers under section 94(1) is enforceable by the Director under section 18, in accordance with a general authorisation given by the Secretary of State. Hence, as provided in section 18, the remedy in respect of a contravention of the sewerage undertaker's general drainage obligation lies solely in the enforcement procedure set out in section 18. Thus, a person who sustains loss or damage as a result of a sewerage undertaker's contravention of his general duty under section 94 has no direct remedy in respect of the contravention. A person in the position of Mr Marcic can bring proceedings against a sewerage undertaker in respect of its failure to comply with an enforcement order if such an order has been made. In the absence of an enforcement order his only legal remedy is, where appropriate, to pursue judicial review proceedings against the Director or the Secretary of State, who has similar enforcement functions regarding section 94, in respect of any alleged failure by the Director or the Secretary of State to make an enforcement order as required by section 18(1).
22. In the present case no enforcement order has been made against Thames Water in respect of the inadequate drainage of Mr Marcic's property. Nor has Mr Marcic advanced a complaint that by not making such an order the Director is in dereliction of his duty under section 18. Indeed, Mr Marcic seems to have made no complaint of any sort to the Director, although his opportunities in this regard were drawn to his solicitors' attention early in 1998. Rather, in advancing claims based on common law nuisance and under the Human Rights Act 1998, Mr Marcic seeks to sidestep the statutory enforcement code. He asserts claims not derived from section 94 of the 1991 Act. Since the claims asserted by him do not derive from a statutory requirement, section 18(8) does not rule them out even though the impugned conduct, namely, failure to drain the district properly, is on its face a contravention of Thames Water's general statutory duty under section 94. The closing words of section 18(8) expressly preserve remedies for any causes of action which are available in respect of an act or omission otherwise than by virtue of its being a contravention of a statutory requirement enforceable under section 18…
33. The Goldman and Leakey cases exemplify the standard of conduct expected today of an occupier of land towards his neighbour. But Thames Water is no ordinary occupier of land. The public sewers under Old Church Lane are vested in Thames Water pursuant to the provisions of the 1991 Act, section 179, as a sewerage undertaker. Thames Water's obligations regarding these sewers cannot sensibly be considered without regard to the elaborate statutory scheme of which section 179 is only one part. The common law of nuisance should not impose on Thames Water obligations inconsistent with the statutory scheme. To do so would run counter to the intention of Parliament as expressed in the Water Industry Act 1991.
34. In my view the cause of action in nuisance asserted by Mr Marcic is inconsistent with the statutory scheme…
35…The existence of a parallel common law right, whereby individual householders who suffer sewer flooding may themselves bring court proceedings when no enforcement order has been made, would set at nought the statutory scheme. It would effectively supplant the regulatory role the Director was intended to discharge when questions of sewer flooding arise."
"27. There are many examples of cases where the court has considered whether the provisions of a statute have impliedly overridden or displaced the common law. In each case, it is a question of construction of the statute in question whether it has done so. Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49, [2007] 1 AC 558 concerned a claim for compensation in respect of the payment of advance corporation tax which had been demanded contrary to the EC Treaty. One of the issues was whether section 33 of the Taxes Management Act 1970 excluded any common law claim on the grounds of mistake. Lord Hoffmann said at para 19:
"But the question is in the end one of construction. When a special or qualified statutory remedy is provided, it may well be inferred that Parliament intended to exclude any common law remedy which would or might have arisen on the same facts."
To similar effect, at para 135 Lord Walker said:
"When Parliament enacts a special regime providing special rights and remedies, that regime may (but does not always) supersede and displace common law rights and remedies (or more general statutory rights and remedies). Whether it has that effect is a question of statutory construction."
He went on to refer to the Marcic and Johnson cases, amongst others, adding:
"33. If the two remedies cover precisely the same ground and are inconsistent with each other, then the common law remedy will almost certainly have been excluded by necessary implication. To do otherwise would circumvent the intention of Parliament. A good example of this is Marcic where a sewerage undertaker was subject to an elaborate scheme of statutory regulation which included an independent regulator with powers of enforcement whose decisions were subject to judicial review. The statutory scheme provided a procedure for making complaints to the regulator. The House of Lords held that a cause of action in nuisance would be inconsistent with the statutory scheme. It would run counter to the intention of Parliament.
34. The question is not whether there are any differences between the common law remedy and the statutory scheme. There may well be differences. The question is whether the differences are so substantial that they demonstrate that Parliament could not have intended the common law remedy to survive the introduction of the statutory scheme. The court should not be too ready to find that a common law remedy has been displaced by a statutory one, not least because it is always open to Parliament to make the position clear by stating explicitly whether the statute is intended to be exhaustive. The mere fact that there are some differences between the common law and the statutory positions is unlikely to be sufficient unless they are substantial. The fact that the House of Lords was divided in Total Network SL shows how difficult it may sometimes be to decide on which side of the line a case falls. The question is whether, looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended to co-exist with it.
35. I agree with Lord Brown that, for the reasons he has given, section 71 was intended to be an exhaustive code. Some of the difficulties that he has highlighted at para 14 of his judgment are similar to those mentioned by Lord Neuberger in Total Network SL. As Lord Millett put it in Unisys at para 80 of his speech, "the co-existence of two systems, overlapping but varying in matters of detail…would be a recipe for chaos". That is a powerful reason for supposing that Parliament intended the statutory code contained in section 71 of the 1992 Act to be exhaustive."
"The critical question, in my view, is whether the statutory scheme supersedes and displaces the common law rights and remedies which the Commissioners would otherwise have: see Deutsche Morgan Grenfell Group plc v. Inland Revenue Commissioners [2006] UKHL 49, [2007] 1 AC 558, per Lord Walker at para. 135. For this to be the case, it seems to me that the statute must positively be shown to be inconsistent with the continuation of the ordinary common law remedy otherwise available, and further that this must be shown to be the case as against the particular defendant. In support of the passage cited above, Lord Walker referred to two cases where an exclusive scheme would have been "set at nought" or "defeated" if a common law claim had been permitted. In Marcic v. Thames Water Utilities Ltd. [2003] UKHL 66; [2004] 2 AC 42, the statutory scheme for ensuring that water undertakers performed their statutory duties appropriately would have been set at nought if a common law claim for damages in nuisance had been possible; and in Autologic Holdings plc v. Inland Revenue Commissioners [2004] UKHL 54; [2006] 1 AC 118, the majority in this House held that, at least where the time limit for use of the statutory scheme had not expired, a taxpayer's only way of challenging a taxing provision as contrary to European law was by making use of the statutory tribunal scheme, as opposed to judicial review. In contrast, in Woolwich Equitable Building Society v. Inland Revenue Commissioners [1993] AC 70, also cited by Lord Walker, there had been no lawful assessment, it was not therefore possible to seek a remedy through the statutory scheme (which "where applicable, overlaid and replaced the common law principles") and so a common law claim for restitution could lie: per Lord Goff of Chieveley at pp.168G-170D, esp. at p.169H-170B. The case of Johnson v. Unisys Ltd. [2003] 1 AC 518 falls in my opinion into the same category. The claimant was contending for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system, and it was held that it would have been contrary to Parliament's intention to recognise such a remedy: per Lord Nicholls of Birkenhead at para. 2 and Lord Hoffmann at paras 58-59.
"It has become trite law that statutory provisions supersede common law or customary law. Where therefore a statute has provided for certain actions, common law provisions relating to such actions cease to apply."
"The Warsaw Convention is an international treaty, an international agreement, a compromise principle which the high contracting States have submitted to be bound by the provisions. They are therefore an autonomous body of law whose terms and provisions are above domestic legislation. Thus, any domestic legislation in conflict with the Convention is void. The purpose and intention of the Warsaw Convention is to remove those actions governed by the Warsaw Convention as amended by the Hague Protocol from the uncertainty of the domestic laws of the member States.
The law is that where domestic/common law right has been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right and not the domestic/common law. Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law for claims against the carrier. Such claims have to be asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law."
"No person shall be entitled to institute any proceedings to prevent, or to recover damages for the infringement of an unregistered trade mark; but nothing in this act shall be taken to affect the rights of action for passing off goods of another person or remedies in respect thereof."
"The section prohibits action in respect of unregistered trade marks but preserves the right of action for passing-off goods as the goods of another. Thus a right of action in respect of passing-off arising from the Trade Marks Act 1965 is preserved by the proviso italicised [as above]…
…It is well settled law where a statutory provision is in conflict or differ from common law, the common law gives place to the statute. A statutory right may be conferred in addition to, and not in derogation of a common law right-See National Assistance Board v Wilkinson (1952) 2 QB 648. This is exactly what Section 3 of the Trade Marks Act, 1965 has done. In addition to the right of action conferred on the owner of a registered Trade Mark, the statute has in this section conferred an additional right of action by preserving the right of action of passing-off in respect of such goods…
It is well settled law that where a common law right has been enacted into statutory provision, it is to the statutory provision so made that resort must be had for such rights and not in the common law."
(a) A statute can supercede, and have primacy over, the common law.
(b) It can do so expressly or by implication. In either case, it will be a matter of interpretation whether common law rights have been excluded.
(c) There is a rebuttable presumption against legislative interference with the common law (see Adeshina).
(d) The provision by the statute in question for compensation for victims of or persons affected by the subject matter of the legislation is a pointer towards the statute excluding the common law but it is not determinative. Even without compensation, a statute can exclude the common law (see Marcic). The more comprehensive the compensation scheme, the more likely it is that common law is replaced by the statute. To this can be added, the more comprehensive the code (particularly if it has extensive compensation arrangements) within the statute in relation to the area of life or commerce, the more likely that the common law is replaced.
(e) Where the rights granted or created by the statute are inconsistent with the common law, such inconsistency is or may be a strong pointer towards the exclusion of the common law (see Monro). Inconsistency in this context means the statutory remedy having some restriction in it which "reflects some policy rule of the statute" and is "a cardinal feature of the statute".
(f) Upon examination of the statute, the Court should decide from the contents and the surrounding circumstances whether it was intended to supplant or merely to supplement the comparable portion of the received English law (see Park).
(g) There have to be sufficiently substantial differences between the common law and the statute in question and "that they demonstrate that [the legislature] could not have intended the common law remedy to survive the introduction of the statutory scheme" but the Court "should not be too ready to find that a common law remedy has been displaced by a statutory one", the "mere fact that there are some differences between the common law and the statutory positions is unlikely to be sufficient unless they are substantial" (see Child Poverty Action Group).
(h) A factor pointing towards exclusion of the common law is that if both the common law and statutory provisions and machinery co-exist, differing in matters of detail, there could be chaos (see Johnson).
(i) Another factor pointing towards or against exclusion is whether the statutory regime would be "set at nought" or "defeated" if common law claims can remain permitted (see Deutsche Morgan Grenfell referred to in Total Network).
"(1) Any person whose land or interest in land may be injuriously affected by the grant of a licence made within the period specified for objections lodged verbally or in writing at one of the specified addresses notice of objection stating the interest of the objector and the grounds of objection.
(2) Matters relating to quantum of compensation shall not be material grounds to be included in a notice of objection under this section…"
Section 10 requires the Minister to consider objections and inform the applicant and objectors of his decision.
"The holder of a licence shall pay compensation -
(a) to any person whose land or interest in land (whether or not it is land in respect of which the licence has been granted) is injuriously affected by the exercise of the rights conferred by the licence, for any such injurious affection not otherwise made good; and
(b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work, structure or thing executed under the licence, for any such damage not otherwise made good; and
(c) to any person suffering damage (other than on account of his own default or on account of the malicious act of a third person) as a consequence of any breakage of or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good.
If the amount of such compensation is not agreed between any such person and the holder, it shall be fixed by a court in accordance with Part IV of this Act."
"For the removal of doubt it is hereby declared that the powers granted to the holder of a licence under this Act shall be exercisable only subject to the provisions of this Act and of any other enactment or rule of law".
"Every licence shall be subject to the provisions contained in this Act as in force at the date of its grant and to such regulations concerning public safety, the avoidance of interference with works of public utility in, over and under the land included in the licence and the prevention of pollution of such land or any waters as may from time to time be in force."
Sub-section (5) provided for certain conditions deemed to be included within a licence in the absence of the express provisions to the contrary. This included an obligation "to commence the construction of an oil pipeline within a period to be specified by the Minister and to complete the same and all necessary installations with reasonable dispatch, and to maintain the same during the currency of the licence" and "to indemnify the Minister against any claims arising from injury to any person or damage to any public or private property as a result of any act or thing done by the holder of the licence…in accordance with the licence".
"If there be any dispute as to whether any compensation is payable under any provision of this Act or if so as to the amount thereof, or as to the persons to whom such compensation should be paid, such dispute shall be determined by a magistrate exercising civil jurisdiction in the area concerned if such magistrate has in respect of any other civil matter monetary jurisdiction of at least as much as the amount of compensation claimed and if there be no such magistrate by the High Court exercising jurisdiction in the area concerned and, notwithstanding the provisions of any other Act or law, in respect of the decision of a magistrate in accordance with this section there shall be an appeal to the High Court of the State and in respect of a decision of the High Court of the State under this section, whether original or appellate, there shall be an appeal to the Court of Appeal: Provided that nothing in this Act shall be deemed to confer power upon a magistrate to exercise jurisdiction in a matter of raising any issue as to the title to land or as to the title to any interest in land."
In this context, this provision has been superseded by the Constitution which gives to the Federal High Court jurisdiction to deal with cases affecting oil pipelines and the like. In Shell Petroleum Development Company Nigeria Ltd v Isaiah [2001] 11 NWLR 168, the Supreme Court addressed a jurisdictional case as to whether a State Court had jurisdiction in a case in which, following a tree falling on Shell's pipeline, crude oil spilled during the subsequent repairs of the pipeline polluting and damaging the plaintiff's land, swamps and streams. The State High Court awarded the plaintiff N22m as damages under the rule in Rylands v Fletcher. Mohammed JSC gave the lead judgment, saying at page 179:
"It is clear from the pleadings that the spillage and pollution occurred when the appellant was trying to repair the indented pipeline by cutting off the said section and installing a new section. I think it cannot be disputed if I say that installation of pipelines, producing, treating and transmitting of crude oil to the storage tanks is part of Petroleum Mining Operations. Therefore if an incident happens during the transmission of petroleum to the storage tanks it can be explained as having arisen from or connected with or pertaining to mines, and minerals, including oil fields, and oil mining. I therefore agree that the subject matter of the respondents' claim falls within the exclusive jurisdiction of the Federal High Court as is provided under section 230 (1) (a) of Constitution (Suspension and Modification) Decree No. 107. Similar opinions concerning claims pertaining to oil spillage have been held by the Court of Appeal in Barry and 2 Ors. V. Obi A. Eric and 3 Ors. (1998) 8 NWLR (Pt.562) 404 at 416 and The Shell Petroleum Development Company of Nigeria Limited v. Otelemaba Maxon and Ors. Maxon's (2001) 9 NWLR (Pt. 719) 541".
Based on this, and I find, based on my understanding of the evidence of both Justices Oguntade and Ayoola, the Federal High Court has exclusive jurisdiction to deal not only with any cases at common law but also any claim for statutory compensation under the OPA insofar as there are separable remedies.
"(1) If a claim is made under subsection (3) of section 6 of this Act, the court shall award such compensation as it considers just in respect for any damage done to any buildings, crops or profitable trees by the holder of the permit in the exercise of his rights thereunder and in addition may award such sum in respect of disturbance (if any) as it may consider just.
(2) if a claim is made under subsection (5) of section 11 of this Act, the court shall award such compensation as it considers just, having regard to -
(a) any damage done to any buildings, crops or profitable trees by the holder of the licence in the exercise of the rights conferred by the licence; and
(b) any disturbance caused by the holder in the exercise of such rights; and
(c) any damage suffered by any person by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work, structure or thing executed under the licence; and
(d) any damage suffered by any person (other than as stated in such subsection (5) of this section) as a consequence of any breakage of or leakage from the pipeline or an ancillary installation; and
(e) loss (if any) in value of the land or interests in land by reason of the exercise of the rights as aforesaid,
and also having regard to any compensation already awarded in accordance with subsection (1) of this section.
(3) In determining the loss in value of the land or interests in land of a claimant the court shall assess the value of the land or the interests injuriously affected at the date immediately before the grant of the licence and shall assess the residual value to the claimant of the same land or interests consequent upon and at the date of the grant of the licence and shall determine the loss suffered by the claimant as the difference between the values so found, if such residual value is a lesser sum.
(4) No compensation shall be awarded in respect of unoccupied land as defined in the Land Use Act, except to the extent and in the circumstances specified in that Act.
(5) In determining compensation in accordance with the provisions of this section the court shall apply the provisions of the Land Use Act so far as they are applicable and not in conflict with anything in this Act as if the land or interests concerned were land or interests acquired by the President for a public purpose.
(6) If the total sum awarded by the court in accordance with this section exceeds an amount already offered to the claimant by the holder of the licence the court may order such holder to pay the costs of the proceedings; and if the sum so awarded does not exceed the amount offered by such holder the court shall either order the claimant to pay the cost of the proceedings or order each side to bear its own costs.
(7) Compensation (if any) awarded by the court in accordance with this section shall be a sum of money payable forthwith or shall consist of periodical instalments or partly one and partly the other.
Provided that nothing in this subsection shall preclude the court awarding additional compensation upon subsequent application if loss or damage from the operation of the oil pipeline be proved and the court is of opinion that such loss or damage is loss or damage not contemplated at the date of the original award."
"21. Where the interests injuriously affected are those of a local community, the court may order the compensation to be paid to any chief, headman or member of that community on behalf of such community or that it be paid in accordance with a scheme of distribution approved by the court or that it be paid into a fund to be administered by a person approved by the court on trust for application to the general, social or educational benefit and advancement of that community or any section thereof.
22. If any question arises respecting the title to the lands affected under this Act, the parties in possession as being the owners thereof, or in receipt of the rents of such lands as being entitled thereto at the time of service under section 6 or 8 of this Act as the case may be, shall be deemed to have been lawfully entitled to such lands, unless the contrary be shown to the satisfaction of the court, and they and all parties claiming under then or consistently with their possession shall be deemed entitled to any compensation payable under this Act, but without prejudice to any subsequent proceedings against such parties at the instance of any person claiming to have a better right thereto.
23. The payment to any person to whom any compensation shall be paid or the payment into court of any compensation upon a decision of the court shall effectually discharge the person making such payments from seeing to the application or being answerable for the misapplication thereof.
Provided that were any person is in possession of any land affected by the provisions of this Act by virtue of any estate less than an estate of inheritance, or where any person is in possession thereof in any fiduciary or representative character, the compensation may be paid to such persons and in such proportions and instalments and after such notices as the court may direct."
(a) Section 24 enables the court to grant a writ of possession against anyone who hinders or obstructs persons authorised under the Act and Section 25 makes such hindering or obstruction a criminal offence.
(b) Section 27 addresses breach of the terms or conditions of licences:
"(1) If there shall be a breach of any of the terms or conditions upon which the licence has been granted the Minister may by notice in writing require the holder of the licence to remedy such breach within such period being not less than three months as may be specified in such notice.
(2) If the holder of the licence shall fail within the period so specified to remedy such breach the Minister may by notice to the holder revoke the said licence, without prejudice to anything lawfully done thereunder and without prejudice to any claims for compensation against the holder made in accordance with the provisions of this Act."
(c) Section 28 deals with what is to happen on the expiration or termination of the licence, which includes the purchase of pipeline by the Minister or its removal.
(d) Section 33 gives the Minister power to make regulations to prescribe "measures in respect of public safety" and "the prevention of pollution of any land or water" as well as "such matters relating to the construction, maintenance and operation of oil pipelines as the Minister considers it necessary or appropriate to prescribe".
(a) In sub-section (a), compensation is payable to people "whose land or interest in land…is injuriously affected by the exercise of the rights conferred by the licence…" It is rightly common ground between the experts that this equates to nuisance and trespass. Indeed, it must be the case that rights to claim as against licencees for nuisance and trespass at common law have been removed by operation of the OPA because the behaviour involved in going into the areas which the licencee is entitled to go into can not be unlawful as they have been rendered lawful by the OPA. There is statutory permission to the licencee to enter, place pipelines on that land and operate and maintain them. Like in the Marriage case, because nuisance and trespass are predicated upon unlawful acts, the statute provides for the lawful justification for those activities even if they do cause damage and injurious affection. The OPA provides for compensation for the injurious affection, which primarily relates to the damages recoverable for nuisance at least and probably for trespass. This provides for compensation for what are lawful acts and thus goes further than the common law. No want of care or neglect as such has to be proved and that is, or in many cases would be, wider than the common law relating to many types of nuisance.
(b) The second head relates "to any person suffering damage by reason of any neglect on the part of the holder…to protect, maintain or repair any work structure or thing executed under the licence…" The use of the word "neglect" implies both fault and the failure or omission to do something which the holder was generally or specifically required to do. As the experts each accepted, this equates to negligence albeit it goes arguably wider because it is not hidebound by any neighbour principle otherwise deployed in the common law relating to negligence, it is related to a causative damage test only and is not restricted by "economic loss" considerations which are a limiting feature in the tort of negligence.
(c) The third head relating "to any person suffering damage…as a consequence of any breakage of or leakage from the pipeline or an ancillary installation…" equates closely if not exactly to liability in Rylands v Fletcher. It envisages the escape of something noxious, oil, brought onto land over which a party may have possessory rights. The exclusion of liability under this sub-section for the "malicious act of a third person" widens a liability under Rylands v Fletcher, since the act of a third party (a defence to liability to such a common law claim) does not need to be malicious.
It has not been suggested, let alone argued, that in practice any other torts are or would be applicable, other than nuisance (public and private), trespass to land, negligence and Rylands v Fletcher, in relation to the activities of the licence holder and for the escape of the oil from the pipelines for any reason.
(a) There is a sufficiently comprehensive code within the OPA to cover the key aspects of the whole process involved in the pipelines.
(b) There is a wide and comprehensive provision for compensation.
(c) That provision goes in most respect wider than the common law with primarily a causation test for injurious affection and damage, albeit that neglect is required under one head. For instance, the test in Section 11(5)(b) does not have the "economic loss" limitations present in the tort of negligence. It is therefore much more generous overall for the victims than the common law in many respects. In this context, it is of course correspondingly more restrictive and onerous on the licence holder than under the common law.
(d) There are substantial differences between the statutory scheme and the common law both in terms of substance and in terms of procedures. The statutory scheme goes much wider in terms of liability (both as to scope and to what has to be established) than the common law. The statutory regime is compensatory in nature and therefore excludes any entitlement to aggravated, exemplary or punitive damages otherwise available under some of the common law remedies. There is a much wider range of potential claimants (based largely on the causation test). The procedures were novel (and sensible). Taken overall, the differences are substantial albeit that if one looks at some of the individual differences (for instance, payment of compensation in instalments) they are not on their own substantial enough.
(e) There could be a form of chaos or setting at nought if both common law and statutory regimes co-existed with, for instance, there being no or only a restricted res judicata regime in place for the statutory claim but a fully rigorous res judicata regime deployable for the common law claim. There could be some very real tension if the court thought that on a valid statutory claim the compensation should in total or in part be paid to the local headman but this policy would be defeated if there was a parallel valid common law claim pursuant to which no such provision could be made.
(a) Once the Court is seised of the compensation claim, it has all the powers of the Court which have not been withdrawn or limited by the OPA. The Federal High Court Act 1973 (as amended) provides by Section 13(1) that the "Court may grant an injunction or appoint a receiver by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so". This is an "interlocutory" power but there is no reason to think that the Court could not grant an injunction to stop the oil continuing to flow on to the claimant's land.
(b) The Federal High Court, which constitutionally has exclusive jurisdiction over OPA compensation claims, has wide powers to issue injunctions. Section 11 of the Federal High Court Act provides:
"The Court, in the exercise of the jurisdiction vested in it by or under this Act shall, in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the court thinks just, all such remedies whatever and conditions as the court thinks just, all such remedies whatsoever as any of the parties thereto appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters be avoided."
I did not have the impression that this was strongly, if at all, disputed by Justice Oguntade; indeed, he said at Paragraph 45 of his Supplementary report that it was "absolutely clear…that the Court…has jurisdiction to prevent or abate oil spills, not least under s.11 of the Federal High Court Act." The reference to avoiding a multiplicity of proceedings would suggest that the quia timet jurisdiction could be deployed to avoid proceedings.
(c) I would not see any objection in principle if a final injunction was granted against a licence holder as part of or ancillary to a compensation award.
(a) SPDC v Otoko [1990] 6 NWLR 693
(i) The plaintiffs in a representative capacity claimed compensation for injurious affection to, and deprivation of the use of, the Andoni River as a result of the spillage of crude oil caused by Shell's negligence. In the alternative, they claimed for nuisance and for a mandatory injunction to restrain Shell from further unlawful acts. Shell contended that the spillage was caused by the act of a third party in removing a crucial screw from the manifold. Shell lost at first instance. The issues listed in the Court of Appeal judgment suggest that the claims were made at common law (nuisance, negligence and Rylands v Fletcher). Much of the appeal related to "technicalities and the facts" and indeed the appeal was allowed in effect on the facts on the basis that the leakage was caused by the malicious act of a third party, with there being no factual findings of negligence. Omosun JCA in the lead judgment recorded, without significant comment at Page 719G that the first instance award of damages was "made under the provisions of Section [20] (2)(a) to (e) of the" OPA.
(ii) This seems to have been dealt with as a common law case and the mention in Omosun JCA's judgment that the court below had made the damages award under Section 20 of the OPA does not take the debate on Issue 1 further.
(b) SPDC v Enoch [1992] 8 NWLR 335
(i) This was a Court of Appeal judgment. It was a representative claim for damages possibly for negligence in respect of oil spillage caused by an explosion in a pipeline. The main issue below was whether in effect the right parties had been joined as plaintiffs and were representative of the parties whom they claimed to represent and as to whether the claim should be dismissed or the plaintiff non-suited. Jacks JCA in the lead judgment agreed that the judge was right in non-suiting the plaintiffs.
(ii) It is difficult from the report to see what the claim below was, with Shell arguing on appeal that the plaintiff had not based their claim either on negligence or the OPA. There is a statement in Jacks JCA's judgment that the trial judge "expressed his views on certain sections of the [OPA] which were relied upon for the first time during the address of learned counsel for the plaintiff"; this lends some support to the paucity of the plaintiff's pleaded case. This case simply does not assist the debate in the current case.
(c) SPDC v Isaiah [1997] 6NWLR 236 (CA) and [2002] 11 NWLR 168 (SC)
(i) As indicated earlier in this judgment, the real issue ultimately was whether the state courts had jurisdiction to hear cases about oil spillages, the Supreme Court deciding that in the negative.
(ii) As recorded in the Court of Appeal judgment, the relief claimed by the plaintiffs was compensation for damage and loss by reason of extensive oil spillage and pollution, and damages for negligence and under the rule in Rylands v Fletcher. The defence on liability seems to have been largely as to the amount of oil spilt. The appeal by Shell failed in the Court of Appeal. Katsina-Alu JCA did say at page 246F:
"Moreover, the [OPA] is still in force. Sections 19 and 20 thereof expressly confer jurisdiction in cases of oil spillage or leakage from pipelines on the Magistrates Courts or High Courts in the area where the oil leakage or spillage occurs."
This was an added reason to his main reasoning about the real issue as to the local courts' jurisdiction, which was overturned in the Supreme Court. It really does not add much if anything to what this Court has to decide on Issue 1.
(d) SPDC v Amaro (2000) 10 NWLR 248
(i) Representative plaintiffs claimed s36 of the Petroleum Act provides for "fair, reasonable and adequate compensation and/or damages" as a result of an oil spill from an oil pipeline. The pleaded causes of action were Rylands v Fletcher, breach of (possibly) statutory duty, nuisance and negligence. The report does not explain what breach of what duty was alleged. "Fair, reasonable and adequate compensation and/or damages" is provided for by the Petroleum Act, whereas it is "just" compensation under the OPA. It is unclear what finding the court below made about such breach as the appeal decision considers Rylands v Fletcher and negligence, albeit primarily concentrating on jurisdictional matters.
(ii) The parties did not put forward, and the Court of Appeal did not consider, arguments about whether the common law or statutory remedies were to be treated as different or as to supersession of the common law by the OPA. It is certainly arguable that, when Rowlands JCA considered the applicability of Rylands v Fletcher (see e.g. at Page 273H), he was not considering the impact of the OPA at all.
(e) NNPC v Sele [2004] 5 NWLR 379
(i) Plaintiffs for themselves and in a representative capacity sued NNPC for pollution to land and water caused by crude oil spillages from NNPC's "burst oil wells 2 and 4 Abure location delivery line". It seems that the cause of action was in negligence; the judge below did find negligence and the Court of Appeal (per Muntaka-Coomassie JCA at Page 426) held:
"I hold the view that after considering the stance taken by the learned trial Chief Judge on this point failure of the defendants to take reasonable steps to avoid bursting of their pipelines caused the spillage and the burden is on them to prove lack of negligence. The appellants cannot run away from the fact that initially they did nothing to clean up the spilled crude oil thereby allowing the spillage to persist and the effect of this dangerous thing to continue. The appellants failed to adduce evidence to show that they attempted to prevent the escape of same…Their negligence caused the burst delivery line/pipeline which I think is actionable and I so hold."
(ii) Much of the appeal was concerned with the effect of continuing damage on a limitation defence. No issues involving the OPA were raised or determined.
(f) SPDC v Tiebo [1996] 4 NWLR 657, [2005] 9 NWLR 439
(i) Plaintiffs for themselves and in a representative capacity sued Shell for negligence and under the rule in Rylands v Fletcher and liability was so found at first instance. The Court of Appeal dismissed the appeal and there is no reliance or any mention of the OPA as having any impact.
(ii) The Supreme Court (in which Justice Oguntade gave the lead judgment) noted at Page 453:
"None of the issues formulated by the appellant contests the correctness of the liability in negligence as ascribed to the appellant by the trial court in its judgment. This makes it necessary for me to discuss only the facts, as are relevant, on the awards of damages and costs which are being challenged in this appeal".
(iii) Given this view, the Supreme Court did not consider the possibility of there being or not being claims in parallel under the OPA and at common law.
(g) SPDC v Ohaka [2008] 8 CLRN 94
(i) The plaintiff sued Shell in the Federal High Court following an oil spill from an oil pipeline. The claim was brought under the OPA, in negligence and under the rule in Rylands v Fletcher. The defendant contended that the spill was caused by sabotage. Although no negligence was found, the sabotage defence was rejected and judgment was entered, so far as I can ascertain on a Rylands v Fletcher basis. The Court of Appeal rejected the defendants' appeal on the sabotage point. Galadima JCA in the lead judgement set out Section 11(5)(c) of the OPA (Page 100), saying that it was "the operative law at the time of the incident…" and going on to say:
"It is instructive to note that sub paragraph (c) of the Oil Pipeline Act (supra) provides for strict liability akin to the rule in Rylands v Fletcher (supra). In the case at hand, however, the defence of act of third party has not been established."
He said at Page 103:
"It is quite significant to note that the Oil Pipeline Act (supra) in its sections 11(1), 5(c) and 20(2)(d) provide for the right of any person to damages who may have injuriously suffered harm or damage as a result of, or leakage from, oil-pipelines or, as in this case, except if and where the damage suffered is on account of his own default or on account of the malicious act of a third person"
(ii) It is not unfair to say that Saulawa JCA focussed on Section 11(5)(c) as founding the right to sue. He said at Page 106:
"The fact that any person suffers any damage or harm from the leakage of oil pipelines…as in the instant case is entitled to damages is not in doubt. See Section 11(5)(c) and 20(2)(d) of the [OPA]…"
(iii) It would be unfair and wrong to say that the learned judge was addressing what is Issue 1 in the current proceedings but he does appear to be giving primacy to the statutory remedy, if anything.
(h) SPDC v Edamkue [2003] 11 NWLR 533 [2009] 14 NWLR 1
(i) Plaintiffs sued Shell for damages in relation to an explosion and oil spillage; it is not absolutely clear from the Supreme Court judgments if this related to a pipeline at all (e.g. Tobi JSC and Fabiyi JSC referring to spillage in an "oil well" (Pages 34 and 38); the Court of Appeal report refers to the explosion occurring at a flow station within an oil field). The claim was based on negligence and Rylands v Fletcher, and the substantive defence was based on the oil spillage being caused by a third party. The OPA is not mentioned in the Supreme Court or Court of Appeal judgments, albeit there is mention particularly of Rylands v Fletcher and the application of res ipsa loquitur to that cause of action.
(ii) It is clear that the Courts in this case simply did not and were not asked at either level to consider the possible impact of the OPA; it was not in issue. I do observe that the third party sabotage defence is one which is available both in Rylands v Fletcher and under the OPA and I can not see that, in this regard, either decision would have been different if only looked at under the OPA if it was applicable at all (which I somewhat doubt).
(i) SPDC v John [2011] 2 NWLR 236
(i) It is common ground that this Court of Appeal case was concerned with a damages claim for negligence and private nuisance. It seems from the lead judgment of Abdul-Kadir JCA that it was not a pipeline case but an oil well spillage. This may well explain why there is no reference to the OPA in that judgment.
(ii) This case does not help at all on the supersession issue.
Issue 2: Whether SPDC can be liable under Section 11(5)(b) of the OPA 1990 to pay just compensation for damage caused by oil from its pipelines that has been released as the result of illegal bunkering and/or illegal refining?
"The holder of a licence shall pay compensation -
(a) to any person whose land or interest in land (whether or not it is land in respect of which the licence has been granted) is injuriously affected by the exercise of the rights conferred by the licence, for any such injurious affection not otherwise made good; and
(b) to any person suffering damage by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work, structure or thing executed under the licence, for any such damage not otherwise made good; and
(c) to any person suffering damage (other than on account of his own default or on account of the malicious act of a third person) as a consequence of any breakage of or leakage from the pipeline or an ancillary installation, for any such damage not otherwise made good.
"…it is a fundamental principle of interpretation that ordinary words should be given a clear and unambiguous meaning and that the court should not introduce its own words in interpreting a statute." [per Opene, JCA, in UBRD v Alka and others (1998) 2 NWLR (Pt 358) 328 at 338 – 339].
"24. If any person hinders or obstructs any person duly authorised in accordance with the provisions of this Act from entering upon taking possession of or using any lands in pursuance of this Act, the person so hindered or obstructed may apply ex parte at any time to the High Court exercising jurisdiction in the area for a writ of possession and such court may issue a writ of possession addressed to the sheriff under which any officer of the sheriff or police officer may forthwith eject any person so withholding possession.
25. Every person who shall wilfully hinder or obstruct any person duly authorised from entering upon or taking possession of or using any land in pursuance of the provisions of this Act, or who shall molest, hinder or obstruct such person when in possession of such lands, or shall hinder or obstruct any officer of the sheriff or police officer when executing a writ of possession, shall be liable on summary conviction to a fine of fifty naira or to imprisonment for three months."
Section 24 points to a legal process whereby a licencee can protect itself by obtaining a court order against third parties who are interfering with pipelines but, if the third parties are criminal gangs illegally syphoning off oil from pipelines, it is not realistic to expect that any such order will have much effect assuming that the licencee knows the name of the third parties involved. Section 25 makes it a criminal offence to hinder or obstruct the licencee and I assume that illegal puncturing of pipelines would amount such criminal activity. Of course there will be other criminal statutes and codes which address theft and malicious damage.
"Clearly this paragraph (b) embodies distinct tort in statutory form it provide for negligence on the part of the Defendant to maintain and repair their pipelines. There is therefore a duty on the Defendant to maintain their pipelines. In the instant case the Defendant defence is that they were chased out of Ogoni land the area of impact and they stopped operation in that area. The Plaintiffs however led evidence stating that the Defendant is still in operation in Zaakpon as long as their equipments are still in the area. From all the evidence adduced by the parties, it is indisputable that the Defendant's facilities are still in the area unattended to and not maintained because the community chased them away from operating in their area. The Community to that extent is to be held responsible for not allowing the Defendant in the area of impact so as to maintain the facilities. In the circumstance I cannot find that the Defendant is negligent in not maintaining their facilities in accordance with S11(5)(b) of Oil Pipeline Act. Nevertheless S.11(5)(C) provides for strict liability akin to the Rule in RYLANDS AND FLETCHER." (emphasis added)
The judge however found that Shell had not proved that the spillage had been caused by the "independent act of [a] third party" and that it was "caught by the provision" in Section 11(5)(c) of the OPA (Page 27).
"Section 11 (5b and c) of the Oil Pipelines Act makes a holder of a [licence] (in this case, the appellant) liable to pay compensation to any person suffering damages as a result of the negligence of the agent or servants or workmen of the appellant but excludes liability when the damage is caused by the default of the person suffering damage or the malicious act of a third person".
He clearly elided the two sub-sections (although he did not provide a reason for doing so) but the rest of his judgment on this ground of appeal concentrates on Section 11(5)(c), which suggests that his remark was just shorthand. The appeal was dismissed.
"...the reliefs sought by the Plaintiffs as contained in paragraphs 18 and 19 of the Amended Statement of Claim deal with the question of damages which the Plaintiffs seek upon proof that it was the negligent conduct of the Defendant that cause the alleged damage and losses they suffered when the incident occurred on 5/1/2001."
"I do not agree with the view [of the plaintiffs' Counsel] that the damage they suffered was as a result of negligence on the part of the defendant to act on the intelligence report of possible attack earlier than when the incident occurred. This is because it still does not derogate from the asserted and signed for fact that the cause of the incident was 3rd party interference…the spill was as a result of third parry interference…in the circumstance and with the weak evidence to the contrary by the Plaintiffs, I am satisfied that the defence in law of a 3rd party interference or sabotage which the provision of the statutory enactment [Section 11(5)(c)] enable the Defendant to plead as its defence stands proved and unassailable by the evidence…Therefore the failure to prove by any figment of the imagination that purported damages they suffered was as a result of the negligence of the Defendant or its carelessness, one is left with no choice than to hold that the maxim "RES IPSA LOQUITUR" as well as the rule in RYLANDS v FLETCHER are not applicable…"
"Reading and construing the provisions of these enactments, I have no doubt that it is the intention of the legislature to provide a plea outside the common law, by way of statutory defence to the defendants".
He went on at Page 33 to say;
"…what the plaintiffs require…is that the Defendant should post security men on all paths/routes where it had laid pipes and to keep a 24 hour vigil to ensure that 3rd parties – which is the main plank of the Defendant's defence, do not tamper with its facilities: This, if it is to be done, I believe must be in respect of not only the Ughelli-Rapele Pipeline, but for all pipelines laid and buried throughout… the country where oil or oil products are conveyed via the same medium. That, I hold the view is neither practicable nor realistic."
The claim was dismissed.
"(h) the right of way shall be regularly patrolled for prompt detection of any line break, encroachment or any other situation that may endanger the safety of the pipeline.
(i) any line break, encroachment or dangerous situation detected under sub paragraph (h) of this paragraph shall be promptly reported to the Department.
(j) all underwater crossings shall be inspected not less than once in 5 years to ensure that-
(i) there is sufficient cover for the pipeline, and
(ii) the safety of the pipeline at the crossing is not endangered in any way;
(k) any repair to the pipeline shall be carried out in accordance with
(i) good pipeline practice
(ii) the safety provisions contained in the standards API RP 1107 and API RP 1111 or their recognised equivalent standards.
(l) the repaired section of the pipeline shall be pressure tested at the same expected operating conditions relating to a new pipeline…"
"When interpreting the provisions of a statute which contains only general principles on a subject, it is permissible to look at those regulations which were prepared contemporaneously with the statute."
"A study of the cases and of the leading textbooks (Craies on Statute Law, 7th ed. (1971), p. 158, Maxwell on Interpretation of Statutes 12th ed. (1969), pp. 74-75, Halsbury's Laws of England, 3rd ed., vol. 36 (1961), para. 606) appears to me to warrant the formulation of the following propositions:
(1) Subordinate legislation may be used in order to construe the parent Act, but only where power is given to amend the Act by regulations or where the meaning of the Act is ambiguous.
(2) Regulations made under the Act provide a Parliamentary or administrative contemporanea expositio of the Act but do not decide or control its meaning: to allow this would be to substitute the rule-making authority for the judges as interpreter and would disregard the possibility that the regulation relied on was misconceived or ultra vires.
(3) Regulations which are consistent with a certain interpretation of the Act tend to confirm that interpretation.
(4) Where the Act provides a framework built on by contemporaneously prepared regulations, the latter may be a reliable guide to the meaning of the former.
(5) The regulations are a clear guide, and may be decisive when they are made in pursuance of a power to modify the Act, particularly if they come into operation on the same day as the Act which they modify.
(6) Clear guidance may also be obtained from regulations which are to have effect as if enacted in the parent Act."
"It is settled law that a subsidiary legislation derives its authority and validity from and subject to the provisions of the parent enabling statute. It follows therefore that a subsidiary legislation cannot expand or curtail the provisions of the substantive statute. It must be within the authority derived in the main enabling statute."
He goes on to say that even "if this were not the case, it is highly unlikely that secondary legislation passed some years after a primary statute was enacted, would be used as an interpretative guide for that statute. The OPA was enacted in 1956 whereas the Regulations did not follow until 1965". I am not satisfied that the Olanrewaju case is particularly helpful because that case was concerned with whether subsidiary state legislation was inconsistent with the superior Chiefs Law. The Court ruled that it was inconsistent with the primary statute and so was void to that extent. tc "Context from related legislation: The Oil and Gas Pipeline Regulations 1965 (\"the 1965 Regulations\")" \f C \l 2
"The legislative history of the OPA, in my view, clearly indicates that it must have been deliberate that such duty was not cast on license holders. In the course of the House of Representatives Debate on the Oil Pipelines Bill in 1956 in considering clause 11(5)(c) the question arose why the owner of the land who suffers damage on account of malicious act of a third person should go without compensation. The suggestion was made by the member who raised the issue that "after thorough investigation has been made the owner of the land should share the loss of the damage done to the pipeline." Responding the Acting Attorney General of the Federation explained thus: "…this, I think is asking the owners of the pipelines to be insurers of the land owners, not only against the default of the owners of the pipelines but against the land owners' own default or the malicious act of a third persons. I think it is unreasonable to ask for that form of indemnity."
Counsel refers to the introductory words of the Minster at the opening of the debate in the legislature:
"The licensee will be responsible for compensating not only those whose lands or interests in lands are dangerously affected, but also for damage suffered by any innocent persons by any breakage or leakage of the pipe, unless maliciously caused by a third party".
"To date, in Nigerian rulings finding that sabotage was involved, the court consistently ruled that the operator was not liable. This clearly demonstrates that under Nigerian law, operators have no general duty of care in respect of people living in the vicinity of the oil pipelines and oil facilities to prevent sabotage of these pipelines and facilities…"
The Court went on:
"4.41 As all the professors consulted by the parties also recognize in their legal opinions, under Nigerian law it is not ruled out that in the event of sabotage, in a specific case an operator may have committed a tort of negligence because it failed to act sufficiently in a specific situation to limit the risk of sabotage of a specific oil pipeline or oil facility. This also follows from the Nigerian ruling in Shell Petroleum Development Company (Nigeria) Limited v Otoko (1990). After all, this ruling held that "where the immediate cause of the [oil spill] is [sabotage], the [operator] is not liable, unless [the operator] (…) should have foreseen the sabotage and should have taken measures against this."….
…..4.43 In addition, since 1959 or 1960, the wellhead has been completely unprotected and freely accessible to saboteurs. In the opinion of the District Court, under these specific circumstances, SPDC should have realized that there was a very high risk that this aboveground Christmas tree would be sabotaged sooner or later. Accordingly, SPDC created a particularly dangerous situation at the IBIBIO-I well and allowed this situation to continue, which could be abused by a third party as referred to by Lord Goff (see ground 4.24 above). SPDC should have foreseen this obvious risk of sabotage and should have taken more and better preventive measures against this risk than simply removing the hand wheels normally used to operate the valves of a Christmas tree. In particular the people living in the vicinity who, like Akpan, generated income from land and fish ponds ran a significant risk of damage by sabotage of the aboveground Christmas tree – which was easy to commit. Thus, the District Court is of the opinion that under the special circumstances of this case, the requirement of proximity has been satisfied."
(a) It is clear that the legislature wished to differentiate between various different types and causes of oil spillage for compensation purposes. That is why, on the face of Section 11, there are three heads, injurious affection to land or land interest, damage caused by neglect and damage caused by breakage or leakage from pipelines except for "own default" or third party malicious act. The legislature obviously wanted to provide for compensation for all or any of these three heads and must be taken consciously to have provided only for the third party malicious act defence as against the third head. The parliamentary debates do not assist on this because the main quotation (of the Attorney-General) was provided in a debate on Section 11(5)(c).
(b) It is therefore necessary to consider what was meant by the words "neglect… to protect, maintain or repair any work structure or thing executed under the licence…"It is, rightly, common ground that this would require the licensee to put right a pipeline which had been sabotaged by criminal or separatist gangs or groups. The real issue revolves around whether the required protection gives rise to any liability separate to the maintenance and repair obligation, and, if so, how far the scope of protection goes.
(c) One can have regard to the principle that words in the same phrase may be read as sharing common characteristics and meanings ("noscitur a sociis"). Lord Diplock in Customs and Excise Commissioners v Viva Appliances Ltd [1984] 1 All ER 112 said at Page 116:
"The maxim noscitur a sociis may be a useful aid to statutory interpretation, but the contexts in which it is applicable are limited. In the case of a word which is capable of bearing various shades of meaning, the fact that it is included in a list of words of greater precision in which some common characteristic can be discerned may enable one to say that the chameleon word takes colour from those other words and of its possible meanings bears that which shares the characteristic that is common to other".
Whilst I do not consider that the word "protect" is exactly and necessarily synonymous with maintenance or repair, logic suggests that they may well overlap in practice; for instance, by a system of proper maintenance and repair, the licencee might well be protecting the pipeline against leakage or other failure and vice versa. A system of maintenance may well involve visually checking the pipeline from time to time and a system of sensors which identify drops in pressure may well pick up that there may have been a leakage and possible third party incursion; that could be said to involve protection of the integrity of the pipeline by such an early warning system.
(d) There are some nuances of meaning here because I am confident that "protect" can not have been intended to mean that protection was to involve policing or military or paramilitary defence of the pipelines. If one takes those activities out of the verbal equation, the usual definitions can be seen to be closer to shielding from danger, injury or change and keeping safe and taking care of.
(e) It is interesting that Section 11(5)(b) does not talk about neglect in the construction of the pipeline in the first place. Protection can thus be seen as a continuing function (post-construction) and can clearly cover such matters as protection against matters which might cause damage such as natural elements such as erosion (caused by soil, wind, weather or water) or deterioration in what has been provided (say, attributable to sun causing pipe coatings to crack or otherwise become ineffective).
(f) The Regulations are not really of much assistance. They were passed many years after the primary legislation. They do not fall obviously within Lord Lowry's summary. The Regulations are not expressed in any event to be exclusive; for instance it is not said in effect that compliance with them will relieve a licencee of liability to compensate under the OPA. That said, compliance with them will be some, possibly strong albeit not conclusive, evidence in support of a defence that there has been no "neglect".
(g) Short of a policing or military or paramilitary defence of the pipelines, it is my judgment that the protection requirement within Section 11(5)(b) involves a general shielding and caring obligation. An example falling within this would be the receipt by the licencee of information that malicious third parties are planning to break into the pipeline at an approximately definable time and place; protection could well involve informing the police of this and possibly facilitating access for the police if requested. Other examples may also fall within the maintenance requirement such as renewing protective coatings on the pipeline or, with the advent of new and reliable technology, the provision of updated anti-tamper equipment which might give early and actionable warning of tampering with the pipeline.
Issue 3: Whether compensation under the following pleaded heads of loss is recoverable by individual claimants under the OPA: shock and fear; annoyance, inconvenience, discomfort and illness; distress and anxiety; aggravated damages; exemplary damages?
"(2) If a claim is made under subsection (6) of section 11 of this Act, the court shall award such compensation as it considers just, having regard to -
(a) any damage done to any buildings, crops or profitable trees by the holder of the licence in the exercise of the rights conferred by the licence; and
(b) any disturbance caused by the holder in the exercise of such rights; and
(c) any damage suffered by any person by reason of any neglect on the part of the holder or his agents, servants or workmen to protect, maintain or repair any work, structure or thing executed under the licence; and
(d) any damage suffered by any person (other than as stated in such subsection (5) of this section) as a consequence of any breakage of or leakage from the pipeline or an ancillary installation; and
(e) loss (if any) in value of the land or interests in land by reason of the exercise of the rights as aforesaid,
and also having regard to any compensation already awarded in accordance with subsection (1) of this section."
It is clear that Sections 20(2) and 11(5) are interlinked and, if Section 11(5) is not engaged, Section 20(2) is immaterial. In modern parlance, Section 11(5) provides the "gateway" to entitlement to compensation and Section 20(2) provides what has to be had regard to in the fixing of such compensation.
"299. I do not consider that the Nigerian court would conclude that the absence of any express limitations on compensable damage means that licence-holders are potentially liable to compensate an indeterminate number of claimants for any and all losses that may have been causally connected to the oil spill on a "but for" basis. Although the OPA does allow some plaintiffs to recover compensation in circumstances in which they would not have so recovered at common law, that does not mean that the legislature intended to discard the rules that have been developed by the courts - in an effort to justice between the parties - to limit the scope of recovery.
311…sections 19 and 20 specifically require the courts to carry out this assessment of just compensation. Any court must operate in accordance with established principle – as it must act judicially. The legislature must, therefore, have expected the court to be guided by the usual principles of causation and remoteness - the aim of which are, of course, to do justice between parties.
Justice Oguntade says at Paragraph 116 of his supplementary report:
"It is plainly not the case that the Nigerian courts seek to compensate an indeterminate number of claimants "for any and all losses that may have been causally connected to the oil spill". The standard principles of remoteness are applied and adapted by the Nigerian courts. However, it is also clear that the Nigerian courts do not automatically follow the English common law position with regard to the recoverability of damages and in oil spill cases they are willing to compensate specific categories of claimants for certain heads of loss which may or may not be recoverable in England at common law."
The experts are however not agreed as to where and how the detailed definition then goes and where the dividing line comes in relation to the recovery of what in common law would be called general, aggravated and exemplary damages.
"The expression "damages", however cannot be regarded as synonymous with "compensation" and, indeed damages sometimes go beyond compensation; for example where a plaintiff is allowed to recover, by way of damages, much more than his actual loss."
"In the sense in which the term is usually used, 'compensation' may be defined as the pecuniary recompense which a person is entitled to receive in respect of damage or loss which he has suffered, other than as a result of an actionable wrong, litigated in the civil court, committed by the person bound to make the recompense. In this sense 'compensation' is distinct from 'damages', which are recoverable in respect of an actionable wrong. The two main classes of compensation consist of: (1) payments by public authorities in respect of land or other property lawfully acquired under statutory powers or injuriously affected by or under statutory provisions; and (2) payments by government departments or statutory undertakers in respect of damage to property or personal injuries".
"I agree with the underlying principle for the award of compensation or damages to a person who suffered damage from the tortious act of another as stated by the Learned Senior Advocate. That principle is to restore the person suffering the damnum as far as money can do that to the position he was before the damnum or would have been but for the damnum."
"…the court shall award such compensation as it considers just in respect of any damage done to any buildings, crops or profitable trees by the holder of the permit in the exercise of his rights thereunder and in addition may award such sum in respect of disturbance (if any) as it may consider just".
I accept his view that any "disturbance" under Section 20(1) is "disturbance" to or in relation to the damaged land, connoting "interference with use of the land causing a loss" (Third report Paragraph 280).
"Consistent with this, and as stated in Mayne and McGregor on Damages, 12th edition, article 739-749 p. 635-642, the measure of damages for injury affecting land is as follows:
1. Normal measure:- The normal measure of damages is the amount of the diminution of the value of the land. This will be the cost of replacement or repair or in the case of nuisance the cost of abatement. Thus, in Marsden v Calabrook Trading Co. (1954) CLY 890 (CA), the court awarded as damages for trespass to land the cost of making good the damage done. And in Rust v Victoria Graving Dock Co. (1887) 36 Ch D 113 (CA), where houses in the plaintiff's possession were flooded, the plaintiff was held entitled to recover, inter alia, the cost of repairing the damage to them.
2. Consequential losses – that is loss of user profits. In Rust v Victoria Graving Dock Co. (supra), the plaintiff suing the defendant in respect of the flooding on his building estate, recovered for the loss of rental on the houses in his possession for the period that they were being repaired and also for the delay in letting that part of the land in his possession which was vacant.
3. Prospective loss – damages for prospective loss are in general recoverable....
A landowner whose arable land which generates income is damaged and rendered unproductive by oil blow-out as in the instant case can recover damages under any or all of the above heads of losses."
It would be fair to say that this is an illustration of the types of compensation recoverable under a statute which on its face is more obviously concerned with physical disturbance to land or land rights.
"We do not think this case will apply to the present consideration since the salt business which the appellant…in that case was carrying on on the land prior to the acquisition had stopped; it was yielding nothing and the buildings on the land had been left to rot. The salt work according to evidence was not productive and had been closed down. It was not a going concern. We approve of this decision [the first instance decision in the case with which the Supreme Court was concerned] because a claimant who is to be compensated for disturbance has to prove loss owing to the disturbance. The disturbance consists in the alteration of something that would otherwise have continued."
This case can be seen as an example of what might be seen as disturbance to business.
"Q…I'm simply asking you whether you consider that, having regard to the words used in the OPA and the nature of the discretion in the OPA, as a matter of construction of the OPA, personal distresses are recoverable?
A. Maybe under the common law but not under the OPA. That's what I'm saying."
"The purport of s 11(5)...is that once a person suffers damage as a consequence of spillage through no fault of his or a third person the polluted is entitled to compensation.
In the instant case it has been shown that the plaintiff's fish ponds were impacted and he cannot fish in the same land.
What then is the basis of assessment of compensation? The statutory provision under s 20(2) stipulates that the court shall award such compensation as it considers just after considering any damage suffered by the person and loss in value of the land.
S 20(3)...goes further to stipulate that in determining the loss in value of the land of a claimant the court shall assess the value of the land....
...I concede to [the] submission that s 20(3) applies where plaintiff's claim is for loss in value in interest in land. The plaintiff's case does not relate to loss in value of land rather it is on damage to land. It is therefore not for the plaintiff...to first establish the value of the land...the burden of proof is not the same as that set out under special damages. All plaintiff is required to establish is nature of damage and established what is damaged if claim is under the Oil Pipelines Act. The Court will then award such compensation as it considers just...." (Pages 22-3)
From this decision it is indisputable that the decision of what is fair and adequate damages is that of the Court after looking at the whole scenario and under due caution looking at the facts presented assess what is just, equitable and suitable to restore the plaintiff whose fish ponds were damaged to a near position to where the fish ponds were not impacted. This therefore requires an exercise of the decision of a reasonable man. Therefore a claim for fair and adequate compensation amounts to a claim for general damages not special damages. In UBA Plc v, Samba Pet Co Ltd 2002 16 NWLR Pt. 793 CA 361 the Court of Appeal held that general damages is quantified or calculated by relying on what would be the opinion and judgment of a reasonable person in the circumstance of the case, since general damages is always at large. The trial court can also take into account the motive and conduct of the defendant where they aggravate the plaintiff's injury." (Pages 24-5)
"[A plaintiff witness] told the court their livelihood changed. They are fishermen and they fish in the Rivers and swamps polluted. They are entitled to be paid compensation. General damage has been described as the kind of damage which the law presumes to flow from the wrong complained of. (Page 15)
I therefore find that the defendant paid Ihuama Community for water rights and community shrine polluted as evidenced in Exhibit C. There is no evidence that the individual fishermen, that is, the plaintiffs, are entitled to damages for inconveniences resulting from the spillage. The plaintiffs claim succeeds in part. The plaintiffs failed to establish special damages. Consequently claim on special damage is dismissed. The claim on general damages succeeds. I award general damages in the sum of N600,000 in favour of the plaintiffs against the Defendants". (Page 16)
"Sometimes, however, there is no market for the particular class of goods; but no one has ever suggested that, because there is no market, there are no damages. In such a case the jury must do the best they can, and it may be that the amount of their verdict will really be a matter of guesswork. But the fact that damages cannot be assessed with certainty does not relieve the wrong-doer of the necessity of paying damages for his breach of contract."
"[The plaintiffs] were paid fully only for the crops and economic trees damaged at the time of the incident, that certainly could not amount to fair and adequate compensation as the damage the respondents suffered went beyond a mere damage to crops and economic trees for, according to the experts called on both sides the "respondents" arable land was heavily polluted and rendered unproductive for many years. (Page 176)
On the award of the sum of N250,000.00 for shock and fear, the appellant company does not appear to dispute the calculation by which that figure was arrived at as contained in the referees report....under the subhead "General Inconvenience". The contention of the learned Senior Advocate is that the claim was too remote. In Mayne and McGregor on Damages...the learned authors had this to say:
"Beyond physical damage to the land however, a nuisance may cause annoyance, inconvenience, discomfort or even illness to the plaintiff occupier: Recovery in respect of these principally non-pecuniary losses is allowable and may be regarded as part of the normal measure of damages."
In Dooley v Conmell & Co Ltd [sic] (1951) 1 Lloyd's Rep 271 where a defective sling broke during locking operations on a ship and the goods dropped into the hold. The plaintiff, who was operating the crane and quite outside the area of injury to himself, suffered shock owing to his fear on account of the men working in the hold. It was held that he could recover. In Boardman v Sanderson (1964) 1 WLR 1317, the plaintiff was paying a bill in the office of a garage when the defendant started to reverse the vehicle in which he was conveying the plaintiff and his infant son. In doing so, he negligently ran over the boy's foot. The plaintiff did not see the occurrence but heard his son scream and ran to assist. He suffered shock and the Court of Appeal upheld the trial court's award of damages.
In Chadwick v British Railway Board (1967) 1 WLR 912 the plaintiff who took part in rescue work after a railway collision due to the defendant's fault suffered shock as a result of his experience. The defendants were held liable since shock to a rescuer was foreseeable. As the only point canvassed under the issue in controversy is whether damages for shock and fear are recoverable and being of the view that the above authorities establish the point positively, the award of N250,000.00 made by the learned trial Judge will not be disturbed.
"The basic position is, in my opinion, most clearly expressed in Professor Newark's classic article on The Boundaries of Nuisance in (1949) 65 L.Q.R. 480, when he stated (at p. 482) that the essence of nuisance was that "it was a tort to land. Or to be more accurate it was a tort directed against the plaintiff's enjoyment of rights over land. . . (Page 687 Per Lord Goff)
Finally, he proclaimed four theses which should be nailed to the doors of the Law Courts and defended against all comers. The first was that:
"The term 'nuisance' is properly applied only to such actionable user of land as interferes with the enjoyment by the plaintiff of rights in land."
There are many authoritative statements which bear out this thesis of Professor Newark. I refer in particular to Sedleigh-Denfield v. O'Callaghan http://www.bailii.org/uk/cases/UKHL/1940/2.html[1940] AC 880, 902-903, per Lord Wright; Read v. Lyons http://www.bailii.org/uk/cases/UKHL/1946/2.html[1947] AC 156, 183, per Lord Simonds; Tate & Lyle Ltd. v. Greater London Council http://www.bailii.org/uk/cases/UKHL/1983/2.html[1983] 2 AC 509, 536-537, per Lord Templeman; Fleming, The Law of Torts, 8th ed. (1992), p. 416.
Since the tort of nuisance is a tort directed against the plaintiff's enjoyment of his rights over land, an action of private nuisance will usually be brought by the person in actual possession of the land affected, either as the freeholder or tenant of the land in question, or even as a licensee with exclusive possession of the land (see Newcastle-under-Lyme Corporation v. Wolstanton Ltd. [1947] Ch. 92, 106-108, per Evershed J.); though a reversioner may sue in respect of a nuisance of a sufficiently permanent character to damage his reversion. It was however established, in Foster v. Warblington Urban District Council [1906] 1 KB 648, that, since jus tertii is not a defence to an action of nuisance, a person who is in exclusive possession of land may sue even though he cannot prove title to it. (ibid Page 688)
Subject to this exception, however, it has for many years been regarded as settled law that a person who has no right in the land cannot sue in private nuisance. For this proposition, it is usual to cite the decision of the Court of Appeal in Malone v. Laskey [1907] 2 KB 141 (ibid Page 689)
It follows that, on the authorities as they stand, an action in private nuisance will only lie at the suit of a person who has a right to the land affected. Ordinarily, such a person can only sue if he has the right to exclusive possession of the land, such as a freeholder or tenant in possession, or even a licensee with exclusive possession. Exceptionally however, as Foster shows, this category may include a person in actual possession who has no right to be there; and in any event a reversioner can sue in so far his reversionary interest is affected. But a mere licensee on the land has no right to sue. (ibid Page 692)
If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment. It follows that the quantum of damages in private nuisance does not depend on the number of those enjoying the land in question. It also follows that the only persons entitled to sue for loss in amenity value of the land are the owner or the occupier with the right to exclusive possession.
Damages for loss of amenity value cannot be assessed mathematically. But this does not mean that such damages cannot be awarded: see Ruxley Electronics Ltd. v. Forsyth http://www.bailii.org/uk/cases/UKHL/1995/8.html[1996] AC 344 per Lord Mustill at 360-361 and Lord Lloyd of Berwick at 374. (per Lord Lloyd at Page 696)
Up to about twenty years ago, no one would have had the slightest doubt about who could sue. Nuisance is a tort against land, including interests in land such as easements and profits. A plaintiff must therefore have an interest in the land affected by the nuisance… (per Lord Hoffman at Page 702)
St. Helen's Smelting Co. v. Tipping was a landmark case. It drew the line beyond which rural and landed England did not have to accept external costs imposed upon it by industrial pollution. But there has been, I think, some inclination to treat it as having divided nuisance into two torts, one of causing "material injury to the property," such as flooding or depositing poisonous substances on crops, and the other of causing "sensible personal discomfort" such as excessive noise or smells. In cases in the first category, there has never been any doubt that the remedy, whether by way of injunction or damages, is for causing damage to the land. It is plain that in such a case only a person with an interest in the land can sue. But there has been a tendency to regard cases in the second category as actions in respect of the discomfort or even personal injury which the plaintiff has suffered or is likely to suffer. On this view, the plaintiff's interest in the land becomes no more than a qualifying condition or springboard which entitles him to sue for injury to himself.
If this were the case, the need for the plaintiff to have an interest in land would indeed be hard to justify....But the premise is quite mistaken. In the case of nuisances "productive of sensible personal discomfort," the action is not for causing discomfort to the person but, as in the case of the first category, for causing injury to the land. True it is that the land has not suffered "sensible" injury, but its utility has been diminished by the existence of the nuisance. It is for an unlawful threat to the utility of his land that the possessor or occupier is entitled to an injunction and it is for the diminution in such utility that he is entitled to compensation.(ibid at Page 705-6)
Once it is understood that nuisances "productive of sensible personal discomfort" do not constitute a separate tort of causing discomfort to people but are merely part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in the land falls into place as logical and, indeed, inevitable. (ibid Page 707)
The tort of nuisance is an invasion of the plaintiff's interest in the possession and enjoyment of land. It is closely linked to the law of property and is often regarded as part of the law of neighbourhood. (per Lord Hope at Page 723)
So where it is the tort of nuisance which is being relied upon to provide the remedy… the plaintiff must show that he has an interest in the land that has been affected by the nuisance of which he complains. Mere presence on the land will not do. He must have a right to the land, for example as owner or reversioner, or be in exclusive possession or occupation of it as tenant or under a licence to occupy. It may then be said that there is an unlawful interference with his use or enjoyment of the land or of his right over or in connection with it: see Newcastle-under-Lyme Corporation v. Wolstanton Limited [1947] 1 Ch. 92, 107 per Evershed J. Exceptionally, as in Foster v. Warblington U.D.C. [1906] 1 KB 648, his actual occupation of the land will be enough to demonstrate that he has a sufficient interest for a right of action in nuisance to exist. For the purposes of the present case however the important point to notice is that which Lord Wright made in Sedleigh-Denfield v. O'Callaghan http://www.bailii.org/uk/cases/UKHL/1940/2.html[1940] AC 880, 902-3: "With possibly certain anomalous exceptions, not here material, possession or occupation is still the test". (ibid at Page 724)
"The award of general damages is improper where the quantum of loss is ascertainable and our law frowns at double compensation and will not allow a litigant who made claims for specific losses suffered by him to add another figure under the head of general damages." (see Page 566)
"On the question whether the compensation under the head of claim for fear and shock is appropriate, it is submitted that that head of claim has been recognised by the courts. The decision [in Farah] is cited in support. (Page 592)
The position of the law relating to right of fishery even in tidal water is recognised and is said not to be affected by the provisions of section 3(1) of Minerals Act….It follows from the above statement of the law by the Supreme Court that the plaintiffs in this case can claim in respect of losses they suffered by the pollution of the rivers, ponds etc which they were using for fishing purposes. The provisions of section 3(1) of the Minerals Act therefore have not taken away their right to fish in the rivers and they can claim for loss they suffered as a result of the spillage.(Page 595-6)
The position in law is that the common law of England which is applicable in Nigeria recognizes that nuisance may either be a public nuisance or a private nuisance. A public nuisance is one which inflicts damage, injury or inconvenience to the generality of the population or upon a class of people who come within its ambit. The law is that a private individual has a right of action for public nuisance if he can establish that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public. Such individual is also permitted to institute proceedings in his own name in respect of an injury sustained from a public nuisance. See Adediran v Interland Transport Ltd. (1991) 9 NWLR (Pt.214) 155, (1991) 22 NSCC (Pt.2) 707.
The plaintiffs in the present case alleged that as a result of the oil spillage which arose from the defendant's oil exploration, they suffered losses in that there was extensive damage to the rivers, fish ponds, forests and vegetation from where they make their living. It is therefore not in doubt that they can claim for their losses. Similarly, the law permits a group of people who suffered from a public nuisance, as in the present case, to institute a group action for damages arising from such public nuisance.(Page 597)
"Was the court below right in confirming the award of general damages for hazards, general inconveniences and miscellaneous losses and expenses after holding that fear was not a recognised head of damages in negligence?" (Page 453)
Justice Oguntade set out his reasoning in his judgment at Pages 468-9;
"With respect to the award of five million naira as general damages a different consideration applies. This was an award made by the trial judge sitting as a jury and judge of the facts. The only circumstances justifying an interference with the award of general damages made by a court of trial by an appellate court is when the award is manifestly too high or manifestly too little so as to raise the inference that it was an erroneous assessment of the damage suffered or whether the trial judge had made the award relying on a wrong principle....
The evidence before the trial judge which he accepted was that extensive damage was done to the crops, farms, farmlands, ponds, creeks of the plaintiffs. There was also evidence of widespread environmental pollution. It has not been shown to us that the N5m general damages awarded was manifestly too high as to be classified an erroneous assessment of the damages done to the plaintiffs."
"Learned counsel for the appellants...submitted that there is no basis for the award of general damages...All in all learned counsel argued that since the award of general damages amounted to double compensation the issue should be resolved in favour of the appellants...Learned counsel for the respondents....disagreed with the contentions and the submissions of the appellants. The question of double compensation does not arise in this case as the case was not founded on breach of contract....the claims were not the same...the 1st plaintiff witness, argued the appellants counsel, testified that the additional amount claimed as general damages was for deprivation of drinking/cooking/bathing water and other domestic disturbances....According to him...the water was poisoned, polluted...the plaintiffs also suffered considerable inconveniences and disturbances as regards their use of the creek water for domestic purposes, washing and bathing there being no pipe born water supply in the plaintiff community. The trial courts findings and subsequent decision on this issue cannot be faulted. The award by the trial judge was based on a correct principle of law. The award of this general damages by the court was not erroneous estimate."
That said, the Court reduced without reasons the award to N2m (c. £7,300) (Page 431). A forensic problem for the Court here in England is that it has not been shown on what basis and for what the original award of general damages was made, although it seems that the Court of Appeal necessarily must have had the first instance judgment.
"I agree with the submission of Chief Bozimo for the respondents that the award of damages for temporary loss of fishing made in the judgment ought not be seen as an award to the individual fishermen per se. Rather it is a compensation payment made to the respondents community for loss of income suffered by the community members who have a common interest or right to fish as members of respondents community to the exclusion of every other person who is not a member of the community. The right is communal not individual. It is enjoyed communally because it derives from a common and joint ownership and or possession of right to fish in Ofougbene ponds, creeks etc. (Page 276)
"I have perused the record of proceedings and I am satisfied that special damages were proved as required by law...Apart from the evidence of the valuer...the respondents as represented by the plaintiffs on record and their witnesses gave direct evidence of the special and general damages suffered by them as a result of the spillages. Evidence which the trial judge accepted. In view of the direct compelling and largely uncontradicted evidence available to the learned trial judge I am convinced that the damages awarded...are not baseless or erroneous or in any event excessive as the awards are amply supported by evidence." (Page 277)
"Aggravated damages… result out of malevolence on the part of the tortfeasor, spite by him or just the manner of committing the wrong which injures the plaintiff's proper feeling of dignity and pride."
In Ilouno v. Chiekwe (1991) 2 NWLR (Pt 173) 316, Uwaifo JCA referred to Halsbury's Laws with approval, stating (at Page 325) that factors to be considered included whether:
"The defendant may have acted with malevolence or spite or behaved in a high-handed, malicious, insulting or aggressive manner…. Aggravated damages are designed to compensate the plaintiff for his wounded feelings".
In Anthony Odiba v. Tule Azege (1998) 9 NWLR (Pt 566) 370 at Page 386, the Supreme Court referred to the conduct of the defendant as "aggressive in nature as it was reckless, vindictive, high-handed and utterly oppressive" and justifying aggravated damages against the appellant in question.
"Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation. Indeed, when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed."
"1114. Aggravated damages in tort.
In actions in tort, where the damages are at large, the court may take into account the defendant's motives, conduct and manner of committing the tort, and, where these have aggravated the plaintiff's damage by injuring his proper feelings of dignity and pride, aggravated damages may be awarded. The defendant may have acted with malevolence or spite or behaved in a high-handed, malicious, insulting or aggressive manner. The court may consider the defendant's conduct up to the conclusion of the trial, including what he or his counsel may have said at the trial. Such damages cannot be awarded for the tort of negligence. Conversely provocation on the part of the plaintiff may reduce or eliminate aggravated damages in assault and battery.
Aggravated damages are designed to compensate the plaintiff for his wounded feelings; they must be distinguished from exemplary damages which are punitive in nature and which may be awarded only in a limited category of cases.
In cases decided before 1964 the distinction between aggravated and exemplary damages was not always appreciated, and the terminology used in such cases is therefore unreliable. It seems, however, that aggravated damages can be awarded in actions where the damages are at large, that is to say where the damages are not limited to the pecuniary loss that can be specifically proved, and in particular in actions of defamation, intimidation, false imprisonment, malicious prosecution, trespass to land, persons or goods, conspiracy, infringement of copyright, deceit, nuisance, unlawful interference with business and abuse of process.
A structured approach to the assessment of aggravated damages has been prescribed for false imprisonment and malicious prosecution. These damages are to compensate for injured feelings when there are aggravating elements rendering a basic compensatory award inadequate. A jury should assess these two awards separately. Aggravated damages should not usually exceed a recommended amount but only in exceptional cases where the basic award is modest should they exceed that award and the combined awards should not exceed fair compensation. These principles may apply to other torts.
Quite apart from seeking aggravated damages in the sense used above, the plaintiff is always at liberty to point to aspects of the defendant's conduct which have increased his damage or caused additional heads of damage. Thus in an action for libel the defendant's persistence in a plea of justification or his repetition of the original libel at the trial may increase the damages to which the plaintiff is entitled for injury to reputation."
"I turn to the claim for aggravated damages. This is made in paragraph 27 of the statement of claim and is as follows:
"Further, the plaintiffs will seek aggravated damages on the basis that their feelings of indignation were justifiably aroused by the highhanded manner in which the defendants dealt with the incident, as set out in paragraphs 19 to 24 inclusive and, because, they continued to drink the water for longer than would have been the case had the defendants reacted promptly, frankly and efficiently."
I have already cited the passage from the speech of Lord Devlin where he explains what aggravated damages are. In my judgment if the plaintiffs experienced greater or more prolonged pain and suffering because the nuisance continued for longer than it should have done or they drank more contaminated water with ill effect that is a matter for which they are entitled to be compensated by way of general damages.
Likewise, if uncertainty as to the true position caused by the defendants' lack of frankness following the initial incident led to real anxiety and distress, that is an element for which they are entitled to compensation under general damages for suffering. But anger and indignation is not a proper subject for compensation; it is neither pain nor suffering. Kralj v. McGrath [1986] 1 All E.R. 54 was a claim for damages for personal injury resulting from medical negligence. There was a claim for aggravated damages on the basis that the plaintiff had been subject to outrageous treatment at the defendant's hands in the course of childbirth. Woolf J. said, at p. 61:
"It is my view that it would be wholly inappropriate to introduce into claims of this sort, for breach of contract and negligence, the concept of aggravated damages. If it were to apply in this situation of a doctor not treating a patient in accordance with his duty, whether under contract or in tort, then I would consider that it must apply in other situations where a person is under a duty to exercise care. It would be difficult to see why it could not even extend to cases where damages are brought for personal injuries in respect of driving. If the principle is right, a higher award of damages would be appropriate in a case of reckless driving which caused injury than would be appropriate in cases where careless driving caused identical injuries. Such a result seems to me to be wholly inconsistent with the general approach to damages in this area, which is to compensate the plaintiff for the loss that she has actually suffered, so far as it is possible to do so, by the award of monetary compensation and not to treat those damages as being a matter which reflects the degree of negligence or breach of duty of the defendant."
I agree. Accordingly, I would strike out paragraph 27 of the statement of claim."
"I turn, lastly, to the claim in paragraph 27 of the master statement of claim for aggravated damages. The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants' admitted breach of duty. The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendants' conduct, the ordinary measure of damages will compensate. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damages. This is claimed in paragraph 27 on the basis that the plaintiffs' feelings of indignation were aroused by the defendants' high-handed way of dealing with the incident. I know of no precedent for awarding damages for indignation aroused by a defendant's conduct. Defamation cases in which a plaintiff's damages are increased by the defendant's conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff's feelings and self-esteem is an important part of the damage for which compensation is awarded. In very many other tort actions (and, for that matter, actions in contract, boundary disputes, partnership actions and other disputes) the plaintiff is indignant at the conduct of the defendant (or his insurers). An award of damages does not follow: nor, in my judgment should it, since this is not damage directly caused by the defendant's tortious conduct and this is not damage which the law has ever recognised.
Despite the judge's thoughtful and thorough judgment, I have in the end reached a different view and concluded that paragraphs 18 to 27 of the master statement should be struck out."
"It is and must be accepted that at least in cases of assault and similar torts, it is appropriate to compensate for injury to feelings including the indignity, mental suffering, humiliation or distress that might be caused by such an attack, as well as anger or indignation arising from the circumstances of the attack. It is also now clearly accepted that aggravated damages are in essence compensatory in cases of assault. Therefore we consider that a court should not characterise the award of damages for injury to feelings, including any indignity, mental suffering, distress, humiliation or anger and indignation that might be caused by such an attack, as aggravated damages; a court should bring that element of compensatory damages for injured feelings into account as part of the general damages awarded. It is, we consider, no longer appropriate to characterise the award for the damages for injury to feelings as aggravated damages, except possibly in a wholly exceptional case."
"(1) oppressive, arbitrary or unconstitutional action by servants of the Government…
(2) where the defendant's act which has been held to be tortious was done with a guilty knowledge, the motive being that the chances of economic advantage outweighs the chances of economic or even (perhaps) physical penalty. (Another act of deliberateness)." (page 30-1)
"Exemplary damages will now only be awarded in respect of causes of action for which they were awarded prior to the restatement of the law limiting their award to the three defined categories. This is a further restriction on their award. Torts which satisfy this criterion are assault and battery, defamation, false imprisonment, malicious prosecution, private nuisance, tortious interference with business, trespass to goods and trespass to land. Assault and battery and malicious prosecution qualify when committed by government servants, the remaining torts when committed for gain. Torts which do not satisfy this cause of action criterion include deceit, unlawful discrimination on grounds of sex, race or disability, infringement of patents, public nuisance, breach of European Union law treated as a breach of statutory duty. Damages in respect of equitable wrongs and for breach of an undertaking in damages also do not satisfy this test. In addition to these restrictions the court retains an overriding discretion which has developed a number of guiding principles. Exemplary damages are to be awarded only if the compensatory award is inadequate. For an award the plaintiff must have suffered from punishable behaviour but, equally, provocative or unco-operative conduct on the part of the plaintiff may negate or reduce an award. The fact that the defendant may be subject to criminal or disciplinary proceedings for the same cause may be taken into account in reducing or excluding an award as may the fact that the defendant acted in good faith. The fact that there are multiple plaintiffs, making assessment and apportionment complex, may also be taken into account. The fact that the European Court of Justice has said that local sanctions for breach of European Union law must have real deterrent effect has been held to require full compensatory, not exemplary, damages. Although exemplary damages are punitive, the standard of proof is civil. A claim for such damages must be specifically pleaded. It appears that a claim to exemplary damages may be based on vicarious liability and that it is not contrary to public policy to insure against such a claim. This is clearly so when liability is vicarious.
Where exemplary damages may be awarded the court should ask itself whether the sum it proposes to award as compensatory damages, which may include an element of aggravated damages, is adequate not only for the purpose of compensating the plaintiff but also for the purpose of punishing and deterring the defendant. Only if it is inadequate for the latter purpose should the court consider awarding additional exemplary damages.
The following considerations should be borne in mind: (1) that the plaintiff cannot recover exemplary damages unless he is the victim of the punishable behaviour; (2) that the power to award exemplary damages is a weapon that should be used with restraint; and (3) that the parties' means are relevant.
Exemplary damages may not be awarded in actions for breach of contract."
"Cases in the second category are those in which the Defendant's conduct
has been calculated by him to make a profit for himself which may well
exceed the compensation payable to the plaintiff. I have quoted the dictum
of Erle C.J. in Bell v. The Midland Railway Company. Maule J. in
Williams v. Curry, at page 848, suggests the same thing; and so does
Martin B. in an arbiter dictum in Crouch v. Great Northern Railway Com-
pany, [1856] 11 Ex. 742, at 759. It is a factor also that is taken into account
in damages for libel; one man should not be allowed to sell another man's
reputation for profit. Where a Defendant with a cynical disregard for a Plaintiff's rights has calculated that the money to be made out of his wrong-
doing will probably exceed the damages at risk, it is necessary for the law
to show that it cannot be broken with impunity. This category is not con-
fined to moneymaking in the strict sense. It extends to cases in which the
Defendant is seeking to gain at the expense of the Plaintiff some object,—
perhaps some property which he covets,—which either he could not obtain
at all or not obtain except at a price greater than he wants to put down.
Exemplary damages can properly be awarded whenever it is necessary to
teach a wrongdoer that tort does not pay.
To these two categories which are established as part of the common
law there must of course be added any category in which exemplary damages
are expressly authorised by statute.
I wish now to express three considerations which I think should always
be borne in mind when awards of exemplary damages are being considered.
First, the Plaintiff cannot recover exemplary damages unless he is the victim
of the punishable behaviour. The anomaly inherent in exemplary damages
would become an absurdity if a Plaintiff totally unaffected by some oppres-
sive conduct which the jury wished to punish obtained a windfall in
consequence.
Secondly, the power to award exemplary damages constitutes a weapon
that, while it can be used in defence of liberty, as in the Wilkes cases, can
also be used against liberty. Some of the awards that juries have made in
the past seem to me to amount to a greater punishment than would be likely
to be incurred if the conduct were criminal; and moreover a punishment
imposed without the safeguard which the criminal law gives to an offender.
I should not allow the respect which is traditionally paid to an assessment of
damages by a jury to prevent me from seeing that the weapon is used
with restraint. It may even be that the House may find it necessary to
follow the precedent it set for itself in Benham v. Gambling, and place some
arbitrary limit on awards of damages that are made by way of punishment.
Exhortations to be moderate may not be enough.
Thirdly, the means of the parties, irrelevant in the assessment of com-
pensation, are material in the assessment of exemplary damages. Every-
thing which aggravates or mitigates the Defendant's conduct is relevant."
(a) I am wholly satisfied on the evidence that exemplary damages are not recoverable under the OPA.
(b) The expressed emphasis in Sections 11(5) and 20(2) is on compensation. There is nothing to suggest that a claimant should recover more than will compensate him or her or those represented for the losses or injury incurred. It can not be compensation to award a financial windfall to a claimant who is otherwise fully compensated by other part of the money awarded.
(c) The use of the word "compensation" is if anything exclusive of any exemplary or punitive element in any financial award. One would have expected the legislature to use different wording (possibly such as "damages" or "compensation including punitive and exemplary allowances") if such an element was to be available.
(d) The OPA does provide for some punitive elements albeit not in the compensation sections. One of these in commercial terms is the most serious involving the termination of the licence (Section 27). Another is the provision within the permitted Regulations of criminal sanctions against the licencee.
(e) Section 20(2) does not give the court a discretion, let alone an unqualified one, to award compensation. Although in awarding compensation, it must award what it considers just, that justness is referenced to the 5 factors set out in Section 20(2) to which it has to have regard. If there was to be an exemplary element to which just compensation had to direct itself, one would have expected some reference in Section 20(2) to the bad conduct of the licencee in a sub-sub-section. There is none there or anywhere else in the OPA.
(a) In the King Felix Sunday Bebor Berebon proceedings Schedule of Loss, general damages are claimed for "Loss of Amenity of Land" for "amenities lost to the Claimants" (the whole of the Bodo Community). These amenities are said to include fishing, farming, hunting, wood gathering, cultivation, religious activities, domestic activities (e.g. washing, collecting water for cooking and cleaning food) and sanitary purposes. This loss of amenity is said in paragraph 51 to be "further reflected in the inconvenience, discomfort, illness and distress caused by the damage to Community Land (as is set out at paragraph 15 above)". Paragraph 15 talks about reduction in marine life, contaminated farmland with impacted production and yields, impact on ecosystem, deprivation of use of mangroves and other direct uses, increased erosion, impact on travel, loss of recreational trips, loss of ability to teach children how to fish, odour and presence of oil, inability to swim and play in the Bodo Creek and non-availability of the Creek for sanitation purposes.
(b) In the Celina Naadueba proceedings, the Amended Particulars of Claim reflect most but not all of the factors set out in Paragraph 15 referred to above.
(c) The Amended Master Schedule of Loss for the Individuals claims talks under the heading of General Damages (Paragraph 2.3) of: "Shock and Fear", "Annoyance, inconvenience, discomfort and illness", "Injurious affection" and "Ecological damage and injurious affection". The individuals also claim "their share" of the Community claims for ecological damage (Paragraph 2.4).
For convenience, I will call this compendiously "inconvenience etc", although I do not seek in any way to belittle the impact on the thousands of individuals as pleaded on their behalf.
(a) As for all OPA compensation, this must be "just" but it must relate to what has been injuriously affected, that is land or interest in land. I will not, and have not been asked to, determine what is encompassed by interests in land (as referred to in section 11 (5)(a)). I am told that there may be tribal and customary arrangements and what may be lawful or legally recognisable interests for any given claimant will have to await evidence at the full trial.
(b) The compensation could be or include capital diminution attributable to the oil pollution in question. That is an approach legislated for, albeit not on an exclusive basis, by Section 20(3). Assuming that the claimant is a tenant with what might properly be termed an interest in the land, the loss of or reduction in use of the land could found a claim for compensation, possibly based on the rental value or the loss of income of the tenant.
(c) It is possible that loss of amenity in relation to the land in question could be taken into account in the compensation awarded for the loss of or restrictions in the use and enjoyment of land, even if it can not be assessed with mathematical precision.
(d) Without an interest in land (however that is to be defined), there is no stand-alone right for an individual claimant to claim for general damages for inconvenience etc; there is no right to do so via section 11(5)(a). This is in any event entirely consistent with the long established law as adumbrated in the Hunter case.
(a) The meaning of the word "damage" in Sections 11(5) and 20(2) is informed by legal authority. Although in broad terms it means "loss or injury to person or property" (see Black's Law Dictionary), what is such a loss or injury can be ascertained from existing authority or at least strong pointers can be provided from precedent.
(b) The Nigerian Courts have not and indeed have not really been asked to analyse whether "damage" in the OPA encompasses inconvenience etc as a stand-alone part of "damage" without more. All or almost all the cases in which general damages for inconvenience etc are apparently allowed relate to cases in which the individual plaintiffs or communities have suffered often serious physical damage to lands, fishing ponds and the like. There has been no case in which a plaintiff, with no interest in land, but who has only suffered inconvenience etc, has claimed let alone recovered general damages for that. It would not be recoverable in nuisance or negligence or Rylands v Fletcher at common law, at least where the inconvenience etc stops short of personal injury.
(c) The Nigerian cases indicate that in practice claims for damages can and should as appropriate be classified and classifiable as "special" and "general" damages. The cases reveal confusion often between different plaintiffs in different cases as to under which appellation to place a claim for inconvenience etc; they sometimes appear under one or the others. On occasions the Courts identify that a claim has improperly been brought under the wrong label. Examples are Amaro and Edamkue. It seems clear from cases such as Tiebo that general damages are classifiable as a method of quantifying loss or damage to land, water and the like.
(d) There are some indications in Nigerian law that some aspects of inconvenience etc are not recoverable at least on their own. "Fear" was discounted by Onalaja JCA in the Court of Appeal in Tiebo.
(e) I do not consider that the word "disturbance" in Section 20(2)(b) encompasses mental disturbance, such as distress, worry, fear and the like. It is of interest that the structure of Section 20(2) follows Section 11(5) with the injurious affection being addressed primarily in Section 20(2)(a) but it is not until one gets to sub-sections (c) and (d) that one reaches the "damage" parts of Section 11(5)(b) and (c). That is a pointer, albeit not conclusive, that the disturbance relates to land or land interests. That coupled with the clearer use of the word "disturbance" in Section 20(1) as relating to land point more clearly to disturbance being related to land or land use.
(f) There is nothing in the OPA which directly suggests inconvenience etc can justify a stand-alone claim. I would have expected Section 20(2) to have mentioned in clear terms that regard should be had to personal inconvenience etc or like words. "Disturbance" does not obviously relate to inconvenience etc.
(g) I agree with Justice Ayoola that Section 20(2) does not give the Court some general discretion to award what might be just. As indicated earlier, what is needed is the damage suffered as envisaged in Section 11(5)(b) and (c); that provides the gateway or entitlement to compensation. The compensation is to be fixed by reference to the factors set out in Section 20(2) but in that exercise the Court must act justly. Pure judicial sympathy without more would not justify an award of compensation.
(h) Justice Oguntade appeared to concede, with propriety and logic, that compensation for "personal distresses" was not recoverable under the OPA.
Issue 4: Whether the amount of just compensation recoverable under the OPA 1990 in relation to damage arising from oil spills (save in respect of the claims for loss of earnings) will be assessed in accordance with the diminution in value of the land and/or interest in land which have been damaged and/or the loss of the amenity value of that land or interests therein and/or consequential loss? If not, what alternative measure should be used?
(a) There is no compensation at all unless the claimant establishes liability under Section 11(5), (a), (b) or (c), namely injurious affection of land, of a person whose land it is or who has a relevant interest in it, attributable to the exercise of the defendant's licence rights, damage to a person suffered by reason of neglect by the licence holder to protect, maintain and repair of work, structures or things executed under the licence and damage to a person suffered as a consequence of a breakage of or leakage from the licensed pipeline.
(b) Once one or more of these gateway factors are established by the claimant, he, she or the persons whom they properly represent are entitled to be awarded compensation as the Court considers just having regard to the factors set out in sub-sections (a) to (e) of Section 20 of the OPA.
"1083. The Court of Appeal considered, first, the basis on which damages in private nuisance are to be assessed as set out in Hunter v Canary Wharf [1997] AC 655. At [31] Waller LJ summarised the position in Hunter v Canary Wharf as follows:
"31. The speeches of the majority thus clearly establish that damages in nuisance are for injury to the property and not to the sensibilities of the occupier(s). That is so as much for the case of the transitory nuisance interfering with comfort and enjoyment of the land as it is for the case of the nuisance which occasions permanent injury to the land and to its capital value, or other pecuniary loss."
1084. In assessing loss of amenity, Waller LJ said that there might be direct market evidence of loss of rental value but continued at [33]:
"Otherwise, it is perhaps inevitable that the assessment of damages for loss of amenity will involve a considerable degree of imprecision. But if estate agents are to assist in placing a value on the relevant intangibles, whether by calculating the reduction in letting value of the property for the period of the nuisance or in some other way, we would expect them in practice to take into account, for the purposes of their assessment, the actual experience of the persons in occupation of the property during the relevant period. It is difficult if not impossible to see any other way of proceeding. As Lord Hoffman observed, the measure of damages for loss of amenity will be affected by the size and commodiousness of the property. If the nature of the property is that of a family home and the property is occupied in practice by a family of the size for which it is suited, the experience of the members of that family is likely to be the best evidence available of how amenity has been affected in practical terms, upon which the financial assessment of diminution of amenity value must depend."
1085. At [34] he said that, on ordinary principles, claimants must show that they have in truth suffered a loss of amenity before substantial damages can be awarded. He referred to cases of occupied property and said "So in this way also, as a matter of practicalities, the assessment of common law damages for loss of amenity to the land is likely to be affected by the actual impact of the nuisance upon the occupier, or the lack of it."
1086. He concluded at [35] and [36] by saying this:
"35. As a result it follows that the actual impact upon the occupiers of the land, although not formally the measure of common law damages for loss of amenity, will in practice be relevant to the assessment of such damages in many cases, including such as the present where a family home is in question and no physical injury to the property, loss of capital value, loss of rent or other pecuniary damage, arises.
36. In our view not one of the speeches of the majority provides any support for the view that the person who has the right to sue in nuisance is recovering damages on behalf of other occupiers of the property.""
"1090. As I said in awarding damages for nuisance based on loss of amenity, I had regard to all of the evidence of effects on the family members and took that into account in determining the diminution in the amenity value of the property, and therefore in determining the amount of damages for nuisance awarded to those with a proprietary right.
1093. In this case, in determining the question of whether it is necessary to award damages to the children to afford just satisfaction, I take into account the fact that I have awarded damages for nuisance to their parents and that in doing so I have reflected the whole family loss of amenity."
Issue 5: Whether awards of just compensation under the OPA, or awards of general damages at common law, should be valued by reference to previous awards made by the English Courts or by reference to the value of land and/or the cost of living in Nigeria?
11 (1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur…
14. (3) Without prejudice to the generality of subsection (2) above, nothing in this Part…
(b) affects any rules of evidence, pleading or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of the forum."
"In applying this distinction to actions in tort, the courts have distinguished between the kind of damage which constitutes an actionable injury and the assessment of compensation (ie damages) for the injury which has been held to be actionable. The identification of actionable damage is an integral part of the rules which determine liability. As I have previously had occasion to say, it makes no sense simply to say that someone is liable in tort. He must be liable for something and the rules which determine what he is liable for are inseparable from the rules which determine the conduct which gives rise to liability. Thus the rules which exclude damage from the scope of liability on the grounds that it does not fall within the ambit of the liability rule or does not have the prescribed causal connection with the wrongful act, or which require that the damage should have been reasonably foreseeable, are all rules which determine whether there is liability for the damage in question. On the other hand, whether the claimant is awarded money damages (and if so, how much) or, for example, restitution in kind, is a question of remedy."
"474. Plainly, it is neither practicable nor reasonable to make use of diminution in value (market rental) figures since there is too little primary data and in the circumstances I propose to adopt the tried and trusted method of assessing figures for general damages as would be done in personal injury claims where there is a claim for loss of amenity whilst not losing sight of the fact that these are claims concerning land and where the damages awarded tend to be modest. It has been said that in low value claims covered by a Group Litigation Order, Claimants cannot expect the same attention to detail as they would in high value claims. This is the correct and proportionate approach and the Claimants must take the rough with the smooth across the whole Register and I propose to make an annual award in respect of odour."
Issue 6: Whether the Court lacks jurisdiction to try some or all of the claims (as pleaded) on behalf of the Bodo Community and the claims by the individuals under the OPA and/or in nuisance and/or in negligence and/or Rylands v Fletcher by reason of Section 30 of the CJJA 1982?
"(1) The jurisdiction of any court in England and Wales or Northern Ireland to entertain proceedings for trespass to, or any other tort affecting, immovable property shall extend to cases in which the property in question is situated outside that part of the United Kingdom unless the proceedings are principally concerned with a question of the title to, or the right to possession of, that property.
(2) Subsection (1) has effect subject to the 1968 Convention and the Lugano Convention and to the provisions set out in Schedule 4."
"Before proceedings can be regarded as "principally concerned" with title or possession two requirements should be satisfied: there must be a genuine and bona fide dispute between the parties regarding at least one of these questions, and the outcome of the case must depend upon the way in which the point on title or possession is decided."
The editors refer to Re Polly Peck International plc (No 2) [1998] 3 All ER 812 where administrators of Polly Peck sought to resist claims from former subsidiaries to be the owners of and entitled to possession of land and buildings in Northern Cyprus. Mummery LJ said at Page 828g:
"…the contention that these proceedings are not 'principally concerned with a question of title to, or the right to possession of' property situated outside the United Kingdom is seriously arguable….As the Judge pointed out the word 'principally' is used in its ordinary sense 'for the most part' or 'chiefly'. Whether something is principally concerned with a specified topic is one of fact and degree."
Mummery LJ also approved the first instance judge's observations that issues arose such as piercing the corporate veil, a claim as to constructive trusts and rights to proceeds of sale, and his finding that these were:
"…not minor or incidental questions. Given that the relevant proceedings, if allowed to be brought, will concern such questions quite as much as the question of the applicants' right to possession of the properties concerned, in my judgment those proceedings would be concerned, but not principally concerned, with such right to possession. I consider that the purpose of s. 30(1) of the 1992 Act is to preserve the Mocambique rule only in cases where the real issue in the proceedings is the question of title to, or the right to possession of, foreign land, and all other questions are merely incidental thereto. Such is not this case."
(a) An individual claimant can readily show that he and his family for four generations before him have occupied and farmed land which he alleges was swamped by 50 cubic metres of oil from one of the spillages. Shell does not admit his connection to the land (simply putting him to proof) but runs a positive case that the oil spillage never reached this land. It might be said that the claim is not "principally" concerned with the title or possession to land.
(b) An individual claimant alleges that he was a tenant of land right by the location of the pipe and which was swamped by 50 cubic metres of oil from one of the spillages and claims loss of use of the land. Shell admits that the land was so swamped by oil spilling from its pipe (and would in principle attract compensation) but runs a positive case that he was not ever a tenant. It might be said that his proceedings are "principally" concerned with the title or possession to land.
(c) A chief, king or headman seeks in representative proceedings compensation but the only issue, on analysis is whether he is representative because he seeks to claim that he represents areas which are said to be outside his bailiwick. That might well be a claim which is "principally" concerned with the title or possession to land.
(d) Representative proceedings are challenged on numerous grounds, for instance that many of those represented have no claim under the OPA as not having sufficient interests in land, that they have suffered no "damage" which is recoverable under the Act, that many of those represented suffered no more than inconvenience etc and that the oil spillage did not reach where they lived. It might be said that the claim is not "principally" concerned with the title or possession to land, largely because there are a myriad of seriously contested issues.
I am using the word "might" to avoid being prescriptive because the Court will need to look overall at claimants' claims and see if the issues are "principally" concerned with the title to or possession of land.
Issue 7: Whether the damage - both pecuniary and non-pecuniary - alleged to have been suffered by the claimants, in both the individual and community claim, are recoverable in claims (whether brought individually or by representative action) for damages in public nuisance?
"Nuisance is an act or omission which is an interference with, disturbance of, or annoyance to a person in the exercise or enjoyment of
a) a right belonging to him as a member of the public, when it is a public nuisance".
"The tort of nuisance is one of the many common law actions still available in this country. The common law of England which applies in this country recognises that nuisance may either be a public nuisance or a private nuisance. Public nuisance is one which inflicts damage, injury or inconvenience to the generality of the population or upon all of a class who come within its ambit, a private individual has a right of action for public nuisance if he can establish that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public and that the particular damage is direct and substantial – See Ejowhomu v Edok-Eter Mandilas Ltd (1986) 5 NWLR (Pt.39) 1…."
"The general rule is that a private individual can only take proceedings in his own name in respect of an injury sustained from a public nuisance, where he has suffered some particular direct and substantial damage over and above those sustained by the public at large: or when the interference with the public right involves a violation of some private right of his own, or a threat of damage to his property…in any case the nuisance must be a cause of the injury – see Dymond v Pearce (1972) 1 All ER 1142. In all other cases, known as relator actions, proceedings must be brought with the sanction and in the name of the Attorney-General…" (emphasis added)
"Turning to the claim for general damages, these lie under three headings, namely trespass and deprivation of the right of passing and re-passing and navigation. Consent of the riparian owners...has been proved, so there was no trespass. The re-passing and navigation are one and the same thing so cannot be the subject of two separate claims. The waterway was clearly a public waterway so its obstruction is a public nuisance. Without proof of damage over and above that suffered by the general public, the plaintiffs cannot succeed in any claim for damages. This is an attempt by a section of the general public (and quite a large section too, if the figures in the Report Exhibit 8 are true) to sue in respect of losses suffered by them generally and in my view it cannot succeed. These losses, if in fact they were suffered were suffered individually and therefore must come under the heading of Special Damages, where each individual must plead and prove his or her special individual loss. There has been no attempt to do so, so the whole claim must in my view fail."
Justice Oguntade rightly accepted that this case was rightly decided.
"It is a public nuisance to obstruct or hinder the free passage of the public along the highway.
A private individual has a right of action in respect of a public nuisance if he can prove that he has sustained particular damage other than and beyond the general inconvenience and injury suffered by the public. It is not necessary to prove that every member of the public has been affected. It is sufficient if he can show that the injury suffered is a direct result of the nuisance complained of. …
It is necessary for the plaintiff to prove financial loss resulting from the obstruction to the highway. It has been held in Winterbottom v Lord Derby (1867) L.R.2 Ex.316 that it is not enough for plaintiff to prove that he has been put to expense in exercising right of abating the obstruction… (Page 23)
However, particular damage is not limited to special damage. It includes actual pecuniary loss and general damage such as inconvenience and delay…
In public nuisance the issue of the measure of damages is the same as that for torts generally. The damages are whatever loss results to the injured party as a natural consequence of the nuisance – see Grosvenor Hotel Co v. Hamilton (1984) QB 836, 840….
The learned trial judge, erroneously, was of the view that the law does not provide for general damages in liability for actions in nuisance." (Page 25)
In the same case, Obaseki JSC said:
"I agree that the particular damage to be considered is not limited to special damage in the sense of actual pecuniary loss. It may consist of general damage, eg, inconvenience and delay provided that it is substantial and appreciably greater than any suffered by the general public." (Page 33)
"Now on the submission that in as much as the plaintiff/respondent is not the only one who suffered the type of particular inconvenience suffered by him because all other tenants and landlords in Emerka Avenue suffered it too, it is not peculiar to the respondent and only the Attorney-General can sue in this situation. I am not impressed in the least by this submission. Mr Akomas, learned counsel for the respondent, spoke right that it is not the law that the particular damage suffered by the plaintiff above that of the general public must be peculiar to him alone. In his brief at page 6 he says:
'The law recognises that a class of persons (e.g. residents in a particular area) could suffer an inconvenience above that of the general public and therefore gives every member the right to sue if damnified.'…
….I agree with Mr Akomas that landlords and tenants of Emeka Avenue have an interest over and above that of the general public in the appellant preventing the use of the road by erecting a batcher on it. The plaintiff being one of the class of persons so affected is entitled to sue. The respondent had to take a circuitous road for social and business purposes"
Onu CJA in the same case said:
"...the question which arose in hand for decision was as to whether the owner of a property (appellant herein) is entitled to build on his land to obstruct an adjoining way; what type of action can the plaintiff/responded maintain and what type of damages, be it special or general, could have been rightly awarded. The answers thereto would seem to me to be on all fours with the principles annunciates in the Supreme Court decision in Ipadeola v Oshowole where in similar circumstances ESO J.S.C. observed...thus:
"In Nicholls v Ely Beet Sugar Factory Ltd (1936) Ch 349 Lord Wright would appear to have put it graphically enough when he said:
"Disturbance of easements and the like, as completely existing rights of use and enjoyment, is wrong in the nature of a trespass."
Indeed it is remediable, and as the learned law Lord further said
"by action without any obligation or proof of specific damage."
The same case has established that the owner of an easement, profit a prendre or other incorporeal rights can sue for the disturbance of his right. The learned trial judge is right when said that such a householder can bring an action in nuisance or as a violation of his right of way."
Issue 8: Whether interest is recoverable on awards of just compensation and/or damages at common law for past losses?
Decision