“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.”
"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…”
“…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."
“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 on1 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.”
“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.”
“…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.”
“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”
“22In 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… 56PartX 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. 57My 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." 58Ican 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.”
“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 theHuman Rights Act 1998 , Mr Marcic seeks to sidestep the statutory enforcement code. He asserts claims not derived fromsection 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 theWater 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 whethersection 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: 35. "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." 36. 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.”
"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 theTrade Marks Act 1965 is preserved by the proviso italicised [as above]… …It is well settled lawwhere 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 whatSection 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.”
“(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…”
“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 andthe holder, it shall be fixed by a court in accordance with Part IV of this Act.”
“(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.”
“…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 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."
“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.”
“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.”
“to defend from trouble, harm, attack, etc”
“shield from danger, injury, change, capture, loss; to defend; to strengthen…”
“1…to defend or guard from injury or danger; to shield; to keep safe, take care of…”
“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.”
“whether the Defendant has established the defence of malicious act of third party undersection 11(5)(c) of the Oil Pipelines Act 1990 ”
“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.”
“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”
"...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 on5/1/2001 ."
"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"
“(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."
"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."
“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…”
“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.”
“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”
“(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.”
“Loss or injury to person or property”
“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 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."
"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"
“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.”
“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 aclaimant 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.”
“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.”
“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.”
“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.”
“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.”
“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”
"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, 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.”
“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 conducthas been calculated by him to make a profit for himself which may wellexceed the compensation payable to the plaintiff. I have quoted the dictumof Erle C.J. in Bell v. The Midland Railway Company. Maule J. inWilliams v. Curry, at page 848, suggests the same thing; and so doesMartin 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 accountin damages for libel; one man should not be allowed to sell another man'sreputation for profit. Where a Defendant with a cynical disregard for aPlaintiff'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 lawto 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 theDefendant is seeking to gain at the expense of the Plaintiff some object,—perhaps some property which he covets,—which either he could not obtainat 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 toteach a wrongdoer that tort does not pay. To these two categories which are established as part of the commonlaw there must of course be added any category in which exemplary damagesare expressly authorised by statute. I wish now to express three considerations which I think should alwaysbe borne in mind when awards of exemplary damages are being considered.First, the Plaintiff cannot recover exemplary damages unless he is the victimof the punishable behaviour. The anomaly inherent in exemplary damageswould become an absurdity if a Plaintiff totally unaffected by some oppres-sive conduct which the jury wished to punish obtained a windfall inconsequence. Secondly, the power to award exemplary damages constitutes a weaponthat, while it can be used in defence of liberty, as in the Wilkes cases, canalso be used against liberty. Some of the awards that juries have made inthe past seem to me to amount to a greater punishment than would be likelyto be incurred if the conduct were criminal; and moreover a punishmentimposed without the safeguard which the criminal law gives to an offender. I should not allow the respect which is traditionally paid to an assessment ofdamages by a jury to prevent me from seeing that the weapon is usedwith restraint. It may even be that the House may find it necessary tofollow the precedent it set for itself in Benham v. Gambling, and place somearbitrary 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.”
“Shock and Fear”, “Annoyance, inconvenience, discomfort and illness”, “Injurious affection” and “Ecological damage and injurious affection”
“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."” "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." "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." "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.”
“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.”
“(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 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.”
“…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.”
“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…”
“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”
“...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.”
“Disturbance of easements and the like, as completely existing rights of use and enjoyment, is wrong in the nature of a trespass.” “by action without any obligation or proof of specific damage.”