Chief Thomas Ekpemupolo & Ors. V. Godwin Edremoda Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI, J.S.C

The two suits culminating in this appeal were commenced at the Warri Judicial Division of the High Court of the then Mid-West State of Nigeria. The first Suit No. W/132/70 was filed on the 2nd of December, 1970. The Plaintiffs are the Respondents before this Court. The sole Defendant, Shell B.P. Petroleum Development Company of Nigeria is the 6th Respondent herein. By an application dated 17/12170 and an order of court pursuant thereto dated 12/1/71, the Appellants were joined as Co Defendants.

The 2nd Suit No.W/62/71 was filed on the 6/5/71. The Plaintiffs therein are the Appellants and the Defendants therein, the 1st-5th Respondents herein. The two suits were by an order of Court on the 11/6/73 consolidated and tried. By its judgment on the 4/12/1980, the trial Court allowed the claim in Suit No.W/132/70 and dismissed the claim in Suit No.W/62/71. In allowing the claim the learned trial judge E.E. Akpata J (as he then was) stated at page 149 of the record:

“In sum, therefore in respect of Suit No. W/132/70, the Plaintiffs are hereby granted a declaration of title to all the piece of land verged RED in survey Plan No. M/GA. 71/72, Exhibit ‘A’ in these proceedings. They are also entitled to the total sum of N9,500.00 which the company has deposited in the Government Treasury in Benin City. The company is to pay this amount or see to it that the amount is paid by the Treasury to the Plaintiffs. The company, Shell B.P. Development Company of Nigeria Limited is hereby restrained from paying any money in respect of all the land verged RED in Exhibit ‘A’ to any person or persons other than the Plaintiff.”

The Defendants/Appellants were aggrieved by the said judgment and proceeded on appeal to the Court below. By its judgment dated the 7th January 1994, the Court below dismissed the appeal. And still dissatisfied with the said judgment, the Defendants/Appellants have come on further appeal to this Court. The original Notice of Appeal dated and filed on the 23/2/1994 raised two grounds of appeal. The Amended Notice of Appeal was dated the 28/6/2006 and same was filed on the 29/6/2006. The Notice raised three grounds of appeal. The grounds without their particulars were:

GROUND 1

The Court of Appeal Benin erred in law when it dismissed the Appellant’s appeal on the ground that the appeal has not been argued according to the rules of court.

GROUND 2

The learned Justices of the Court of Appeal erred in law when they affirmed the judgment of the High Court having regard to the fact that they did not evaluate exhibit “A” (i.e. Plan No. M/GA71/72 to which the declaration was tied thereby occasioning miscarriage of justice.

GROUND 3

The Court of Appeal erred in law when it affirmed the judgment of the trial Court which entered judgment in favour of the Plaintiffs/Respondents and granted reliefs not contained in their amended Statement of Claim.

Briefs were duly filed and exchanged. The Appellant’s Amended Brief was prepared by Larry S and same was filed on the 13/10/07. He also prepared the Appellant’s Reply Brief which was filed on the 5/11/08. The 1st-5th. Respondent’s Brief was prepared by John Alele and it was filed on the 8/7/08. In the Appellant’s Brief learned counsel, Larry S. formulated three issues for determination.

In the 1st-5th Respondent’s Brief, learned counsel John Alele seems to have adopted the issues formulated by the Appellants without expressly saying so. In sum,therefore the parties are in agreement as to the issues for determination in this appeal. The issues are:

“1. Whether or not dismissing an appeal on account of an inelegantly or defectively written brief amounts to the court abdicating its duty of doing substantial justice.

2. Whether the Court of Appeal, Benin Division was right in affirming the declaratory reliefs granted in favour of the 1st-5th Respondents (i.e. the Plaintiffs in Suit No.W/132170) in spite of the fact that Exhibit “A” (i.e. Plan No. M/GA/71172) to which the High Court tied the relief was not placed before it for evaluation.
3. Whether or not the Plaintiffs/Respondents pleaded any relief in or by their Amended Statement of Claim dated 2nd February 1973 to warrant the Court of Appeal affirming the reliefs granted by the trial court.

In the Appellant’s Amended Brief and the Appellant’s Reply Brief, Barrister Larry made the following submissions. On the first issue, learned counsel conceded that the Appellant’s Brief before the court below was bad, defective, faulty and inelegant. It was his submission however that the inelegance or defect of a brief notwithstanding the court still had a duty to do substantial justice by considering same in its determination of the appeal. He relied on a number of authorities amongst them are OBIORA v OSELE (1989) 1 NWLR (Part 97) 279 GBAFE v GBAFE (1996) 6 NWLR (Part 455) 417, AKPAN v THE STATE (1992) 6 NWLR (part 248) 439; ORJI v ZARlA INDUSTRIES NWLR (1992) 1 NWLR (Part 216) 124, WEIDE & CO NIG. LTD v WEIDE CO. HAMBURG (1992) 6 NWLR (Part 249) 627; ECHO ENTERPRISES LTD v STANDARD BANK OF NIGERIA LTD (1989) 4 NWLR (part 116) 509 and IN RE OLAFISOYE (2004) ALL FWLR (Part 198) 1106. Counsel submitted that it was therefore wrong for the Court of Appeal to dismiss the appeal in the manner it did.

With respect to the second issue of whether it was right for the Court of Appeal to affirm the judgment of the trial court when it did not see Exhibit “A” to which the declaration sought and granted was tied, learned counsel referred copiously to the reliefs claimed, various s of the judgment of the trial court, the crucial nature of Exhibit “A” and the undisputed fact that the said Exhibit “A” did not form part of the record before the Court and submitted that it was wrong in the circumstance for the Court of Appeal to assert that the trial court properly evaluated all the evidence presented to it before its decision. Learned counsel referred to the fact identified by the trial court at page 143-144 of the record that ‘in the previous cases the Plaintiffs did not specifically assert that the place called Egwa was founded by their adventurous ancestors’, the fact that the plan used in Exhibit “C” was not tendered along with it and the copious references made to Exhibit “A” by the trial court and submitted that the Court of Appeal had a duty to examine Exhibit’ “A” in its assessment of the printed evidence. For the submission that consideration of Exhibit “A” along with other evidence on record was sine qua non of a valid judgment of the court below, counsel relied on the following: MOBIL PRODUCING NIGERIA UNLIMITED v MONOKPO (2004) ALL FWLR (Part 1975) 575; EDJEKPO v OSIA (2007) ALL FWLR (Part 361) 1617.

In the 3rd issue for determination, learned counsel submitted that a relief not claimed in the Statement of Claim is deemed abandoned and that where no relief is claimed in the Statement of Claim, there is no issue joined. He relied on ATANIOKU v MUSTAFA (1977) 11-12 SC 9; STOWE V STOWE (2000) FWLR (Part 24) 1425; ENIGBOKAN v AMERICAN INTERNATIONAL INSURANCE CO. NIG. LTD. (1994) 6 NWLR (part 348) 15-16; LAHAN v LAJOYETAN (1972) 6 SC 190 at 192; A.C.B. v EAGLE SUPER PARK (NIG) LTD (1995) 2 NWLR (part 379) 590 at 600; FATUNMI v ONILUDE (2004) ALL FWLR (P.219) 1053; PRACTICE AND PROCEDURE OF SUPREME COURT, COURT OF APPEAL AND HIGH COURT. By T.A. Aguda 2nd Edition.

In the Appellant’s Reply Brief, learned counsel was at great pains to further demonstrate that the two previous cases of SILLO v ADURUMOKUMOR and ULUBA v SILLO (1973) 8 N.S.C.C. 47 which is Exhibit “C” on which the trial court relied had no relationship whatsoever with the Egwa land in dispute in this case and that no reference whatsoever was indeed made in the previous cases to the land in dispute in this case. In conclusion, learned counsel for the Appellants urged that the decisions of the two courts below be set aside, and in their place-dismiss Suit No. W/132/70 and enter judgment for the Appellants in Suit No. W/62/71 or in the alternative order a retrial of both suits.

In the 1st-5th Respondent’s Brief, John Alele proffered the following arguments. With respect to the first issue, learned counsel referred to the order of this Court on the 26th day of March 2007 and the resultant hearing of this appeal on the merits and submitted that the complaint about the non-hearing of the appeal no longer remains an issue. Learned counsel made some references to parts of the judgment of the lower court and submitted that the appeal was in fact considered and decided on the merits.

On the second issue, learned counsel argued firstly that in view of the trial court’s preference of the traditional evidence of the 1st-5th Respondents to that of the Appellants and the host of Exhibits put together, the lower court rightly affirmed the decision of the trial court. With respect to the identity of the land, counsel referred to Exhibit “B” by which the Appellants claimed compensation from the 6th Respondent over the land in dispute and submitted that there was therefore no dispute as to the identity of the land. He referred further to Exhibits L8 – L15 by which the 6th Respondent negotiated with and paid compensation in respect of Egwa 2 to the 1st to 5th Respondents and the contiguity of Egwa 1 and Egwa 2, their separation being only a creek and submitted that the identity of the land was not in issue and that Exhibit ‘A’ was therefore not necessary. Apart from Exhibit “A”, counsel argued, Chief Sillo’s evidence before Obaseki J (as he then was) in Exhibit “C” had paved the way for dismantling the Appellant’s claim to the ownership of Egwa.

As respects the third issue, learned counsel agreed that Order 13 Rule 7 of the 1976 Bendel State High Court Rules applicable in Delta State insists on due compliance. It was his contention however that since clients do not prepare court processes and having regard to the principle of not punishing a client for the mistake of his counsel the court should lean towards the doctrine of incorporation as was applied in OKOMU OIL PALM CO. LTD v ISERHIENHEN (2001) 6 NWLR (part 710) 660 at 681. It was counsel’s submission that since in the Statement of Claim the Respondents claim as per writ of summons, the Statement of Claim is complete as it has incorporated the writ of summons. In support of this contention, learned counsel relied on UDECHUKWU v ONWUKA (1956) SC NLR 189; OWENA BANK (NIG) LTD v N.S.C.C. LTD (1993 4 N.W.L.R. (Part 290) 698 at 714-715 and KESHINRO v BAKARE (1967) 1 All N.L.R. 280. Learned counsel urged in conclusion that in view of the traditional evidence and other oral evidence accepted by the trial court who heard and watched the demeanour of witnesses who testified together with the operation of Section 46 of the Evidence Act, the concurrent judgments of the two courts below be affirmed.

I have taken a careful look at the record of proceedings and the submissions of counsel for the parties in their respective briefs. With respect to the 1st issue, it is clear from the judgment of the court below that the appeal was dismissed for two reasons. The first was that the appeal was argued in breach of the Rules of Court and principles governing the writing of briefs. The court Per Ogebe, JCA (as he then was) at page 344 of the record highlighted some flaws in the Appellant’s brief and the 1st – 5th Respondent’s brief and concluded in the following terms:

“From all I have said above, based on the principles governing the writing of briefs, it is clear that this appeal has not been argued according to the rules of court. Consequently the appeal must be dismissed and it is hereby dismissed.”

Mr. Larry for the Appellants referred to the above conclusion of the court below and submitted that dismissing the appeal as it did on the ground that the Appellant’s brief was not written in strict compliance with rules and principles governing brief writing amounted to the Court’s abdication of its duty to do substantial justice. Mr. John Alele for the 1st-5th Respondents appeared to have conceded this argument of the Appellants. There is substance in the complaints of the Appellants. Admittedly, there were substantial flaws in the Appellant’s brief before the court below and the Court highlighted them. But was the Court right to dismiss the appeal because of those flaws It is my firm view, with respect, that the Court of Appeal erred. There are numerous authorities on the principle that the inelegance or flaws in a party’s brief of argument notwithstanding, an appellate court has a duty to examine the arguments contained therein and decide the case on its merits. OBIORA v OSELE (1989) 1 NWLR (Part 97) 279 cited in the Appellant’s Amended Brief of Argument is very apposite on the point. The dismissal of the appeal on the ground that it was not argued in the Appellant’s Brief in accordance with the rules and principles governing the writing of briefs as stated in the judgment is tantamount to the determination of the appeal without giving the Appellant a fair hearing. Therefore if this were the only ground for the dismissal of the appeal at the court below, this appeal would have been allowed on that ground alone.

But that was not so. After dismissing the appeal on the ground of the inelegantly drafted brief, the Court below also proceeded on to dismiss the appeal on the merits. In this regard the court below in its concluding paragraph of the judgment had this to say:

“I have carefully read the judgment of the trial court and I am satisfied that it properly appraised all the evidence placed before it meticulously before arriving at its decision. I see no cause whatsoever to interfere with the judgment. Accordingly, even on the merit, the appeal lacks substance and it is hereby dismissed. I affirm the decision of the trial court…”

The above shows that in addition to dismissing the appeal for the Appellant’s non compliance with the rules and principles of brief writing, it also dismissed it on the merits. I do not think we are in a position to impugn that assertion of having also dismissed the appeal on the merits. It is an assertion of what the court said it did. Whether or not the assertion is right in the light of the materials before the Court is completely another thing. The Court of Appeal should be taken to mean what it said. Thus, while there is substance in the Appellant’s complaint about the dismissal of the appeal on the grounds of the inelegant Appellant’s Brief, there is no substance in their complaint about the Court’s assertion of having also dismissed the appeal on the merits.

For conveniences, I take the 3rd issue before the 2nd. The question posed there is whether the Plaintiffs/Respondents pleaded any relief in their Statement of Claim. The writ of summons issued on the 2nd December 1970 contained four reliefs. In paragraph 19 of the Statement of Claim dated 2/2/1973 and filed on the 3/2/1993 the Respondents claimed as follows:

“19 whereof the Plaintiffs claim as per their writ of summons”

I have considered the arguments very ably agitated by counsel for the parties with the authorities cited. On this issue OKOMU OIL PALM CO. LTD v ISERHIENHEN (2001) 6 NWLR (part 710) 660 at 681 is quite apposite. There this Court, Per Uwaifo J.S.C. while restating the principle had this to say:

“…I think reference in a statement of claim to the writ for the reliefs claimed in the writ of summons makes the statement of claim complete as it incorporates the writ. It is accepted that the synonym of the word ‘incorporate’ includes roll into one, merge, link with, join together, fuse, assimilate: see Barlett’s Rogef’s Thesaurus 1st Edition paragraph 753.15 at page 663 and paragraph 757.9 at page 668. I am satisfied that Ubaezonu, JCA was right in his observation in OWENA BANK case (supra) at pp. 714-715 that “where the Statement of claim states that the Plaintiff claims ‘as per writ of summons’, the claim in the writ of summons is incorporated in the statement of claim and becomes part of it. Once there is such incorporation, the statement of claim is taken to contain the relief stated in the writ which statement of claim would otherwise have been defective and contrary to the requirements of Ord. 13 Rule 7….”

I adopt the above opinion in its entirety. The invitation to dismiss the claim on the ground that in the Statement of claim the Plaintiffs/Respondent merely claimed ‘as per their writ of summons’ is an invitation to give credence to technical justice. The Courts have been advised to avoid technicalities in the administration of justice. See BELLO v A.G. OYO STATE (1986) 5 NWLR (Part 45) 828 at 885-886; NNEJI v CHUKWU (1988) 3 NWLR (Part 81) 186 at 188.

The skill of formulating pleadings is a highly technical one that can only be properly handled by lawyers with the appropriate skills. If we accede to the request of learned counsel for the appellants to dismiss the claim, then the Plaintiffs/Respondents would be punished for the mistakes or inadvertence of their counsel and inflict injustice. This we should avoid. See IBODO v ENEROFIA (1980) 5 SC 42; NNEJI v CHUKWU (supra). ADEPOJU v ADEPOJU (1968) 2 ALL NLR 141. For the foregoing considerations, this issue is resolved against the Appellants.

I now come to the 2nd issue. The uncontroverted fact is that Exhibit “A” was not before the court below as it is not before us. The crucial question is whether the Court below was right to dismiss the appeal without the benefit of also examining Exhibit “A”. In the first place how crucial was this Exhibit In the 1st relief the Respondents claimed:

“A declaration of title to all that piece or parcel of land known as “Egwa-tie” which piece or parcel of land is lying and situate within the jurisdiction of this Honourable Court the boundaries of which piece or parcel of land will be shown in plan to be filed in this Honourable Court.”

The settled principle of law is that a declaration of title to a piece or parcel of land can only be granted if the definite precise and accurate boundaries of it are established. And the onus of proof lies on the Plaintiff who seeks a declaration of title to land and for an injunction to establish with certainty and precision, the area of land to which the claim relates. See OKEDARE v ADEBARA (1994) 6 NWLR (Part 349) 157; AGBONIFO v AIWERIOBA (1988) 1 NWLR (Part 70) 325; ONWUKA v EDIALA (1989) 1 NWLR (Part 96) 182; KWADZO v ADJEI (1944) WACA 274; ARABA v ASANLU (1980) 5-7 SC 78. And there is no gainsaying the fact that it was for the purpose of establishing the precise boundaries of the Egwa-tie claimed that Exhibit “A” was filed. And in granting the relief claimed the trial court stated at page 149 of the record thus:

“In sum therefore, in respect of Suit No. W/132/70, the Plaintiffs are hereby granted a declaration of title to all the piece of land verged red in survey plan No.M/GA.71/72. Exhibit “A” in these proceedings.”

Right from the trial Court and up to the Court of Appeal, the Defendants/Appellants were at pains to demonstrate that the Plaintiffs/Respondents failed to establish the precise boundaries of the land in respect of which the declaration was sought and granted and urged that the claim ought to have been or should be dismissed.

What are the circumstances surrounding the Exhibit “A” On the 22/3/1979 learned counsel for the Plaintiffs/Respondents John Alele informed the court at the very opening of their case that the surveyor who prepared it was late. Counsel for the three sets of defendants i.e. Siakpere, Dr. Odje and Dr. Mowoe each expressed no objection to its admission in evidence and so it was admitted and marked Exhibit “A”. The DW1 was one Josiphus Theophilus John, a licensed surveyor who prepared the Appellant’s Plan Exhibit ‘F’. In the course of his evidence, he tried to discredit Exhibit “A” when at pages 89-90 of the record of proceedings he said:

“I see Exhibit A. Exhibit “A” and “F” are incomparable because the scales are different. Scale A is 1250 to an inch. The scale of Exhibit “F” is 2083.6ft to an inch. I cannot follow Exhibit A. The pipe of Exhibit “F” is running North-North-West. It forms the western boundary of the land claimed by the defendant. In Exhibit A it runs North-West and lies in the middle of the land claimed by the Plaintiffs. The positions of the wells and the shapes of the rivers differ greatly…. Egwu-tie creek in Exhibit A is not of the same shape with Egwa creek in Exhibit “F”.

It is clear from the above that the parties plan description of the land in dispute is greatly at variance. Part of the address of counsel for the Defendants/Appellants O. V. Siakpere before the trial Court is at pages 118-119 of the record. At page 118 lines 22-24 he pointed out what he considered to be flaws in Exhibit “A” when he submitted:

“Their plan Exhibit “A” is barren. Nothing to show they owned it. There is not a single juju shrine planted. They have only Enyeogbe camp. This is far from Egwa and it is not in dispute.”

There are other attacks on the Plaintiffs/Respondent’s proof of the boundaries at page 119 lines 4-11 of the record.

The address of learned counsel for the Plaintiffs/Respondents John Alele is at pages 123-126 of the record. At page 125 lines 20-22, he seemed to have conceded some deficiencies in their plan Exhibit “A” when he said:

“The Plaintiff’s plan shows no features because the first defendant had acquired the land. Hence the failure to show features in Exhibit “A” cannot be held against us…”

Despite the foregoing, the trial court in its judgment tried to trivialise the alleged failure of the Plaintiffs/Respondents to establish the precise boundaries of the land claimed holding, as he did, that whatever description of the land by them accorded with their earlier description of same in previous cases. See page 144 of the record.

The Appellants herein were the Appellants at the Court below. Their brief of argument is at pages 245-270. Therein, their counsel O.V. Siakpere submitted again and again, that in view of the facts disclosed in Exhibit “A” the Respondents claim ought to have been dismissed. It was further contended that Exhibit “A” apart from failing to help the case of the Respondents, established the Appellant’s possession over the Egwa land in dispute. At page 257, learned counsel for the Appellants submitted as follows:

“In Exhibits “A” (Respondent’s Plan), the situations and positions of Okenrenghigho and Omadinor villages are clearly shown. On the opposite side at the Escravos Rivers are shown two Egwa camps. There are no suit numbers to show that there had been litigations over them and that such litigations ended in favour of the Respondents.”

Again at page 260 learned counsel made the following submission:-

“The Plaintiffs/Respondents have not established at all any sufficient numerous, positive and/or convincing acts of possession and enjoyment over Egwa land which is in dispute.

(a) In Exhibit “A” (Respondent’s Survey Plan), there is nothing to show the presence of the Respondents, or that they have ever been there.

(b) There is abundant evidence that the Appellant has his permanent home at Egwa. This is accepted by the Respondents and his two camps are clearly shown on Exhibit “A”.

There were still other references to Exhibit “A” in the Appellant’s brief. And from the totality of the submissions therein, Exhibit “A” was crucial and the Court below was called upon and indeed had a duty to examine Exhibit “A” to see how and the extent to which it affected the respective cases of the parties. It cannot just be wished away.

Surprisingly, the said Exhibit “A” disappeared and so was not placed before the Court below. The Court never bothered to see this Exhibit A which was capable of turning the scale of justice one way or the other. And it nevertheless went ahead to dismiss the appeal and affirm the decision of the trial court without seeing Exhibit “A”. The question is was the Court of Appeal right when it stated that it had carefully read the judgment of the trial court and was satisfied that it properly appraised all the evidence placed before it meticulously before arriving at its decision It is my firm view that the finding or assertion was rather presumptuous and I have no doubt that it was wrong. Given the crucial nature of Exhibit “A” and the heavy reliance placed on it by the Appellants, the court below could not have been in any position to know whether or not the trial court properly and meticulously evaluated the totality of the evidence before it in arriving at its decision.

In MOBIL PRODUCING (NIG) UNLIMITED v MONOKPO (2003) 18 NWLR (part 852) 346 at 437-438 this Court was confronted with circumstances similar to those in this case, and this Court Per Tobi, JSC reacted as follows:

An appellate Court must and I repeat must come to the conclusion such as above if that court has seen the exhibits. What an appellate court cannot see is the evidence given by the witnesses and so he goes by the record to see whether the evaluation and conclusion reached by the trial judge are vindicated on the record. Even here, if the conclusions are not borne out from the record, an appellate court can reject them on grounds of perversity.

There is no procedural law known to me which allows an appellate court to accept the evaluation of exhibits by the trial court which are not before that court. A court trial or appellate must see the exhibits before taking any decision on them. A court trial or appellate must see the exhibits before probing into their veracity or authenticity. A court trial or appellate cannot and must come to the conclusion one way or the other, on exhibits which it did not see. Where a court does that there is a clear miscarriage of justice and the judgment must be declared a nullity…”

EDJEKPO v OSIA (2007) 8 NWLR (part 1037) 635 is another strong authority that an appellate court has a duty to examine the totality of the evidence presented at the court below in order to ascertain whether the decision is supported by the evidence placed before it.

As I stated earlier, without seeing Exhibit “A” which vitality or materiality is not contested, the Court below could not have been in any position to assert, as it did, that the trial court properly and meticulously evaluated all the evidence before it before it arrived at its decision. The assertion or finding was merely presumptuous and cannot stand.

It is a judgment without a consideration of the crucial issue two wherein the question of Exhibit “A” was raised. There was therefore a clear miscarriage of justice which renders the judgment of the court below a nullity. The result is that this issue is resolved in favour of the Appellants.

The 2nd issue having been resolved in favour of the Appellants, this appeal succeeds on this ground alone. The appeal is accordingly allowed. The judgment of the court below be and is hereby set aside being a nullity. The appeal be and is hereby remitted back to the Benin Division of the Court of Appeal for rehearing by another panel of that court.

I assess the costs of this appeal at N50, 000.00 favour of the Appellants.

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SC.35/2000

Agro Allied Development Ent. Ltd V. Mv Northern Reefer & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the ruling of the lower court delivered on the 7th day of May, 2001 in appeal NO.CA/L/102/2000 in which the court granted the application of the present respondents who were the appellants/applicants before that court, in the following terms:-

“(1) leave is hereby granted to the applicants to amend their notice of appeal dated 29th July, 1999;

(2) Time to apply for leave to appeal on grounds of mixed law and fact is extended till today;

(3) Leave is hereby granted to appeal on grounds of mixed law and fact;

(4) The amended notice of appeal shall be filed within 14 days from today;

(5) The appeal shall be heard on the bundle of documents marked “record Of appeal” filed in this court’s registry on 7th March, 2000 and such other documents the respondent may be advised to file within 21 days from today;

(6) the said record of appeal filed on 7th March, 2000 are hereby deemed to be properly filed”,

The appellant, who was the respondent at the lower court is dissatisfied with the above ruling and has consequently appealed to this court.

The facts of the case include the following:-

The plaintiff, who is the present appellant and respondent in the lower court instituted an action against the present respondents at the trial court claiming the sum of $2,500,000.00 as special and general damages arising from the breach of contract of carriage of goods and for negligence relating to a cargo of frozen fish evidenced by seven bills of lading issued by or on behalf of the present respondents, then defendants. Though the claim is stated to be against the defendants/respondents jointly and severally, as against the 1st defendant/respondent i.e. MV Northern Reefer, it is in rem and in personam as against the 2nd and 3rd defendants/respondents.

Following the service of the processes on the defendants, the defendants/respondents filed an application in the trial court praying for the following reliefs:-

(a) An order dismissing or in the alternative striking out this action or alternatively.

(b) An order discharging the order of arrest of the 1st defendant.

The application was dismissed by the trial court resulting in an appeal to the lower court by the present respondents.

In the course of the proceedings in the lower court in respect of the said appeal the present respondents, who are the appellants before that court, brought an application praying the court for the following orders:-

i. An order granting leave to the appellants to amend their notice of appeal dated 29th July, 1999.

ii. An order for extension of time to apply for leave to appeal on grounds of mixed law and fact.

iii. An order for leave to appeal on grounds of mixed law and fact.

iv. An order for extension of time within which to appeal.

v. An order directing a departure from the rules of this honourable court to enable the appellants compile the records of appeal may be heard.

vi. An order deeming as properly filed and served the said records of appeal, filed on 7th March, 2000.

vii. An order of accelerated hearing of the appeal herein and abridging of time within which parties may file their briefs of argument in this appeal”.

The present appellant opposed the application on the ground that the application is incompetent as the applicant is said to be under liquidation necessitating the obtaining of the leave of the court under the provisions of section 417 of the Companies and Allied Matters Act (C.A.M.A). The ruling of the lower court, the terms of which had earlier been reproduced in this judgment is the reaction of the lower court to the application of the respondents.

By the appellant’s brief of argument filed on the 12th day of November, 2002, the learned senior counsel for the appellant Jimi Oduba Esq, SAN, identified four issues for the determination of the appeal. There are as follows:-

i. Does liquidation of a company rob it of a right to bring an appeal/application without leave with regard to section 417 of the companies and allied matters act

ii. Should the Court of Appeal have granted the prayers of the respondent herein before it without considering whether the 3rd applicant before it had sought leave to continue the appeal/application

iii. Did the Court of Appeal in its ruling give effect to the principle of law enunciated in COOPERATIVES AND COMMERCE BANK (NIG) LTD VS ALEX O. ONWUCHEKWA (Pt.647) (2000) 3 NWLR 65.

iv. Was the Court of Appeal right in stating that only the vessel was a necessary party to the appeal”.

On the other hand, Oluseye Opasanya, Esq, counsel for the respondents, submitted a single issue for determination in the respondents’ brief filed on the 27th day of March, 2003. The issue is as follows:-

“Whether the third defendant requires leave of court to appeal pursuant to section 417 companies and allied matters act Cap 59, LFN 1990, as a condition for its appeal to the Court of Appeal”.

I hold the considered view that having regards to the facts of this case relevant to the appeal and the decision of the lower court on appeal to this court, the single issue formulated by learned counsel for the respondents is the real issue in controversy between the parties. Every other issue or sub issue begs the question; it is clear that it is a realization of the above that made the learned senior counsel for the appellant, in arguing the issues, to treat or argue his purported four issues together.

In arguing the issue under consideration, learned senior counsel for the appellant stated that the fact that the 3rd defendant, Northern Reefer A/S, the owner of the vessel MV Northern Reefer, the 1st defendant went into bankruptcy in the course of the proceedings is not in dispute but submitted that as a result of the said bankruptcy of the 3rd defendant, no action or proceedings “shall be proceeded with or commenced against the company except by leave of court given on such terms as the court may impose” relying on the Court of Appeal decision in the case of The C.C.B (Nig) Ltd vs Onwuchekwa (Pt.647) (2000) 3 NWLR 65 at 74 being that courts interpretation of the provisions of section 417 of the companies and allied matters act cap 59, laws of the Federation of Nigeria, 1990 (CAMA); that the leave so required is a pre-condition to the continuance of any action by the company that has been wound up; that since the respondents did not obtain the leave of the court before presenting the application to amend the notice of appeal, the resulting proceeding thereon is a nullity, relying on the case of NDIC vs. FMB (Pt.490) (1997) 2 NWLR 735 at 757-758 and Abeke vs NDIC (Pt.406) (1995) 7 NWLR 228. I must observe that the way learned senior counsel for the appellant cites cases is rather strange and unorthodox. The normal way we cite cases is to cite the name of the case (parties), the year it was reported, the particular volume of the report and the part of the report (book) where the case is reported, and the page on which it is reported. For instance:

Abeke vs NDIC (1995) 7 NWLR (Pt.406) 228 not Abeke vs NDIC (Pt.406) (1995) 7 NWLR 228. The learned senior counsel then proceeded to discuss the principles that the court would consider in deciding whether to grant leave or not under section 417 of CAMA and concluded that the failure of the 3rd defendant/appellant before the Court of Appeal to obtain leave rendered the continuation of the appeal before that court incompetent and urged the court to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned counsel for the respondents submitted that the provisions of the companies and allied matters act, CAMA, are not applicable to this case because:

(a) the 3rd defendant/respondent being a foreign company its affairs are not regulated by the provisions of CAMA, relying on sections 264(1), and 650 of CAMA;

(b) that the provisions of section 417 of CAMA do not require a company in liquidation to obtain leave of court before it can proceed with an action but that it requires leave in order for an action to be proceeded with or commenced against the 3rd defendant/respondent; that since the 3rd defendant was one of those that were the appellants in the lower court the situation contemplated by section 417 of CAMA does not arise.

Learned counsel then cited and relied on the decision of this court in Onwuchekwa vs. NDIC(2002) 5 NWLR (Pt 760) 371 at 393 and submitted that there is nothing in the said section 417 preventing the company in question from proceeding with action or proceeding against another person. Learned counsel finally urged the court to hold that the lower court was right in its ruling and resolve the issue against the appellant and dismiss the appeal.

Section 417 of CAMA, the interpretation of which is the bone of contention between the parties provides as follows:-

“if a winding up order is made or a provisional liquidator is appointed, no action or proceeding shall be proceeded with or commenced against the company except by leave of the court given on such terms as the court may impose.”

It is settled law that the duty of the courts is simply to interpret the law or constitution as made by the legislature or the framers of the constitution.It must therefore, be borne in mind always that the courts cannot amend the constitution or statute neither can they change the words used in drafting same.

From the reproduced section 417 of CAMA supra, it is my considered view that the provision is very clear and unambiguous. It is now settled that:-

“In the area of construction, the primary concern of the courts is the ascertainment of the intention of the legislature or law makers. From this function, the court may not reside however ambiguous or difficult of application the words of the law or act may be, the court is bound to place some meaning upon them. If the language is clear and explicit, the court must give effect to it, for in that case, the words of the statute speak the intention of the legislature. Its function is jus dicere not jus dare. The words of a statute must not be overruled by the judges” per OBASEKI, JSC, in Ojokolobo vs. Alamu (1987) 3 NWLR (Pt.61) 317 at 402.

Bearing the above words of wisdom in mind particularly as the words used in section 417 of CAMA are very clear and unambiguous, I hold the view that they ought to be given their plain and simple meaning as the said words speak for themselves particularly as they clearly demonstrate the intention of the framers of the statute which is clearly not to place any disability on the company mentioned under section 417 of CAMA from instituting or continuing any civil action against any person or persons during their bankruptcy or liquidation. The prohibition contained in section 417 of CAMA is rather against the plaintiff/appellant and for the benefit of the defendant mentioned therein.

It is very clear from the above provision that the party to seek and obtain the leave of the court before proceeding with or commencing an action against a company for which a provisional liquidator has been appointed or a winding up order made, is the party who intends to proceed with or commence the action, not the other way round. In the instant case, it is the appellant who is the plaintiff at the trial court that ought to seek and obtain leave of the court before proceeding further with the action at the trial court following the initiation of the process of liquidation of the 3rd defendant. The appellant is, however, not looking at the competence of his action against the 3rd defendant in the circumstances of this case but the competence of the appeal/application by the 3rd defendant.

However, the law on the point has been settled by this court in the case of Onwuchekwa vs. NDIC (2002) 5 NWLR (Pt.760) 371 at 393 per AYOOLA, JSC where he stated thus:

“There is nothing in section 417 which prohibits such company as is described in the section from proceeding with action or proceedings against another person. What that section prohibited subject to leave of the court is proceeding with action or proceeding against the company”.

In other words, the company as in this case, the 3rd defendant, does not need leave of court to proceed with action or proceeding against another company or person in this case, the appellant by way of the appeal. The provision is very much like the constitutional immunity granted the president/vice president, governor and deputy governor against suits and prosecution during their tenure of office which does not prevent or incapacitate the president/vice president or governor and deputy governor from instituting action against anybody for any wrong or claim of right during their said tenure of office:- see section 308 of the 1999 constitution and Tinubu vs. IMB Securities Plc (2001) 16 NWLR (Pt.740) 670 at 721- 722 where AYOOLA,JSC, expressed the following view:-

“Thirdly, I am unable to construe a provision of the constitution that granted an immunity such as section 308(1) as also constituting a disability on the person granted immunity when there is not provision to that effect, either expressly or by necessary implication in the enactment. If makers of the constitution had wanted to prohibit a person holding the offices stated in section 308 from instituting or continuing action instituted against any other person during his period of office, nothing would have been easier to provide expressly that:-

“no civil or criminal proceeding shall be instituted against any person by a person to whom this section applies during his period of office and no civil or criminal proceedings shall be instituted or continued against such a person during his period in office or in like terms. The makers of the constitution in their wisdom did not so provide”.

It should also be noted that section 417 of CAMA talks of leave of the court. The question is which court The learned counsel for the respondents has submitted that the relevant court is the Federal High Court, not the Court of Appeal or any other appellant has filed no reply brief in relation to the respondents’ position, thus denying this court the benefit of his reaction to the submission. It is however, very clear from the decision of this court in the case of FMBN vs. NDIC (1999) 2 NWLR (Pt.591) 333 at 365 and the provisions of section 650 of CAMA which defines the word “Court” as used in section 417 of CAMA that the “Court” whose leave is required before proceeding with or commencing any action against a company in liquidation or under a winding up order is the Federal High Court, not any other court like say the Court of Appeal or Supreme Court. In the instant case the application and the appeal on which it was made was before the Court of Appeal, not the Federal High Court. It is therefore clear again that the provision of section 417 of CAMA is inapplicable to the facts of this case.

Thirdly, it is the contention of learned counsel for the respondents that the 3rd defendant/respondent being a foreign company is not bound or affected by the provisions of section 417 of CAMA. As stated earlier in this judgment, the appellant filed no reply brief to counter the submission of counsel for the respondents on the issue. That notwithstanding, the issue is very much relevant and is worthy of consideration. There is no doubt, and which parties are agreed, that the 3rd defendant/respondent is a foreign company; it is not a Nigerian company. The question is whether being a foreign company its affairs are regulated by the provisions of CAMA.

Section 624(1) of CAMA provides as follows:-

(i) Except as otherwise provided, this Part A of this Act shall apply to:

(a) all companies formed and registered under this Act;

(b) all existing companies;

(c) all companies incorporated, formed or registered under other enactments; and

(d) unregistered companies”.

The question that follows is:-

“What is Part A of CAMA”. The answer is simply the provisions of the Act CAMA falling within sections 1-651 which clearly includes section 417 supra. It is very clear therefore that the 3rd defendant/respondent not being a Nigerian company or company falling within the definition of section 264 (1) of CAMA, its affairs are not regulated by the provisions of CAMA. The definition of “Company” in section 650 of CAMA puts the matter beyond doubt. It defines “Company” or “Existing companies”. To mean…..a company formed and registered under this Act or, as the case may be formed and registered in Nigeria before and in existence on the commencement of this Act”.

It is my considered view that the 3rd defendant being a foreign company, as it is not a Nigerian company as defined in section 650 of CAMA, the provisions of section 417 of CAMA do not regulate its affairs and that by the provisions of section 60 (b) of CAMA, the 3rd defendant/respondent can sue and be sued in its own name and can maintain such an action or proceeding.

In whatever angle one looks at the issue under consideration, it is clear that the issue fails and is consequently resolved against the appellant. In conclusion, I hold the considered view that the appeal is without merit and is consequently dismissed with N50, 000.00 (fifty thousand naira) costs in favour of the respondents. Appeal dismissed.

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SC.268/2002

Hope Democratic Party V. Independent National Electoral Commission & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

W.S.N. ONNOGHEN, JSC

This is an appeal against the ruling of the lower court sitting as the Presidential Election Tribunal, holden at Abuja in Election Petition NO. A/A/EP/5/07 delivered on the 20th day of August, 2007 in which the court struck out the petition of the appellant for being incompetent.

On the 18th day of May, 2007, the petitioner/appellant presented an election petition before the lower court in which it prayed the court, in paragraph 23 (a) and (b) as follows:-

“(a) An order of the tribunal, that the election is invalid for reason of non-compliance with substantial sections of the Electoral Act, 2006.

(b) An order of the tribunal that the election is invalid for reasons of corrupts (sic) practices”.

It is not disputed that the appellant is one of the duly registered political parties that took part or participated in the April, 2007 Presidential Election in Nigeria and was dissatisfied with the outcome of the said election hence the petition. The petition is against the following respondents:

(1) Independent Electoral Commission (INEC)

(2) Prof. Maurice Iwu (Chairman INEC)

(3) People Democratic Party (PDP)

(4) Alh. Umaru Yar’adua (PDP)

(5) The Nigerian Police Force

On the 31st day of July, 2007, learned senior counsel for the 4th respondents, Chief Wole Olanipekun, SAN, filed a motion in the lower court praying that the petition be struck out on the following grounds:-

“1. The 1st, 3rd and 5th respondents are not juristic persons or persons known to law.

2. It does not comply with section 145(1), paragraph 4(1) of the 1st schedule to the Electoral Act, 2006.
3. The petition is not properly constituted as persons or institutions who are proper, necessary or desirable parties and whose presence are required for a just determination of the petition have not been made parties.
4. The petition is hypothetical, moot or academic.
5. The reliefs being claimed by the petition are at large and same vest no right or benefit in the petitioner”.

On the 3rd day of August, 2007 the learned senior counsel for the 1st and 2nd respondents, Kanu Agabi Esq, SAN also filed a motion and a preliminary objection praying for the striking out or dismissal of the petition on grounds very similar to those earlier reproduced in this judgment.

The objections/motions were consolidated and heard together and in a reserved ruling delivered on the 20th day of August, 2007 the lower court, sustained same as a result of which the petition of the appellant was held to be incompetent and consequently struck out. The instant appeal is against the said ruling.

In the appellant’s brief filed on 12/9/07, learned counsel for the appellant, Chief A. Owuru identified the following issues for determination:-

“1. Whether the tribunal’s interpretation of section 145 of the Electoral Act, 2006 and paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006 was right and or justified based on which the petition was struck out for non-compliance with the said provisions of the Electoral Act.

2. Whether the jurisdiction of the tribunal was not involved going by the content and issues of law canvassed in the petition as relevant to the petitioner’s case satisfying or complying with the provisions of section 145 of the petition and paragraph 4(1) (d) of first schedule to the Electoral Act, 2006 or whether compliance with all the grounds and condition of the said sections and paragraph to the Act is in mandatory terms.
3. Whether the tribunal was right to strike out the election petition for non-joinder of necessary parties following its decision that the 1st and 2nd respondents are non-juristic persons due to observed omission of the word “National” in one of the five sets of document/processes filed before the tribunal OR whether the tribunal was right in entertaining the objections form (sic) or technical grounds raised by the respondents after having waiver (sic) their rights and taken fresh steps without compliance with the Rules”.

On behalf of the 1st and 2nd respondents, the following issues have been formulated by Kanu Agabi Esq, SAN in the brief of argument filed on the 4th day of January, 2008:

“2.01. Whether the appellant failed to comply with the mandatory provisions of section 145 of the Electoral Act, 2006 and paragraph 4 (1)(d) of the first schedule to the Electoral Act and if so whether the lower court was right to strike out the petition on that ground (Grounds 1, 2 and 3).

2.02. Whether the lower court was right in holding that the 1st and 2nd respondents were not juristic persons within the contemplation of the law and if so whether that court was right in striking out the petition on the ground of non-joinder of necessary parties (Grounds 4 and 5).

2.03. Whether the respondents had waived their right to move the court to strike out the petition as incompetent by taking fresh steps in the proceedings after becoming aware of the issues giving rise to the application to strike out the petition”.

Similar Issues were formulated and argued by learned senior counsel for the 3rd respondent, Chief Joe-Kyari Gadzama .. SAN in the brief deemed filed on 12/2/08; Chief Wale Olanipekun, SAN in the brief of argument filed on behalf of the 4th respondent on 8/10/07 and C. U Ekomaru, Esq for the 5th respondent in his brief deemed filed on the 15th day of January, 2009.

In arguing issue 1, learned counsel for the appellant, Chief Owuru referred to the provisions of section 145 (1) (b) of the Electoral Act, 2006 and submitted that the said section allows the petitioner a choice of grounds appropriate to its case and that the relevant ground on which the instant petition was based is clearly stated in the petition – which learned counsel submitted is that the election was “invalid by reason of corrupt practices and non-compliance with the Electoral Act, 2006”; that the petition is not questioning the number of votes scored in the election by the candidates thereto; that the petition conforms with the provisions of sections 140(1) and 145(1) (b) of the Electoral Act, 2006 as is evidenced in the pleadings in paragraphs 1,2,3,4,5,6,7,8,9,20,21,22 and 23 of the petition which show that the ballot papers used for the election was not bound and numbered serially as required by section 45(2) of the Electoral Act, 2006 and advertised in the Punch Newspaper of 13th April, 2007; that the provisions of paragraph 4(1)(d) of the first schedule to the Electoral Act, 2006 refer to the same grounds as required by section 145(1) (a) to (d) of the Electoral Act, 2006 and ought not to be treated or interpreted in isolation from the said section 145; that the objections of the respondents to the petition have to do with the form in which the petition is presented which ought not to have been countenanced having regards to the provisions of paragraph 49(1) and (4) of the first schedule to the Electoral Act, 2006; that the petitioner has a cause of action contrary to the holding of the lower court and urged the court to resolve the issue in favour of the appellant.

Learned senior counsel for the 1st and 2nd respondents, Kanu Agabi Esq, SAN referred to the provisions of section 145(1) of the Electoral Act, 2006 and submitted that the appellant’s petition has no ground alleging that the 4th respondent is not qualified to contest the election; that the election was invalid by reason of corrupt practices or noncompliance with provisions of the Act; that the 4th respondent was not elected by majority of lawful votes cast at the election neither was there any ground alleging that the appellant’s candidate was unlawfully excluded from the election; that once there are no grounds in support of a petition, the petition is deemed to be invalid and that the lower court was right when it struck same out, relying on the Court of Appeal decision in Ogboru v. Ibori (2004) 7 NWLR (Pt. 871) 192 at 223-224.

Learned senior counsel also referred to the provisions of paragraph 4(1) of the first schedule to the Electoral Act, 2006 and submitted that the petition failed to comply with that provision and that the lower court was right by virtue of the provisions of paragraph 4(6) of the first schedule to the Electoral Act, 2006 in striking out the petition, relying on Obi Odu v. Duke (No.2) (2002) 10 NWLR (Pt.932) 105 at 144-145; that the lower court also found that there was no cause of action disclosed in the petition and urged the court to resolve the issue against the appellant.

On his part, learned senior counsel for the 3rd respondent submitted that the lower court was right in striking out the petition for non-compliance with the provisions of section 145(1) of the Electoral Act, 2006 and paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006 as the same did not disclose any cause of action; that the petition made general and wild allegations of fraud and forgery and corrupt practices etc and urged the court to resolve the issue against the appellant.

The submission of the learned senior counsel for the 4th respondent Chief Wale Olanipekun, SAN and counsel for the 5th respondent, C.U Ekomaru Esq on the issue 1 is substantially the same with what had already been summarized in this judgment. They too urged the court to resolve the issue against the appellant.

The relevant provisions to the resolution of issue 1 are sections 145(1) of the Electoral Act, 2006 and paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006. These provide as follows:-

“145 (1) An election may be questioned on any of the following grounds-

(a) That the person whose election is questioned was at the time of the election not qualified to contest the election.

(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act;

(c) That the respondent was not duly elected by the majority of lawful votes cast at the election or;

(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election”.

Paragraph 4 (1) (d) supra provides thus:-

“4 (1) An election petition under this Act shall ….

(a) Specify the parties interested in the election petition.

(b) Specify the right of the petitioner to present the election petition.

(c) State the holding of the election, the scores of the candidates and the person returned as the winner of the election; and

(d) State clearly the facts of the election petition and the ground or grounds on which the petition is based and the relief sought by the petitioner”.

It is very clear that a combined reading of section 145(1) and paragraph 4(1) of the first schedule both supra clearly sets out four distinct grounds for presenting an election petition as non-qualification of the candidate(s) returned; invalidity of an election by means of corrupt practices or noncompliance with the provisions of the Electoral Act, 2006; that the respondent was not duly elected by majority of lawful votes cast at the election; and, valid nomination of a candidate who was wrongfully excluded from the election. It is clear that the grounds for questioning an election by way of an election petition mentioned in paragraph 4(1) (d) supra are as specified in section 146(1) of the Electoral Act, 2006.

The lower court, in dealing with the issue under consideration stated thus, inter alia:

“I have taken time to read through the petition several times. I cannot see where the grounds for the petition have been stated, not to talk of stating it clearly. And the same cannot be left to conjecture. I need to also state that facts relied upon were often generalized”.

The court also stated inter alia:

“No ground is stated as forming the pivote of the petition as enjoined by the provision of paragraph 4(1) (d) of the first schedule to the Electoral Act, 2006……..there appears to be a failure of cause of action in toto…. I strongly feel that the petitioner should be told that since he failed to comply with the rules set out in paragraph 4 (1) (d) of the first schedule to the Act (sic) and did not state any cognizable ground for bringing his petition as mandated by the provisions of section 145(1) (a) to (d) of the Act she failed to initiate her petition by due process of the law. After all, where a statute provides for a particular method of performing a duty regulated by statute, that method and no other must have to be adopted”.

The question that calls for an answer is whether the lower court is right in holding supra. It is not in dispute that a petitioner is required by law to state in his petition the ground or grounds on which the petition is predicated in addition to stating therein the facts relied upon to sustain the said ground or grounds and finally the relief(s) sought.

The provisions are mandatory.

Did the appellant state any ground or grounds on which the petition is based While the appellant argues that it did, the respondents and the lower court are of the view that it did not. Since the facts stated in the petition constitute the pleadings, it is necessary to take a close look at the petition of the appellant in the determination of the issue under consideration.

I must confess that the petition is not well or elegantly drafted particularly as it did not separately state the grounds for presenting the petition under separate heads or subheads. This means that for one to determine whether the petition is based on any ground(s) as required by law, one has to read through the paragraphs of the petition to see what the petitioner pleaded.

In paragraph 1, the petitioner/appellant pleaded as follows:-

“Your petitioner is a political party which participated in the election under question and which sponsored and presented a candidate for the proposed April, 21st 2007 Presidential Election, which election did not hold or conducted at all by the 1st and 2nd respondents in accordance with the 1999 Constitution, electoral laws, rules and guideline of the proposed election”.

In paragraph 21, the petitioner/appellant pleads thus:-

“The petitioner avers that the ballot papers used for the April 21st, 2007 Presidential Election where (sic) not bounded in booklet and numbered serially as mandatorily required by law given (sic) room for undue manipulation and perpetuation of fraud on the election day. The petitioner shall at the trial found and rely on the loose ballot papers without serial numbers for the said April Election the 1st and 2nd respondent (sic) are hereby given notice to produce copies of the ballot papers for the April 21st, 2007 Presidential Election.”

Finally, in paragraph 23 the petitioner/appellant pleaded thus:-

“The petitioner shall contend that the election being fraught with grave non-compliance with the constitutional and statutory laws regulating the said election with obvious omissions and inbuilt manipulation that the 1st and 2nd respondents (sic) with clear in built mechanism for fraud, no candidate in that election ought to have been returned at (sic) duly elected including the 4th respondent as the purported election was not free, fair and credible and stands vitiated by those factors as a non-election illegal and therefore non (sic) and void in the circumstance.

i. Grave non-compliance and corrupt practices must affect the election results substantially and wholly.

ii. No candidate can be validly elected or returned in such circumstance.

WHEREFORE THE PETITIONER PRAYS THAT IT BE DETERMINED AS FOLLOWS:-

a. AN ORDER of the tribunal, that the election is invalid for reason of non-compliance with substantial sections of the Electoral Act, 2006,

b. AN ORDER of the tribunal that the election is invalid for reasons of corrupt practices”.

I had earlier stated that the petition is not elegantly drafted. However, by looking at the paragraphs of the petition reproduced in this judgment, it is very clear that the petition contains a ground recognized by the relevant section of the Electoral Act, 2006 particularly section 145(1) (b) thereof which provides that:

“(b) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act”.

The facts on which the ground of non-compliance with the provisions of the Electoral Act, 2006 is based have also been pleaded – that the ballot papers were neither bound in booklet form nor numbered serially as required by the Electoral Act, 2006 – see paragraph 21 of the petition and section 45(2) of the Electoral Act, 2006, which clearly provides that:

“(2) The ballot papers shall be bound in booklets and numbered serially with differentiating colours for each office being contested”.

In the circumstance, I am of the view that the lower court was in error when it held that the petition was not based on any ground known to law and that it did not disclose any cause of action. I therefore, resolve the issue in favour of the appellant.

On issue 2, I hold the view that the resolution of issue 1 has done away with issue 2 as formulated by learned counsel for the appellant. The issue as formulated is:

“Whether the jurisdiction of the tribunal was not invoked going by the content and issues of law canvassed in the petition as relevant to the petitioner’s case satisfying or complying with the provisions of section 145 of the Act and paragraph 4(1)(d) of the first schedule to the Electoral Act, 2006 or whether compliance with all the grounds and condition of the said sections and paragraph to the Act is in mandatory terms”.

The above issue is therefore discountenanced by me.

On issue 3, learned counsel for the appellant admitted that there was a typographic error relating to the omission of the word “National” in the nomenclature of the 1st respondent in the petition, which is one out of five documents filed at the registry of the lower court as required by statute. Learned counsel however submitted that the error does not make the 1st respondent to be a non-juristic person as well as the 2nd respondent as described in the petition; that the addition of the acronym “INEC” to the name of the 1st respondent clearly shows that the appellant intended to sue the Independent National Electoral Commission (INEC); that the court should take judicial notice of the use of the name “INEC” by invoking section 74 of the Evidence Act to hold that it refers to the 1st respondent; that an election petition is properly constituted when the person elected or returned is joined as a party and any other respondent is a deemed respondent depending on the complaint against him and that a non-joinder of same does not affect the competence of the petition, relying on sections 140(1) and 144 (2) of the Electoral Act, 2006; that in the instant case, the 4th respondent was joined in the petition as a statutory respondent whose presence validated the petition once it is clear that the petitioner has locus standi to present the petition and urged the court, to resolve the issue in favour of the appellant and allow the appeal.

On his part, learned senior counsel for the 1st and 2nd respondents submitted that the courts have no jurisdiction over non-juristic persons such as the 1st and 2nd respondents mentioned in the petition; that the 2nd respondent is sued in his personal capacity, referring to the provisions of section 144(2) of the Electoral Act, 2006 learned senior counsel submitted that the appellant has no right to sue the 2nd respondent in his personal capacity and that the lower court was right in striking out his name from the petition; that there is a world of difference between the Independent National Electoral Commission and the Independent Electoral Commission as one is known to law while the other is not and urged the court to resolve the issue against the appellant and dismiss the appeal.

On his part, learned senior counsel for the 3rd respondent Chief Gadzama, SAN referred the court to section 153(1) of the 1999 Constitution on the establishment and name of the Independent National Electoral Commission comparing same with the 1st respondent as described in the petition; that the name of the 3rd respondent was also not correct as it is described or called People Democratic Party, instead of Peoples Democratic Party; that even the name of the 5th respondent was wrongly stated on the processes.

Learned senior counsel also referred to section 144(2) of the Electoral Act, 2006 and submitted that the appellant was wrong in suing the 2nd respondent in his personal capacity and urged the court to resolve the issue against the appellant and dismiss the appeal.

There is no doubt, that the 1st respondent whose real name is Independent National Electoral Commission with the acronym of INEC was described/named in the petition as Independent Electoral Commission (INEC); apart from the petition, the name of the 1st respondent was properly described in all the other documents filed along with the petition to wit, notice of petition; receipt of petition; witness statement on oath; list of witnesses.

From the above, it is very clear that the omission of the word “National” in the name of the 1st respondent between “Independent” and “Electoral” in the petition alone out of the five documents filed challenging the election is an error on the part of the appellant. The question is whether the error is fatal to the petition of the appellant as held by the lower court.

It must be borne in mind that the facts demonstrate in no uncertain terms that the appellant intended to sue the Independent National Electoral Commission (INEC) instead of Independent Electoral Commission (INEC) particularly as the acronym INEC added to Independent Electoral Commission clearly demonstrates. It is in no doubt whatsoever that the said acronym INEC refers to no other body other than Independent National Electoral Commission which the court can under the provisions of section 74 of the Evidence Act, take judicial notice of. It should be noted that though election petitions are said to be sui generis they are concerned with the political rights and obligations of the people – particularly those who consider their rights injured by the electoral process and need to ventilate their grievances. Such people ought to be encouraged to do so with some latitude knowing that in the process of initiating proceedings to ventilate their grievances mistakes, such as those in the instant case may occur. Since the intention of the Electoral Act and other laws employed in litigation are geared towards ensuring that substantial justice is done to the parties at the expense of technicalities, any conclusion that tends to shut out an aggrieved party from the temple of justice by not hearing him on the merit ought not to be encouraged in the interest of peace and democracy.

I therefore hold that having regards to the acronym INEC which was added to the name of the 1st respondent in the petition, the respondents and the court were not misled as to the person being sued by the appellant particularly as the appellant made the mistake only on the petition while the other documents filed by the appellant as well as those by the 1st respondent clearly described the 1st respondent as Independent National Electoral Commission (INEC). In the circumstance, I hold the view that the lower court was in error when it held that the 1st respondent is a non-juristic person.

With respect to the 2nd respondent, section 144(2) of the Electoral Act, 2006 provides as follows:

“2. The person whose election is complained of is, in this Act, referred to as the respondent, but if the petitioner complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a respondent and shall be joined in the election petition in the official status as a necessary party”.

It is very clear from the above provisions that only the persons named/recognized by section 144(2) of the Electoral Act, 2006 can be made respondents to any valid election petition and that apart from the statutory respondent who has to be sued in his personal capacity every other respondent has to be joined in appropriate cases, in their “official status” or capacity.

The question is whether Prof. Maurice Iwu (Chairman INEC) is sued in his official status or capacity in the instant petition. Learned counsel for the appellant has argued that the 2nd respondent is sued in his official capacity as chairman of INEC or in the alternative that having regard to the fact that allegations of improper conduct have been made in the petition against the person of the 2nd respondent, he has to be sued in his personal capacity.

I hold the considered view that the 2nd respondent as described in the instant petition is sued in his personal capacity, not in his official capacity. The person sued is clearly Prof. Maurice Iwu while the clause (Chairman INEC) serves only to qualify him. I have gone through the petition and I do not agree with the learned counsel for the appellant that Prof. Maurice Iwu played any personal role in the conduct of the April, 21st 2007 presidential election; even if he did, the law says that he has to be sued in his official status not private or personal capacity. I therefore hold the view that the lower court was right in striking out the name of the 2nd respondent from the petition.

As regards the striking out of the names of the 3rd and 5th respondents on the ground that the letter S was not added to People to make it Peoples Democratic Party while the letter N was added to Nigeria in Nigerian Police Force is too trivial to be considered any further in this judgment.

By the way, is it not rather strange that even the name of the statutory respondent, the 4th respondent was not considered by the lower court as being sufficient to sustain the petition granted that all the other respondents were non-juristic persons as held by the lower court Is the 4th respondent also not a juristic person capable of being sued in the instant election petition The answer is very obvious.

In conclusion, I find merit in this appeal which is accordingly allowed by me. The ruling of the lower court delivered on the 20th day of August, 2007 is hereby set aside except the order striking out the name of the 2nd respondent from the petition which is hereby affirmed. It is further ordered that the petition be and is hereby remitted to the lower court to be heard on merit before another panel to be constituted by the President of the Court of Appeal.

I make no order as to costs.

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SC.251/2007

Chief Adesina Jinadu & Ors. V. Chief Israel Esurombi-aro & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The respondents were the plaintiffs before the Lagos High Court where they claimed against the appellants (as the defendants) the following reliefs:

“1. A declaration of title under native law and custom to all that parcel of land being part of Ojora Chieftaincy Family land situate at Iganmu, Lagos comprising inter alia Orile Iganmu, Aloko Sarage, Sari, Offa-Offin, Oso-Olodi, Tokosi, Coker, Ajabe, Laniyonu, Tapa Bankole, Imoro and adjourning villages shown on Plan No. AL 641/1974;

2. Forfeiture of the customary tenancy and occupational right of all the defendants and each of them in the land in dispute.
3. Possession of the said lands.”

The parties filed and exchanged pleadings. The suit was heard by Segun C.J. On 13th December, 2000, the trial Chief Judge in his judgment granted the claims of the plaintiffs now respondents. The counter-claims filed by some of the defendants were dismissed. The defendants/appellants were dissatisfied with the judgment of the trial court. They brought an appeal before the Court of Appeal, Lagos (hereinafter referred to as ‘the court below’). The court below, on 8/11/2004 dismissed the appeal. Still dissatisfied, the defendants/appellants have come on a final appeal before this Court. It is necessary that I point out here that the appellants before this Court are in two groups, namely the 1st – 12th appellants and the 13th appellant who was the 24th defendant before the trial court. In the appellants’ brief filed on behalf of the 1st – 12th appellants, the issues for determination in the appeal were identified as the following:

“1. Whether the Court of Appeal was right when it held that the plaintiffs/respondents were entitled to a declaration of title to the land in dispute. Grounds 1,5 and 7.

2. Whether the plaintiffs/respondents can maintain an action for declaration of title to the same land acquired by government even on the admission of the 9th Plaintiffs’ witness Chief Taoreed Lawal-Akapo. Grounds 6 and 9.
3. Whether the Court of Appeal properly considered the issues of admissibility and probative value of the documentary and oral evidence raised by the 1st -12th appellants in the determination of the appeal before them. Grounds 3, 6, 8, 10, 11 and 12.
4. Whether the plaintiffs/respondents proved that the 1st – 12th appellants, the 1st set of defendants/appellants were their customary tenants. Grounds 2 and 4.”

In the appellant’s brief filed by counsel on behalf of the 13th appellant, the issues for determination were stated to be these:

“1. Whether on the state of the pleadings and admissible evidence before the court, the plaintiff could be said to have proved title to the land in dispute .

2. Whether there is evidence that the 24th defendant/13th appellant’s family are customary tenants of the plaintiffs .
3. Whether the evidence in support of the 24th/13th appellant’s case is sufficient to grant the counter-claim…”

It is appropriate that the pleadings of the parties upon which the case was tried be discussed in order to expose the standpoints of the parties on the germane issues in this appeal. The plaintiffs/respondents in paragraphs 2, 3 and 4 of their amended Statement of claim pleaded thus:

“2. The land in dispute forms a portion of a large area of land which belonged to the Ojora Chieftaincy Family absolutely under Yoruba Native Law and Custom.

4. The Ojora Chieftaincy Family is one of the Idejo Land owning Chieftaincy Families of Lagos and its traditional head is the Chief Ojora, a Lagos Idejo White Cap Chief.
5. The whole of the land originally owned by the Ojora Chieftaincy Family (hereinafter referred to as the Ojora Land) were known generally as Iganmu and have been in the possession of the said family (sic) from time immemorial and is bounded on the East by the Lagos Lagoon and part of Lagos Island and Ebute-Metta; on the North by the land of Oloto Chieftaincy Family Abebe Creek, Iguru Swamp and Itire Land; on the West by the land of Amuwo and of Alahun and on the South by the land of the Oluwa Chieftaincy Family, and more particularly shown on a plan dated December 1918 made by Herbert Macaulay (now deceased.)”

The respondents subsequently went on to plead the diverse acts of possession spanning several years and how the ancestors of the defendants/appellants became their customary tenants. In paragraphs 46 to 57, the plaintiffs/respondents pleaded thus:

“46. The Plaintiffs aver that several other villages such as Odi Village, Tinubu Village, Dodoro and several others were occupied by customary tenants of the Plaintiff’s family and they all paid tribute and later rent in the form of cash to the Plaintiff’s family and many of the occupants of such villages still acknowledge the ownership of the Plaintiff’s family.

47. The Plaintiff’s family have exercised maximum accts (sic) of ownership over the land In dispute and other surrounding villages which form part of their land at Iganmu by:-

(i) Placing tenants upon and collecting tribute and rents as aforesaid from the villages hereinbefore mentioned as well as others such as Apata, Oguntayo, Obadiya, Alaiyabiagba Tokosi, Amukoko Ajegunle, Aiyetoro, Mosafejo Alaba Metta, Onikere, Olongo, Layeni, Dodaro,

Agidimo Apapa Elemu (before compulsory acquisition) Tinubu and several others.

(ii) Appointing or approving the appointment of the Bale of each of the said villages where necessary.

(iii) Prosecuting several litigation over the years against trespassers or other claimants to other portions of the Ojora Chieftaincy Family lands such as:-

(a) Suit No. 113/1939 Chief Ojora V. Lawrence Gardozo in respect of land upon which the present Gaskiya College is now built.

(b) Suit No. LD/48175 Chief Lawani Akapo v. Latunde Lawrence in respect of the same land.

(c) Suit No. LD/375/68 Chief A. L. Odunsi Ojora v. Muniratu Ajiwun & Ors. in respect of land at Apata Village.

(d) Litigation against a branch of the Amuwo Odofin Family as to the ownership of land which forms part of the South-Western boundary of Ojora lands aforesaid in HK/94/60 Yaba Lemonu & Ors. v. Ajayi & Ors.

(iv) Granting or dedicating lands to Local Authorities and Local communities for Public use e.g. Markets (Ajegunle) Cemeteries, Local Government Council offices.

48. All the customary tenants of the Plaintiffs originally paid tribute in the form of farm products and homage until 1922 when the customary tribute was converted to small cash payments.
49. The Defendants with many of the other tenants have quite recently formed themselves into a group that now variously described themselves as the ‘Iganmu community’ ‘Iganmu Family & Council’ and ‘The Ilupeju Iganmu United Movement Group’ and have as such claimed to be absolute owners of the land and have been granting leases of the land to strangers and to themselves as absolute owners.
50. The Defendants have set up officers in various parts of the land in dispute and chose several of the other members of their group to the offices and to it (sic) or sell out portions of the land in dispute to strangers.
51. The Plaintiffs further aver that individuals who belong to the said group have also commenced to lease and/or set the Plaintiffs Family land individually and have collectively denied the ownership and overlordship of the Plaintiff.
52. Defendants by their servants and agents have repeatedly prevented the grantees of the Plaintiffs from taking possession of the lands lawfully granted to them by the plaintiffs.
53. The defendants have on several occasions used great violence on the Plaintiffs and their agents and grants and have repeatedly attacked the members of the Plaintiffs Family

on the land and have generally established a reign of terror in the area.

54. In a Public Notice appearing above the name of the 1st Defendant as alleged Bale of Iganmu and published in the issue of the Daily times of the 12th June 1971 the 1st Defendant claimed ownership of the land in dispute for the Defendants-therein described as the Iganmu Community Council.
55. On the 17th of November 1972 the Defendants led by the 1st, 2nd and 11th Defendants and their relations and thugs forcibly entered Ama Li’l’s house declaring that they would kill him for not joining them to claim the land in dispute against the Plaintiff Family.
56. The said Defendants also threatened to attack other tenants of the Plaintiffs who did not join them and who maintained good relations with the Plaintiffs Family.
57. On the 16th of November 1972 the Defendants fully knowing that Monday Ugbogu was the Plaintiff’s Surveyor’s employee engaged in the survey of the land in dispute for the purpose of this case assaulted the said Ugbogu on the land in dispute.”

The 1st – 12th defendants/appellants in paragraphs 5 – 44 of their amended Statement of Defence pleaded thus: “5. Their land (including the site of their original palace) was acquired many years ago by Government.

6. The land so acquired was in Iddo Island and was owned and occupied by the Ojora Family who were paid compensation for the said land.
7. As the entire Family was by this acquisition dispossessed of all their land and following appeals made by them to the then Colonial Government and consequent upon the agreement reached between the Ojora Family and the Government, by a lease dated 19th December 1925 and registered as No. 39 at Page 39 in Volume 195 Lagos, the Government of Nigeria granted a large parcel of land to the Ojora Family ‘in place of the said lands so acquired’.
8. These defendants aver that the Ojora Family built a new Palace for their then Chief Ojora, one Bakare Faro, (otherwise known as Bakare Faro olugbode) on a plot within the land leased to them and two minor palaces for their Chiefs Odofin of Ijora and Aro of Ijora.
9. Plan HU/LA/3400 of the 2nd October 1986 which, inter alia, shows the land originally owned by the Ojora Family and the land on which they were resettled by Government as tenants of Government.
10. These defendants will contend that the Ojora Family never owned any land to the North West or South of the area granted to them by Government and now own no such land.
11. These defendants aver that they have never paid any tribute or terminal dues of any kind to the Ojora Family in their lifetime and that their for bears did not tell them that they had paid any payments as customary tenants to the said Ojora Family.
12. These defendants aver that although about one half of the land subject matter of the plaintiffs claim has been acquired by Government, the plaintiffs family did not put up and has not up to the date hereof put up any claim to compensation for the land so acquired.
13. These defendants aver that the original 1st defendant was late Abudu Gafar Oyewole Bello, Bale of Orile Iganmu who succeeded his father Quadri Bello (Deceased) as Bale in 1964.

13a. These defendants aver that Quadri Bello (deceased) succeeded his father Abudu Bello (dec’d) as Bale of Orile Iganmu in 1944

13b. These defendants aver that late Gafar Oyebowale Bello, the original 1st defendant and his predecessors as Bale of Orile Iganmu never told them that they are tenants of Ojora family on Iganmu land.

14. With regard to Tapa Village, one Abudu Bada, a native of Bida, was the first settler there.
15. Abudu Bada was an itinerant drummer and first reached what is now Orile Iganmu where he met Oke, the first settler at Iganmu.
16. Abudu Bada later moved on and settled at the spot now known as Tapa Village.
17. Bada begat Gbogboji who begat Rufai who begat the 15th defendant.
18. These defendants aver that the plaintiff knows nothing about the several villages mentioned in the Amended Statement of Claim and are now merely scouting for information about them.
19. In this regard these defendants will point out that the genealogy of the Gbogboji Family as presented by the plaintiff is wrong and that Momo Gbogboji had five children, namely, Saka, Rufai, Aminotu, Asana and Yekini.
20. The 15th defendant avers that neither her father nor her grand-father, both of whom she grew up to know, told her that they were customary tenants of the Ojora Family.
21. The 2nd defendant a native of Atoko Village, is aged over 80 years and is very ill and immobile.
22. One Yisa, a Hausaman and catapult hunter arrived in the course of his journeying settled at Aloko Village.
23. Yisa begat Abu and Abu begat the 2nd defendant.
24. These defendants aver that there was no Momoh Aloko at Aloko Village and that the derivation of the name of the Village is ‘Eniti o loko ni ido-Oro’.
25. The 5th defendant is a son of Lawani Ajagbe, whose forbear Ajagbe, a native of Offa, first settled at Ajagbe Village (sic) 100 years ago.
26. The 7th defendant lives in Osho Village, his ancestors has first settled there for over 100 years ago.
27. The 9th defendant avers that his grandfather was one Momoh Tapa (Nupe) who came to meet his kinsman Momodu Gbogboji (sic) what is now Tapa Village.
28. xxxxxxxxxxxxxxxxxxx
29. xxxxxxxxxxxxxxxxxxxx
30. The 3rd and 4th defendants are natives of Savage Village.
31. They are descendants of one Aina Agbenotefon a hunter, who first settled at the spot now known as Savage Village.
32. He begat one Ajayi who begat one Buraimoh Moroun. When Buraimoh was of school age his father agreed to his being called Moroun Savage to facilitate the lad’s admission to a Christian school.
33. When he grew up he lived in the village and the village took his name Savage.
34. One Oke, who hailed from He-Ife; a hunter on a hunting expedition reached Isunba, a place

near the present Kirikiri where he stopped.

35. The area was swampy and he made expeditions from there and on one of such expeditions he

sighed an elephant which he attacked.

36. The elephant travelled a distance and then fell and died; Oke called the spot ‘Egan yi mu’ i.e., this ground is fertile.
37. These defendants aver that the spot up to his day remains the Ojubo of the god of iron at Iganmu.
38. Oke and his people then left the swampy Isunba for his new settlement on hard soil which he

named ‘Egan yi mu’, now Iganmu.

39. Oke was later joined by more people and consequently, among others, the several villages mentioned herein, among others, came into existence under the paramount rule of Oke and his successors as the head of his Family. The 1st defendant is a descendant of Oke.
40. These defendants aver that their traditional history as herein set out is what their fathers and forbears told them and they had no reasons for disbelieving them.
41. These defendants aver that the capacity or capacities in which they are sued is not a juristic person or one known to the law.
42. These defendants aver that each and every one of them holds his or her respective portion of

land in his or her individual capacity and will therefore contend that the plaintiffs claim against them jointly is misconceived and invalid for mis-joinder.

43. These defendants aver that they have not either as individuals or as a body been authorized to

defend this action by anybody.

44. These defendants aver that the plan filed by the plaintiff is vague and bad in law for the purposes of this case as it does not show the portion alleged to have been given to each of these defendants.”

The 24th defendant before the trial court, and now the 13th appellant in his 2nd Further Amended Statement of defence pleaded in paragraphs 4 – 9 thus:

“4. The land in dispute forms portion of a larger area of land owned by Yesufu Adeosi’s family by right of inheritance and consists of IGANMU DISTRICTS made up as follows:

(i) Orile Iganmu with all its villages namely: Coker, Tapa, Aloko, Imoru, Oso-Offin, Tokosi, Savage, Sabisi, Ajagbe, Laniyonu, Aleilo, Oso-Olodo, Sari and Bankole (formerly Fatula).

(ii) (a) Oguru or Eguru otherwise known as Iguru

(b) Ita Mea otherwise known as Tameda with all their villages namely: Aguda, Falohun, Sla, Padumo, Soluade and Suberu.

5. In 1865, Eguru and Tameda were acquired by the said Yesufu Adeosi and his son-in-law Abdul Kadiri Laguda was the first to farm on the land hence the name Aguda Village.

5(a). The defendant denies that Iganmu land is bounded on the north by Iguru swamp as Iguru is part of Iganmu.

6. The said Yesufu Adeosi (deceased) is the grandfather for the defendant and Tesilimi Adewusi who died in 1974, whose son Isiaka Adewusi has now been replaced as 7th defendant to this suit.
7. Yesufu Adeosi (deceased) was born in Iganmu by one Adetona and Adetona was born by Adewuyi and Adewuyi was born by Adewunmi and the said lineal ancestors of the said Yesufu Adeosi had lived and farmed as reputed.
8. Yesufu Adeosi’s ancestors settled in Iganmu at a time when the place was a jungle with no sign of human habitation. Iganmu derives its name from ‘Egan meaning thick bush or farm. ‘Egan Muyiwa’ meaning the farm or bush produces fruits, vegetables, rice, milk from cows, meat and even grass that animals feed upon. Hence the name ‘Egan Muyiwa’ was corrupted to ‘Iganmu’. Iganmu has taken its name before the Tapas came.
9. Several years after the said Yesufu Adeosi’s ancestors’ settlement in Iganmu, people came one after another attempting to settle in Iganmu and its suburbs, but they went back to other places when they discovered that Yesufu family was there.”

It is apparent from a close perusal of the extracts from the parties’ pleadings reproduced above that this case was not fought on strictly the basis of traditional evidence. The plaintiffs/respondents claim of ownership was based on acts of possession spanning several years and the fact that the defendants/appellants’ ancestors were their customary tenants. The 1st- 12th appellants on the other hand anchored their resistance on the fact that whatever land that had previously belonged to the plaintiffs/respondents had been acquired by the Government. They also denied being the customary tenants of the plaintiffs/respondents. The 13th appellant pleaded that the land in dispute had belonged to his ancestor by name Yesufu Adeosi. He pleaded further that his ancestor was the first person to settle on the land in dispute.

Against the background of the issues joined by the parties, I now proceed to consider the issues raised for determination by the 1st to 12th appellants. The four issues raised by them would appear to be different perspectives of the same issue which is whether or not on the totality of the evidence called by the plaintiffs/respondents they were entitled to the judgments given in their favour by the two courts below. It was the contention of the appellants’ counsel in his brief that the plaintiffs/respondents had not before the trial court called evidence as to the specific holding of each of the defendants and further that persons to whom the receipts exhibits E, F, G, G2, J, J1, K, K1, AA3, AA7, M, N, N1, Z and Z2, F1, G1, AA1, AA2, AA4, L1, L2, O, P and Q were issued were not called as witnesses. It was submitted that the receipts amounted to hearsay and were therefore incapable of establishing the ownership asserted by the plaintiffs/respondents. Counsel relied on Umeojiako v. Ezenamuo (1990)1 NWLR (Pt. 126) 253 at 267; Lord St. Leonards v. Ashburner [1870} 2 L.T. 595 at 596 and Omega bank Plc. v. O.B.C. Ltd. (2005) 1 S.C. (Part 1) 49 at 72-74. It was further submitted that the plaintiffs/respondents did not make any attempt to prove the signatures on exhibits E, F, G, G2, J, N, K, K1, AA3, AA7, M, N, Z, Z1 and Z2 as required under Section 100 of the Evidence Act. Counsel argued that the respondents did not prove that they were in exclusive possession of the land in dispute since the 9th P.W. called by them that is, Chief T. A. Lawal Akapo had admitted under cross-examination that a portion of the land in dispute was leased to the plaintiffs’/respondents’ family in 1925 by the colonial Government. Counsel relied on Ogundairo v. Okanlawon (1963) 1 All NLR 358; Faleye v. Otapo (1995) 3 NWLR (Pt. 381) 1 at 32 – 22; Uchendu v. Ogboni (1999) 4 S.C.1 (Part II) and Ekpo v. Ita 11NLR 68.

Now P.W.9 Chief Taoheed Akanni Lawai Akapo, the head of the Plaintiffs/Respondents’ family in the course of his testimony on 19-1-89 under cross-examination said:

“My ancestors had no palace in Orile Iganmu. They were using bamboo at the time to build houses. I do not know anything about shrine at Orile Iganmu. Our land was acquired by the government and they leased a portion of the land to my family at one shilling per year for 999 years. This is the document. Tendered, no objection, admitted and marked exhibit AA5. It is the land given to us by the government. The government did not acquire all the area of land to which we lay claim in 1925. They acquired a portion. I agree to what is in exhibit AA5. We lost a case against Sheteolu. We also lost against Gaskiya College because of laches.”

The above piece of evidence is what the appellants’ counsel has latched on to contend that the respondents did not show that they have been in exclusive possession of the land in dispute.

Appellants’ counsel in his submission referred to the evidence of the 5th Defence Witness Alhaji Tesilimi Aremu Hussain concerning the land acquired from the plaintiffs/respondents’ family by the government. At pages 97-98 of the record of appeal, 5th D.W. testified thus:

“The area verged Red in Exhibit A is the same with the one verged blue in Exhibit AA6. The area verged green in Exhibit AA6 is the original Ijora Settlement acquired by the government. After the acquisition the government gave the plaintiff another area of land within the area coloured Red in Exhibit AA6. The area given to them after the acquisition was not shown in Exhibit A. The land edged Red in Exhibit AA5 is the area coloured Red in Exhibit AA6 and that is the new Ijora Settlement. The area claimed by the plaintiff is marked blue in Exhibit AA6.

The area edged Red in Exhibit A is the same as the area marked blue in Exhibit AA6. The area coloured Red in Exhibit AA6 is within the area verged red in Exhibit A.

In 1958, the Western Region government acquired 5,000 acres of land and this is edged green in Exhibit AA6 (See Notes No.7) and it was published in Western Region Gazette No.28 Vol. 7, Page 223 of 24/4/58. What is edged green is just a portion of the 5,000 acres acquired by the government. After the Lagos State was created, the Western Region Government released part of the acquired land to the Lagos State Government. This falls within the area edged Red in Exhibit A. Lagos/Badagry Road goes across the Land in dispute. Apapa road was not shown in the plan Exhibit A but shown in my own plan exhibit AA6. I was not born in 1918 when Exhibit A was prepared.”

The trial court did not comment in its judgment on the evidence of D.W.5 but the court below at page 58 said:

“It is, therefore, not impossible the Ojora family continued notwithstanding the acquisitions, for inexplicable reason, to exercise their right over the land as customary overlord or landlord. There is nothing in exhibit AA5, AA6 and AA11 coupled with the testimony of the fourth defence witness which could inure to the first set of appellants, if it is remembered that appellants’ occupation, according to the respondents, is that of a customary tenant. The witness also did not touch upon exhibit AA11.

I agree it is puzzling for a person who claims exclusive title to a piece of land shown in exhibit A, and has been exercising right of ownership as per the 1918 survey plan, for 500 years would turn around in 1925 and take a lease of a portion of the land in exhibit A. I have said my bit on this part earlier in this judgment and do not propose to say anything further hence I be charged of speculating and am not given to speculation: or Orhue v. NEPA {l998} 5 SCNJ 128. There is, however, no evidence excluding the possibility of the colonial government providing the respondents with resettlement on their own land. The propriety of the respondents using the remaining land outside the portion given to them in 1925 or otherwise is not in issue in this appeal. It is also not open to the defendants to cry; it is for the acquiring authority to protest. This is because trespassers such as respondents, without so deciding, can maintain an action against the whole world including the appellants except the true owner. See Amakpor v. Obiefuna [1974] 1 All NLR (Pt. 1) 119, [1974] NMLR 331.”

The above views of the court below ought to be considered along with the findings of fact made by the trial court. At pages 228-230 of the record of proceedings the trial court said:

“The first set of defendants – 1st to 5th , 7th to 11th, 15th and 16th defendants forms the group that now describe itself as the ‘Iganmu Community’ and the ‘Ilupeju/Iganmu United Movement Group’ in recent documentation and correspondence which began to surface from about 1965 upwards. From these documents and the evidence of the 8th and 9th plaintiffs, witness, it is clear that the membership of this group consisted of the descendants of customary tenants who had been placed on the land by the Ojora Chieftaincy Family and who had paid tribute in the form of farm produce and later rent, as evidenced by the documentary records of the Ojora Chieftaincy Family dating back some 70 years or more. The documents are Exhibits E, F, F1, G, G1, G2, J, J1,H, HI, K, K1, L, L1, L2, M, N, N1, 0, P, Q, Z, ZI, Z2, AAl, AA@, AA3, AA4, AA7. All that the defendants have said in response to these Exhibits was that they knew nothing about them and their ancestors never told them about them. I accept the evidence of the 9th Plaintiffs’ Witness and other witnesses who belong to the families who were and are still tenants on the land that the Ojora Chieftaincy extracted farm produce from tenants until 1922 when they began to collect cash, and that they issued receipts to them and other tenants. The letter Exhibit 9 written in 1926 to the then Bale of Iganmu, a brother of the original 1st defendant is clear confirmation of the rights of ownership exercised by the Ojora over their lands.

Exhibits R and S, the Minutes of the meeting of the first set of defendants and their letter of apology to Chief Ojora made it abundantly clear that up till 1965 the Iganmu Community’ and the persons describing themselves by other names recognized the ownership rights of the Ojora Chieftaincy Family over Iganmu and recognized the right of Chief Ojora as the consenting authority whenever a Bale is to be chosen over any part of their lands including the land in dispute.

Exhibits R and S constitute a most damning combination of admissions of the overlordship and Ownership rights of the Ojora Chieftaincy Family or the Ojora lands at Iganmu. It is clear to me that the Ojora Chieftaincy has exercised ownership rights over the land in dispute from time immemorial. They were able to produce the supporting evidence of their boundary men in respect of the whole land. The defendants were not even able to suggest to these witnesses 1st Plaintiff Witness, 2nd Plaintiff Witness, 3rd plaintiff Witness, and 7th Plaintiff Witness – that their evidence was untruthful, much less produce evidence of boundary men of their own. It is of course literally true, that they called the 6th Defence Witness to say that the Animashaun families were their boundary men. As I said earlier on, I do not accept his evidence and I consider it a disaster for the defence.

Again, there was evidence of the Laniyonu Family asking for land from the plaintiffs again in recent times. (See Exhibits V and W) which confirms the evidence of the plaintiffs’ witnesses in relation not only to Laniyonu Village but in respect of other villages, that the Ojora Family were exercising acts of ownership over the lands in Iganmu.

It is apparent from the evidence, both oral and documentary, produced at the trial that many tenants of the Ojora Family whose ancestors and themselves had been acknowledged tenants of the plaintiff have, with the sudden economic and industrial development in the area, and the prospect of their making money for themselves, first as land agents of Chief Ojora, turned round (when this prospect vanished with the refusal of Chief Ojora) and claimed to be new land owners, and to deny the overlordship of Chief Ojora. They banded themselves together under a new banner and now claim ownership under the aegis of the family of Oke whom the Ojora sent to Iganmu to help collect rents (but not as Bale) after the passing of Osho Cole (Osho-Offin), the first Bale. That the Ojora refused to approve Gafaru Bello as the next Bale is confirmed by Exhibits R and S”

It is the contention of the appellants’ counsel that exhibits R and S referred to in the judgment of the trial court were not admissible.

I think that the 1st – 12th appellants have merely tried to make a mountain out of a mole hill concerning exhibits R and S. These were documentary evidence tendered by the plaintiffs/respondents to show that the 1st to 12th appellants had held a meeting with the plaintiffs/respondents’ family whereat they acknowledged the overlordship of the family over the

land in disputes. The minutes exhibit ‘R’ were not signed by the maker as they should be. Exhibit’S’ is a letter said to have been written by the 1st – 12th appellants to apologize over their attempt to appoint a Bale for Iganmu village without the concurrence of the plaintiffs/respondents’ family. I do not consider exhibits R and S inadmissible in evidence but being documents not bearing the signatures of the makers, they should attract little or no weight. In reacting to the argument of the 1st to 12th appellants before it, the court below at page 52 of the record observed:

“Exhibits R is the minutes of the meeting between the representatives of first set of appellants and the respondents at which the former requested for favours which tend to acknowledge the over-lordships right of the respondents over the land in dispute. And when they went behind the backs of the respondents to achieve their ambition the latter obstructed their plan to have one of their members appointed Baale of Orile Iganmu. Hence an exhibit S was written conveying the tenants’ apology to the respondents. Exhibits V and W are respectively minutes of meeting between Laniyonu family and the respondents whereby the Laniyonu family was seeking re-grant to them of pieces of land previously granted to their ancestor. It is settled that where there is oral and documentary evidence, documentary evidence should be used as a hanger from which to assess oral testimony. See Kimdy v. Military Gongola State (sic) (1988) 2 NWLR (Pt. 77) 445 and Fashanu v. Adekoya (1974) 6SC.83.”

I agree with the reasoning above of the court below. The 1st to 12th appellants have in my view deliberately overlooked the overwhelming evidence against them in support of the plaintiffs/respondents case. There was the evidence called by the plaintiffs/respondents of their boundary owners. There was the fact that the plan of the land in dispute tendered by the plaintiffs/respondent Exhibit’ A’ was made by Herbert Macaulay in 1918. There was the deed Exhibit AA5 which shows that in 1925, the colonial Government acquired a parcel of land from the plaintiffs/respondents which falls within the land depicted in exhibit’ A’. There was the fact that the 17th to 23rd defendants before the trial court agreed that the radical title in the land in dispute was vested in the plaintiffs/respondents’ family. The 17th to 23rd defendants unsuccessfully tried to show that the plaintiffs’ family sold the land to them. As to the tenancy of the 1st- 12th appellants, P.W.9 at pages 59-60 of the record testified thus

“Tokosi family were paying customary rent (Isakole) to my family from time to time. We even issued receipt to them. This is the receipt issued to them when payments are made. (tendered, objection raised by Mr. Dosunmu on the ground that the document is not pleaded. There is no notice to produce the original served on us. Mr. Sofola SAN also objects to the admissibility of the document. Mr. Adamu also objects to the admissibility on the grounds stated by the two counsel. Mrs. Okunola submits that she is tendering counterfoils and do not need to serve any notice to produce. I will however submit that the document be tendered for identification. Mr. Dosunmu objects to it being tendered for identification. Mr. Sofola associates himself with that objection and so is Mr. Adamu. Court: Tendered in and marked ‘Rejected’). Adisa Saidi’s father was a tenant on our land at Said Village. His father was paying customary rent (Isakole) to us. Receipts were issued to them after payments. The counterfoils are kept in our archives. These are the counterfoil receipts issued to them. Mr. Dosunmu objects to the document being tendered as t

was not pleaded. Mr. Sofola submits that he has no objection. Mr. Adamu has no objection. Tendered, marked Exhibits II & III. I know Daniel Savage. He is one of our tenants in Savage Village, Iganmu. I also know the 3rd and 4th defendants. They are descendants of Daniel Savage.

They are all tenants of my family and they were formerly paying Isakole (customary rent). From our archives, I got the counterfoils of the receipt issued to them. This is one of the counterfoils issued to them. Tendered, no objection, admitted and marked Exhibit J. This is also one of the counterfoil receipts. Tendered, no objection, admitted and marked Exhibit n. I also know Lawal. His father was a tenant on our land at Ajegbe Village. They paid rents to us and we keep the counterfoils after issuing receipts to them. This is one of the counterfoils. Tendered, no objection, admitted and marked Exhibit J2. I also know the 16th defendant Alhaji Nurudeen Tokosi (substituted for Nimota Bankole). His grandfather Pa Bankole was a tenant on our land known as Bankole Village (otherwise known as Iyalode). Both of them bought land from us for use. They were husband and wife and they got land from us. They were paying Isakole (customary rent) to our family. We issued receipts to them and we kept the counterfoils. Tendered, no objection, admitted and marked Exhbit K. This is also one of the counterfoils of the receipts issued to the father of the 5th defendant. The father was Lawani Ajagbe.

Tendered, no objection, submitted and admitted as Exhibit K1. I also know Tinubu Village. It is part of…..issued receipts to them. The counterfoils are kept by us. This is one of such counterfoils. Tendered, no objection, admitted and marked Exhibit L. This is also one of the counterfoils of the receipts issued to one of the descendants of Tokosi on our land. Tendered, no objection, admitted and marked Exhibit L1. This is one of the counterfoils of the receipts issued to Rufai Igboboji who is the father of the 15th defendant. Tendered, no objection, admitted and marked Exhibit L2. The land they got from us is at Abule Tapa (Tapa Village). I know the 11th defendant. His father was one of our tenants at Coker Village. The father’s name is Afidipote. The father was paying Isakole to us and when Isakole was abolished he was paying rent to us. This is the counterfoil of the receipt of the rent issued by my family to them. Tendered, no objection, admitted and marked Exhibit K1. This is also one of the counterfoils of the receipts issued to the father of Ganiyu Animashaun. Tendered, no objection, admitted and marked Exhibit N. I know Abu the father of the 2nd defendant. Yinusa Abu. He got land from us and was paying rent and receipts were issued to him. This is one of such receipt issued to him. I mean the counterfoil for the receipt. Tendered, no objection, admitted and marked Exhibit N1. He got land from us at Aloko Village. I also know Lawani Coker. He got land from us at Coker Village. He was paying rent and receipts were being issued to him after Isakole was abolished. This is the counterfoil of the receipt we gave him. Tendered, no objection, admitted and marked Exhibit O. I know Banjoko Oso Olodo. He is the father of Oso Longe. They took land from us at Oso Olodo Village. This is the counterfoil of the receipt issued by us to Banjoko Osho Olodo for rent paid to us by him for our land. Tendered, no objection, admitted and marked Exhibit P. I also know Alaba Cole. He is the father of Oso Cole. They took land from us and were paying us rent after the abolition of Isakole. This is the counterfoil of the receipt issued by us to Aloba Osunofin. Tendered, no objection, admitted and marked Exhibit OQ. I am able to identify the villages on Exhibit A, showing the villages on our land, (Exhibit A shown to the witness and he mentioned the villages.) I can see Tapa Village, Aloko Village, Oshunofm Village, Tokosi Village, Orile Iganmu, Coker Village, Tinubu Village. All these villages are part of the land in dispute and they form part of our land. There is no Bale of Orile Iganmu now. The first Bale was Osho Cole. After Osho Cole was Bello. After Bello was Abudu Bello. My family has to approve the appointment of the Bale and we are the competent authority. The Bale represents Chief Ojora in the village and collects rents from the tenants and pay it to me. During the time of Isakole he does the same thing.”

It ought to be borne in mind that the plaintiffs/respondents’ case was that the 1st to 12th appellants were their customary tenants. The finding of the trial court which was affirmed by the court below was that the 1st to 12th appellants were the customary tenants of the Plaintiffs/respondents. There was adequate evidence on record to support these finding and these being concurrent findings on an issue of fact, this Court will not interfere. In Kale v. Coker [1982] 12 SC.255 at 271, this Court per Obaseki JSC observed: “This Court will not in the absence of special circumstances indicating obvious errors in the concurrent finding of fact by two lower courts allow the question of fact to be re-opened. See Mogo Chinwendu v. Nwanegbo Mbamali & Anor (1980) 3-4 SC. 31 at 75.

Lamai v. Orbih (1980) 5-7 SC.27

Ikpe Ibodo v. Enarofia & Ors. (1980) 5 SC.42 at 4.

Victor Woluchem v. Simon Gudi (1981) 5 Sc. 319 at 326-330.

The appellant has failed to show any special circumstances which establish that it is in the interest of justice to reopen the question. The Supreme Court has repeatedly pointed out that it will interfere only where not to do so will occasion a substantial miscarriage of justice. BarcAkpere v. lays Bank of Nigeria Ltd. & Anor. (1977) 1 S.C.1. The appellant has failed to satisfy me that there has been a miscarriage of justice in this case.”

There was the appellants’ argument that the colonial government acquired from the plaintiffs/respondents’ family a potion of the land in dispute as depicted on Exhibit ‘A’. In Dada v. Ogunremi [1967] NMLR 181, this Court per Coker JSC held that in a claim for declaration of title, where there is evidence before the trial court that the ownership of the land in dispute is in another person who is not a party to the proceedings, the court would refuse to grant a declaration of title. But in this case we have a situation where the evidence accepted by the court indicates that the land in dispute was granted to the 1st to 12th appellants as customary tenants. It is therefore not open to the appellants to argue that the ownership of the land granted to them by the plaintiffs/respondents was in another party not before the court, since the trial court had found that they were customary tenants to the plaintiffs/respondents. That would amount to granting them the license to deny their grantors’ title. They did not derive their possessory rights from the colonial government or any other government. In Anukanti v. Ekwonyease [1978] 1 SC37, this Court held that where a party obtains possession of land from one person, he could not rely on title vested in another to defeat through a plea of jus tertii his grantor’s title. Indeed the argument of the appellants that the land was acquired from the plaintiffs/respondents in 1925 only reinforces the ownership of the plaintiffs/respondents because if the land indeed belongs to the appellants as they contend why did the colonial government acquire the land from the plaintiffs/respondents and not the appellants and why did the appellants not challenge the grant of the land back to the plaintiffs/respondents on tenancy terms. It is my firm view that the appeal of the appellants before the court below was rightly dismissed by that court. On the facts accepted by the two courts below, there could have been no other course open to them other than to uphold the case of the plaintiffs/respondents.

The issues raised by the 13th appellant will be considered together. I observed earlier in the judgment that the 13th appellant pleaded that the land in dispute had belonged to his ancestor Yesufu Adeosi. It was pleaded that Yesufu Adeosi’s ancestors settled in Iganmu at a time when the place was a jungle with no sign of habitation. But there was the evidence which the trial court accepted that the 13th appellant was a member of the group created by all the customary tenants of the plaintiffs/respondents solely for the purpose of revolting against the plaintiffs/respondents by denying the title through which they and their ancestors came on the land. At page 233-234 of the record, the trial court said concerning the 13th appellant:

“Although the 24th defendant has pleaded and told a story different from that of the 1st to 5th, 7th to 11th, 15th and 16th defendants about how his ancestors first settled on the land in dispute, the oral evidence given on behalf of the plaintiffs as well as the documentary evidence show beyond doubt that the original 17th defendant, Tesilimi Adewusi, a descendant of Yesufu Adewusi was not only an ordinary customary tenant of the Ojora Chieftaincy Family like the other defendants, he also joined those defendants in the concerted rebellion of the Ojora tenants by becoming active member of the so called Iganmu Community and the Ilupeju/Iganmu United Movement Group. Exhibits R and S, minutes of the meeting of, and a copy of a letter by this group of new land adventurers at Iganmu have betrayed them as self-confessed tenants of Chief Ojora.

The case of the 24th defendant on the evidence was that his ancestor Adewunmi founded Orile Iganmu. He was the grand-father of Yesufu Adewusi who was born on the land and who settled on it and farmed it alone with two other parcels of land he had acquired at Iguru and Tanmeda. He has since surveyed the land and conveyed it to a company named Laguda Adeosi Housing Estate. The Deed of Conveyance is Exhibit AAS. He claims that his family had, as an act of compassion allotted various portions of the land to Sierra Leonian returnees who have settled thereon and these are now the villages known as Coker, Tapa, Takosi, Sabisi, Osho-Offin, Osho Olodo an Laniyonu Villages. When he was asked how his grandfather inherited the land, he answered that his grandfather had settled on the land when no one was there. This piece of evidence was inconsistent will his pleading that his grandfather had inherited the land from his ancestors.”

The court below, considering the case made by the 13th appellant before the trial court said-

“It is manifestly clear that the 24th defendant, now 13th appellant, while supporting the case of seventh defendant clandestinely brought an action openly seeking a claim of title for the same land and for the family of Yesufu Adeosi. It, therefore, seems to me that there is substance in the submission of Chief Ajayi, SAN that, as Tesilimi Adewusi was an active member of the Ilupeju/Iganmu United Movement, whose activities were referred to in the meetings with Chief Ojora in exhibits R and S their acceptance of overlordship of Chief Ojora was also evidence against 13th appellant, who had closely identified himself with actions of Tesilimi Adewusi, whose interest in the land the 13th appellant admitted as the same as his own. Consequently the finding of the learned trial judge that Tesilimi Adewusi and the other persons represented by the

first set of appellants were customary tenants of the Ojora family was equally a finding against the 13th defendants appellants who admitted attendance of meeting of the group as well as an identity of interest will the original seventh defendant. Twenty-fourth defendant admitted that seventh defendant was consulting him as the head of the family and that he once attended their meeting. A statement oral or written made by a party to civil proceedings and which statement is adverse to his case or interest is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement.

See Seisemograph Service Nigeria Ltd. V. Chief Keke Ogbenekwe Eyaufe (1976) 9-10 SC 135, 146; (1976) F.NR. 162 and Madumure v. Okafor (1996) 3-4 MAC 165.”

I am in agreement with the findings of the two courts below that the 13th appellant was acting in league with 1st to 12th appellants and had merely come into the proceedings to make a case different from the 1st – 12th appellants by way of a hedge in the hope that one of the two would succeed.

I have no reason to interfere with the concurrent findings of the two courts below.

The 13th appellant’s counsel has argued that the plaintiffs/respondents did not plead their traditional history in their Amended Statement of Claim. It seems to me that the 13th appellant’s counsel did not advert his mind to the state of the law as to the ways in which the ownership of land may be proved. In Piaro v. Tenalo [1976) 12 SC31 at 40-41, this court per Obaseki Ag. JSc. observed:

“It is now settled law that there are 5 ways in which ownership of land may be proved and only two of the 5 methods were adopted by the respondents in this case. They are:

1. Proof by traditional evidence. (Abinabina v. Chief Enyimadu (1953) A.C 207 at 215-216); and
2. Proof of acts of ownership. This is normally provided by acts of person or persons claiming the land such as selling, leasing, renting out all or part of the land or farming on it or on a portion of it or otherwise utilizing the land beneficially; all evidence of ownership provided they extended over a sufficient length of time and are numerous and positive enough to warrant the inference that he is the true owner Ekpo v. Ita 11 N.L.R. 68 at 69”

Similarly in Ishola v. Abake (1972) 5 S.C 321 at 329-330, Ademola C.J.N. discussing long possession as a basis of ownership of land said:

“…There is ample evidence of long possession and acts of ownership by the plaintiff and his ancestors before him extending over a sufficient length of time numerous and positive enough to warrant the inference that they (plaintiff and his ancestors) were exclusive owners of the land in dispute to bring the case within the principles laid down in Ekpo v.Ita II NL.R. 68. On this point we are of the opinion that the learned judge had enough facts before him to come to the conclusion that the plaintiff had established his title to the land in dispute.”

See also Idundun v. Okumagba (1976) 9-10 SC.227.

All the appellants made a great play out of the fact that part of the land of the plaintiffs/respondents as depicted in exhibit A (made in 1918) had been acquired by the colonial government vide exhibit AA5. Even on that supposition, the plaintiffs/respondents case is further strengthened because this shows that the land contiguous to the land in dispute has been shown to belong to the plaintiffs/respondents. In Kaiyaoja v. Egunla (1974) 12 S.C. 55, Ibekwe J.S.C. at page 63 said:

“It has been held that, in a claim for the ownership of land, the fact that the land in dispute is contiguous with other lands belonging to the plaintiff is enough to raise a probability (though not presumptuous that the land in dispute also belongs to the plaintiffs.”

Lastly is the contention of the 13th appellant that his counter-claim for declaration of title was wrongly dismissed. This contention in my view is patently unsupportable having regard to the fact that the 13 appellant admitted before the trial court that his family had transferred its interest in the land to a limited liability company which was not a party to this proceedings. At pages 232 – 233 of the record, the trail judge said concerning the 24th defendant now the 13th appellant:

“In paragraph 31 of the 2nd Further Amended Statement of Defence, the 24th defendant averred as follows:

‘In furtherance of the wishes expressed by the testator Yesufu Adeosi in his foresaid Will, the beneficiaries have taken steps to constitute themselves into the limited liability company known as Laguda-Adewusi Housing Estate Ltd. charged with the responsibility of the development of the property into a Housing Estate.’

The 24th defendant in his evidence on the 17th of January 1997 said as follows:

‘We got a conveyance to transfer the land to Laguda Adewusi Housing Estate.’

He produced the said Deed of Conveyance in evidence as Exhibit AAO. Exhibit AA9 is a Deed

executed on 25th November 1976 by the 224th defendant and five others in favour of Laguda Adewusi Housing Estate Ltd. in respect of land at 19anmu, Tanmeda, Oguru and Aguda. Having pleaded and proved that the family of the 24th defendant has divested itself of its beneficial interest in the property it is claiming in this action, can the court now grant him a declaration of title in respect of the same The 24th defendant having on his own pleadings and evidence asserted that his family have disposed of their interest in the land in dispute to third parties by virtue of a Deed of Conveyance, it becomes clear that the 24th defendant is in any case, no longer the owner of the land in dispute, even if it belonged to him. My humble view is that this court cannot therefore grant the defendant a declaration that he is owner of the same land.”

It seems to me that there existed no basis upon which the two courts below could have granted the counter-claim of the 13th appellant when on the plethora of evidence before the trial court, the ownership of the land was vested in the plaintiffs/respondents, and when in any case, the 13th appellant having admitted that the land had been conveyed by his family to a limited liability company had no further interest in the land to protect.

I am satisfied that these appeals by the 1st – 12th and 13th appellants have no merit. They were rightly dismissed by the courts below. I also dismiss them with N50,000.00 costs against each set of appellants in favour of the plaintiffs/respondents.

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SC.54/2005

Mini Lodge Limited & Anor V. Chief Oluka Olaka Ngei & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

This is an appeal against the judgment of the Port Harcourt Division of the Court of Appeal on the 12th of April, 2006.The original action itself was initiated at the Port Harcourt Division of the High Court of Rivers State by a writ of summons issued in April 1992. The Plaintiffs were the Appellant/Cross-Respondents at the court below and are the Appellants in this Court. The Defendants were the Respondents/Cross Appellants at the Court below and are the Respondents herein. I shall herein after in this judgment simply refer to the Plaintiffs as Appellants and the Defendants as Respondents. Both the writ of summons and the Statement of Claim were amended. In the amended writ of summons a claim for N2 million naira for breach of contract was added to relief No. 4. In the amended claim which is reproduced in paragraph 18 of the Amended Statement of Claim the Appellants claimed against the Respondents jointly and severally as follows;

1. A declaration that the purported sale of Plot 136 Borokiri Layout otherwise known as No. 4 Etche Street Borokiri, Port-Harcourt within the jurisdiction of the Honourable Court by the 1st Defendant to the 2nd Defendant is illegal, null and void.
2. A declaration that the Plaintiff is entitled to the Right of Occupancy of the said property.
3. An Order of Specific Performance against the 1st Defendant to perfect the title of the 1st Plaintiff by executing the necessary Deed of Assignment.
4. In the alternative, the sum of N70,145.85 (Seventy thousand, one hundred and forty-five naira, eighty-give kobo) being money paid to the 1st Defendant by the Plaintiffs and the Plaintiffs also claim the sum of N2 million representing general damages for breach of contract against the 1st defendant for failure to perfect the sale of plot 126 Borokiri Layout to the Plaintiffs.
5. The sum of N100,000.00 (One hundred thousand naira) being damages for trespass against the 2nd defendants in that on the 30th September, 1988 the 2nd defendant without leave or license broke into the premises aforesaid and caused extensive damages to the plaintiffs property. `
6. A perpetual injunction restraining the Defendants and each of them by themselves, servants or agents from further interference with the possession of the Plaintiffs.

In their counter-claim the Defendants/Respondents sought against the Plaintiffs/Appellants jointly and severally as follows:

A. To 1st Defendant

i) The sum of N91,538.53 made up as follows:

(a) Arrears of rent N87,000.00

(b) Unrefunded Guarantee N 4,538.53

N91,538.53

ii) 25% interest per annum on N91,538.53 with effect from 1st of January, 1984 until judgment.

B) To 2nd Defendant

i) A Declaration that the Plaintiffs have no interest in No.4 Etche Street Borokiri, Port-Harcourt whether legal or equitable and that the assignment the said property by the 1st Defendant to the 2nd Defendant was legally valid and proper.

ii) The sum of N70,000.00 per annum with effect from 1st November, 1988 being annual valid of the property held over by the Plaintiffs.

iii) 25% interest per annum on the sum accruable from B(ii) above.

iv) Vacant possession of the property in dispute (that is No. 4 Etche Street Borokiri, Port-Harcourt) on grounds of (i) Plaintiffs refusal to recognize 2nd Defendant as their landlord making them to be bad tenants (2) refusal to pay rent and (3) setting up a claim of ownership adverse landlord and tenant relationship making it unsafe for the 1st Defendant to vist and view the state of repairs of the property.

The Defendants are entitled to earn interest of 25% per annum or at current bank rate as the Plaintiffs are doing business with their money kept by the Plaintiffs to the economic disadvantages of the Defendants.

The matter proceeded to trial. The 2nd Plaintiff Prince Benjamin Mabadeje was the sole witness for the Plaintiffs/Appellants. The two defendants, Chief Oluka Ngei, Chief Donald Diboye-Suku and two others testified for the defence and counter-claim.

In its judgment on the 14/7/2000 the trial Court dismissed the Plaintiff/Appellants’ claim in its entirety. The Court however granted reliefs (i) and (iv) of the counter-claim to the effect that the Plaintiffs have no interest whether legal or equitable in the property in dispute and that the 2nd Defendant was entitled to vacant possession of same. Reliefs (ii) and (iii) of the counter-claim were dismissed. The Plaintiffs were aggrieved by the judgment and proceeded on appeal to the Court below. The Defendants/Respondents were also not satisfied with the trial court’s dismissed of reliefs (ii) and (iii) of the counter-claim and thus filed a cross-appeal to the Court below. Briefs were filed and exchanged in the substantive appeal. With respect to the Cross-Appeal the Defendant/Cross-Appellants filed their Cross-Appellants Brief. The Plaintiffs/Cross-Respondents did not file a Cross-Respondents’ Brief. By the operation of order 6 Rule 10 of the Court of Appeal Rules the Plaintiffs/Cross-Respondents were not heard in oral argument on the Cross-Appeal.

In its judgment on the 12th of April, 2006 the main appeal was dismissed for lack of merit. The cross-appeal was however allowed and judgment was accordingly entered for the Defendants/Cross-Appellants in terms of paragraph 14A(i) and (ii) and B(ii) and (iii).

The Plaintiffs were still not still not satisfied and have come on further appeal to this Court. Brief was prepared by Eberechi Adele Esq. and same dated 22nd of November, 2006 was filed on the 3rd of April, 2007 but deemed filed on the 14th of January 2008. The Respondents’ Brief is dated the 14th of January 2008 and filed the same day.

The Appellants formulated two issues for determination and which issues were adopted by the Respondents. The issues are:-

1. Whether the Court of Appeal was wrong in affirming the trial Court’s verdict that the Appellants did not have a valid interest in the property vis-a-vis the assignment by the 1st Respondent to the 2nd Respondent.
2. Whether the refusal by the Court of Appeal to entertain the Appellant’s motion for extension of time to file the Appellants’ Reply Brief is a denial of fair hearing.

The substance of the arguments of Eberechi Adele for the Appellants is as follows: Learned counsel referred to the observations of the trial Court at page 186 lines 23 – 33 of the record to the effect that there was an agreement by the 1st Defendant to sell the property to the Plaintiffs and which agreement gave birth to Exhibits “F” and “G” 1979 and submitted that in the face of the finding thereat the conclusion at pages 190-187 that there was no agreement to sell the property is a contradiction and therefore perverse. He placed reliance on a number of cases namely OGOLOGO v. UCHE (2005) All FWLR Part 281 1679, LONGJOHN v. BLACK (2005) ALL FWLR Part 289 1219; MACAULAY v. TUKURU (1881 – 1911) 2 NLR 36; AKINLOYE v. EYIYOLA (1968) NMLR 92; OBISANYA v. NWOKE (1974) 6 SC 69, WOLUCHEM v. GUDI (191) 5 SC 291 and OBODO v. EGBA (1987) 1 NSCC Vol. 28 416.

It was counsel’s further submission that Exhibits’ “H” and “L” in no way nullified the sales agreement in Exhibit “F” and confirmed in Exhibit “G”: contending that the intention of the contracting parties should be that expressed in the contract itself and not from extraneous sources. He relied on ARJAY LTD. V. AIRLINE MANAGEMENT SUPPORT LTD (2003) 7 NWLR (Part 820) 577 at 634. Learned counsel argued that the 1st Defendant/Respondent was manifestly unreliable and his evidence deserved no credibility. In support of this submission learned counsel referred to the fact that although the 1st Defendant/Respondent denied knowledge of the Plaintiffs/Appellants use of the property as a hotel, it was established “C” that he knew the fact and even gave out his title documents as collateral for a loan for the expansion of the hotel Counsel also referred to the 1st Defendant/Respondent’s sale of the property to Mr. Aley and his ultimate refusal to convey same to him. It was learned counsel’s submission therefore that the concurrent findings of the two courts below have no foundation and urged this Court to re-evaluate the evidence and set aside the said findings. He relied on ADEMULOLA v. STATE (1988) 1 NWLR (Part 73) 683 at 690 and ONWUGBUFOR v. OKOYE (1976) 1 NWLR (Part 424) 252. According to learned counsel, the concurrent findings are against the logical drift of the evidence.

On the second issue it was the submission of counsel for the Appellants that the refusal of the Court of Appeal to hear the motion for extension of time to file the Appellants’ Reply Brief constituted a denial of fair hearing and that the refusal occasioned a miscarriage of justice. In support of this submission learned counsel relied on OKONKWO v. OKONKWO (1998) 10 NWLR (Part 571) 136; NWOKORO v. ONUMA (1990) 3 NWLR (Part 136) 22; TUNBI v. OBAWOLE (2000) 2 NWLR (Part 644) 275 and AFRO-CONTINENTAL LTD. v. CO-OPERATIVE ASSOCIATION OF PROFESSIONAL INC. (2003) 5 NWLR (Part 818) 303 at 317 – 318. He urged that the appeal be allowed.

In the Respondents’ Brief Faye Dikio Esq. proffered the following arguments. On the first issue learned counsel referred to the Statement of Claim filed on the 12th of July 1993 and wondered why they failed to plead the Deed of Assignment purportedly executed by the 1st Respondent in their favour as far back as 10th May 1979 until same was pleaded in paragraph 3 of their Defence to Counter-Claim in 1995. With respect to the alleged finding of the trial Court at page 186 of the record and its conclusion at pages 196 – 197 counsel argued that the s were misconstrued by the Appellants.

It was further argued by learned counsel for the Respondents that counsel for the Appellants completely misconstrued the contents of Exhibits “E” “G” “H” and “L”. It was his further contention that there is abundant oral and documentary evidence that clearly contradicted the appellants’ assertion about the contents and purport of Exhibits “F” and “G”. The documentary evidence according to counsel include Exhibits “H” “L” “B” “D2” “M” M1″ “N” “O” “R” and Z1″. Then at pages 7 – 10 learned counsel for the Respondents was at pains to analyze these documents to demonstrate that there never existed any contractual relationship between the Appellants and 1st Respondents to be “sealed” and that the only relationship between them was that of landlord and tenant. Learned counsel contended that the findings and conclusions of the two courts below were abundantly supported by the evidence and therefore that there was no basis whatsoever for any interference. He relied on NZEKWU v. NZEKWU (1989) 2 NWLR (Part 104) 373 at 393; AKINLOYE v. EYILOLA (1968) NMLR 92 at 95; OGUMDULU v. PHILLIPS (1973) 2 SC 71 at 80; OKAFOR v. IDIGO (1984) 1 SC NLR 481 at 499 and ONWAN v. ISERHIEN (1976) 9 – 10 SC 95 at 99. It was counsel’s further submission that from the weight of documentary evidence, the Appellants’ case is weak and failed to meet the standard of proof required. Conversely, the Respondent’s case on the Counter-Claim is strong and remains uncontroverted and urged therefore that the first issue be resolved in favour of the Respondents.

With respect to the 2nd issue learned counsel for the Respondents pointed out that the motion in question was filed on the 17/1/06 but that it does not form part of the record. He referred however, to paragraph 10 of the affidavit in support of the motion for extension of time to file Reply Brief wherein it was disposed that the Reply Brief was the Appellant’s answer to the Cross-Appeal and the Reply Brief itself at pages 258 – 261 of the record and argued that the purported Reply Brief was in fact and indeed the Appellants’ Response to the Cross-Appeal. Learned counsel pointed out the main argument in the Reply Brief to the effect that the trial court was right in dismissing reliefs (ii) and (iii) of the counter-claim because there was no demand for rent and possession and argued that demands for rent and possession were pleaded and evidence in respect thereof adduced through Exhibits “K” “N” “S” “I” and Suit No. PRT/857/91 at the Rent Tribunal. He contended further that the Reply Brief has nothing to change the judgments of the two lower courts and also that the failure to consider it did not occasion any miscarriage of justice. In support of these submissions he relied on OKEOWO v. MIGLIORE (1979) NSCC 210 at 239 and NADER v. CUSTOMS AND EXCISE (1965) ANLR 33 at 37. He urged in conclusion that the appeal be dismissed.

I shall now proceed to deliberate on the two issues in this appeal. The first issue turns on the question of evaluation. The settled principle of law is that it is the trial court which alone has the primary function of fully considering the totality of evidence placed before it, ascribe probative value to it. Put same on the imaginary scale of justice to determine the party in whose favour the balance tilts, make the necessary findings of facts flowing therefrom, apply the relevant law to the findings and come to the logical conclusion. The evaluation of evidence remains the exclusive preserve of the trial Court because of the its singular opportunity of hearing and watching the demeanour of witnesses as they testify and thus the court best suited to assess their credibility of a witness an appellate court would not ordinarily interfere.

Where however the nature of the case is such that the evaluation would not entail the assessment of credibility of witnesses and would be confined to drawing inferences and making findings from admitted and proved facts and from the contents of documentary evidence, the appellate court is in as vantage a position as the trial court to evaluate or re-evaluate the evidence and make its own findings. These principles have been applied in a number of cases amongst which are WOLUCHEM v. GUDI (1981) 5 SC 291; MOGAJI v. ODOFIN (1978) 4 SC 91; DURU v. NWOSU (1989) 4 NWLR (Part 113) 24; OLADEHIN v. CONTINENTAL ILE MILLS LTD. (1978) 2 SC 28; CHUKWU v. NNEJI (1990) 6 NWLR (Part 156) 363; AKINTOLA v. BALOGUN (2000) 1 NWLR (Part 642) 532 at 546.

I have gone through the evidence of the witnesses on record and the judgment of the trial Court and I am firmly of the view that there was no issue of the trial court’s assessment of the credibility of witnesses. The result is that this Court, like the court below, is in as good a position as the trial court to appraise or re-appraise the evidence on record to see if the concurrent findings of the two courts below are not perverse. With respect to the evidence itself, there is a lot of oral as well as documentary evidence. I am however of the view that the issues raised would be resolved mainly by the documentary evidence. I am guided in this view by the settled principle of law that oral evidence is only to be hangars on for documentary evidence.

Firstly at page 3 paragraph 3.3 of the Appellants’ Brief, learned counsel for the Appellants reproduced the observation of the trial court of page 186 of the record which states:-

“It must also be noted that in the application for loan from Plaintiffs’ Bank for N100,000.00 to purchase the property, the title documents of the property were to be used as collateral. This application was dated 4th October, 1887 and it is Exhibit ‘C’. If there had been no agreement to sell the property to the Plaintiffs, 1st Defendant would not have agreed to the title document of the property being used as collateral. It does appear that in 1977 there was an agreement to sell the property to the Plaintiffs which said agreement gave birth to Exhibits “F” and “G” in 1979. In other words by 1979 the sale of the property to the Plaintiffs had been completed.”

It was his contention that in view of the foregoing observations it was inconceivable for the trial court to arrive at the opposite conclusion in the judgment. I agree with learned counsel that in the course of the summary of the evidence, the learned trial judge made observations as if they were findings. It is settled principle of law that the summary of the evidence led by the parties or re-statement of the evidence does not constitute evaluation. See UWEGBA v. A.G. BENDEL STATE (1986) 1 NWLR (Part 16) 303; IMAN v. OKOGBE (1993) 9 NWLR (Part 316) 159 at 177. In this case a careful reading of the judgment of the learned trial judge shows that the actual evaluation of the evidence started from page 195 lines 11 to the end of the judgment at page 199. It is from page 195 that the court formulated four issues for determination and then set out to resolve the issues one after the other.

The first issue he formulated was whether there was any contract of the sale of the property in dispute between the Plaintiffs and the 1st Defendant to entitle the Plaintiffs to the remedy of specific performance. In his evaluation and resolution of this issue the learned trial judge had this to say:-

“By Exhibits “F” and “G” the property was purportedly sold to the Plaintiffs by the 1st Defendant in 1979. By Exhibits “C” an application was made to the International Bank for West Africa Ltd for N100,000.00 in loan to purchase the property using the title Deed of the property as collateral. These three Exhibits appeared to have sealed the contract of sale.

However, by the pleadings and evidence Plaintiffs are still talking about payments of rents when they purported to have bought the property in 1979. By Exhibit “H” tendered by the 1st Defendant and which was written by the 2nd Plaintiff and dated 14th January 1985 the Plaintiffs gave statement of affairs regarding rents so far paid in respect of the property. The said Exhibit “H” made no reference to any sale or agreement to sell, rather it talked about rents so far paid simpliciter. It did not even say that the rents were for part payment of the purchase price for the property.

Again in Exhibit “L” the 2nd Plaintiff stated that since 1st Defendant had sold to Mr. Atey, he the first Defendant was no longer entitled to rent in respect of the property. If Plaintiffs had actually bought the property in 1979 as per Exhibit “F” and “G” why must they still be talking about payments of rent even in 1988.

By paragraph 9 of the said Exhibit “L” written on 29th August 1985 Plaintiffs offered to buy the property if the 1st “Defendant was still desirous to sell since Mr. Atey could not pay the balance of the purchase price and that the sum of N28,269.60 being held by the 1st Defendant as various sum of money collected from Plaintiffs could stand as deposit against the purchase price. It is very highly preposterous for the Plaintiffs in 1988 to be making an offer for purchase when by Exhibits “C”, “F” ad “G” they claimed they had bought the property in 1979. It is also preposterous for the Plaintiffs to be continuing talking about rents when he claimed that he had bought the property. Exhibits “H” and “L” aforesaid made by the Plaintiffs are totally at variance with Exhibits “F” and “G”. No reason for this variance in the documentary evidence by the Plaintiffs.

In law it is not the duty of the Court to pick and choose which evidence to believe. The above documents clearly showed Plaintiffs conflicts of interest in the property and the court cannot judiciously and judicially hold that there was a contract of sale and there was actual sale. By this variance in the evidence coupled with 1st Defendant’s denial that he never entered into any agreement to sell the property and Plaintiffs never bought…” (See page 196 – 197 of the record).

In its judgment the Court of Appeal reproduced the foregoing reasoning and conclusions of the trial court and held that it was unassailable. At pages 282-283 of the record the Court per M.D. Muhammed, JCA stated:-

“The foregoing summation by the lower court is unassailable. Indeed as the court concluded further in its judgment, in law it is not the duty of a court of law to pick and choose which evidence out of the lot advanced by a party to prove an only case. See ONUBOGU v. STATE (1974) 9 NSCC 358. Where a party in a case has tendered a document in proof of his case and the contents of the document is inconsistent with the contents of another documents equally tendered in proof of the same facts and the inconsistency remains unexplained, the court should, as was done by the court below, regard the contents of the two documents as evidence that is far from being reliable. In the instant case the lower court rightly found that Exhibits “H” and “L” totally are at variance with Exhibits “F” and “G”. All the documents were tendered in proof of specific paragraphs in the Appellants’ Statement of Claim to the effect that 1st Respondent herein had assigned the property in question to the Appellants. A decision not to rely and act on any of the documents is not only logical but a necessity occasioned by the uncertainty as to what version the court would choose and believe out of the two.”

Are the foregoing views and findings of the Court of Appeal correct As I said earlier in this judgment, I have thoroughly examined the pleadings of the parties, the evidence in support thereof and the judgment of the trial court. There is no doubt, that in its judgment the trial court thoroughly and meticulously examined the totality of evidence placed before it and made findings which are amply supported by the mass of oral and documentary evidence. The judgment of the trial court cannot be faulted in any way. It is not surprising therefore that the Court of Appeal endorsed the findings and decision of the trial Court. On the first issue therefore, I hold, in conclusion that, the Court of Appeal was right in affirming the trial court’s verdict that the Appellants did not have a valid interest in the property vis-a-vis the assignment by the 1st Respondent to the 2nd Respondent. The result is that I resolve the first and main Issue in favour of the Respondents and which therefore substantially disposes of the appeal.

However before going to the conclusion I would like to comment on two aspects of the case which tend to expose the absolute bad faith of the Appellants and the falsity of their case. The two aspects both relate to and emanate from the reliefs they claimed in their amended writ of summons, the amended, statement of claim and their Defence to counterclaim. With respect to the property in dispute their case as pleaded in the amended statement of claim was that they had acquired an equitable interest in the property in that they had part-purchased it from the 1st Respondent. This fact of the part-purchase and thus equitable interest were pleaded in paragraphs 12, 13 and 15 of the amended statement of claim at pages 40-42 of the record. In paragraph 15(c) thereof they specifically pleaded.

”That before the purported sale to the 2nd Defendant, the Plaintiffs had already acquired all equitable interest by paying a substantial part of the purchase price.”

No mention was made of any Deed of Assignment by the 1st Defendant/Respondent to the Plaintiffs/Appellants. However in their Defence to Counter-Claim they now pleaded their purported Deed of Assignment. In paragraph 3 thereof they pleaded:

“By a Deed of Assignment made on the 10th day of May 1979 the)” Defendant/Respondent erred ownership of the building in dispute to the 2nd Plaintiffs.”

Thus while in their amended statement of claim they claimed to have had an equitable interest in the property through part-purchase, in their Defence to counter-claim they claimed absolute title over the self-same property through a Deed of Assignment. In my view these divergent claims establish the manifest falsity of the Appellants’ case even before it was tried.

The second aspect of the Appellants’ case is even more devastating to their cause. In relief three of the Amended Statement of Claim, they claimed “an order of specific performance against the 1st Defendant to perfect the title of the 1st Plaintiff by executing the necessary Deed of Assignment”. And in the fourth relief, they claimed “the sum of N2 million representing general damages for breach of contract against the 1st Defendant for failure to perfect the sale of Plot 136 Borokiri Layout to the Plaintiffs.” The implication of these claims is that at the time .this action was initiated in 1992 and up to the time the Amended Statement of Claim was filed in February 1995 no Deed of Assignment had been executed by the 1st Defendant/Respondent in favour of the Plaintiffs/Appellants. In other words in 1992 when this action was commenced and up to the time the Amended Statement of Claim was filed in 1995 there could not have been and indeed no Deed of Assignment Exhibit “G” in existence.

Reliefs 3 and 4 are therefore m direct conflict with the case subsequently put forth by the Appellants in Exhibit “G” which signature’ was however established to be a mere fi’ee hand simulated forgery of the 1st Respondent’s authentic model signature. The whole case of the Appellants was founded on falsehood and fabrication and was therefore rightly dismissed by the trial Court and which dismissal was rightly affirmed by the Court below.

With respect to the 2nd issue it is perhaps necessary to start by reexamining the reasoning of the trial court in dismissing the claims in reliefs B(ii) and (iii) of the Counter-Claim. In relief B(ii) the Respondents claimed the sum of N70,000.00 per annum with effect from the 1st of November 1988. The sum represents the annual value of the property held over by the Appellants. And in relief B(iii) they claimed 25% per annum on the sum accruable from B(ii). The trial Court dismissed these heads of claim and its reasons for doing so are contained in page 198 lines 12-25 of the record. Therein the trial court reasoned that since the Appellants were in physical possession of the property before the 1st Respondent’s sale of same to the 2nd Respondent and the 1st. Respondent failed to recover possession and put 2nd Respondent into possession and also having regard to the fact that he failed to demand for rents from the Appellants the 2nd Respondent was not entitled to the two reliefs claimed.

As I said earlier in the opening paragraphs of this judgment the Respondents were aggrieved by the dismissal of the two heads of the counter-claim and cross-appealed to the Court below. In allowing the cross-appeal the Court of Appeal reasoned at 286 of the record as follows:-

“I agree with learned counsel to the cross-appellants that the lower court’s reasons regarding respondents’ counter-claim are contrary to the available evidence and established legal principles. By the relevant paragraphs of their pleadings, and Exhibits “K” “N” “B” “M” “MI” “Y” and “ZI” in proof of the paragraphs, respondents have not only claimed but proved their claim in respect of rent arrears and such other relief that draws from appellants continued use of a property which the lower correctly found to have been validly assigned by 1st Respondent to the 2nd Respondent. I so hold.”

The Appellants’ Reply Brief which they sought to use is at pages 259-261 of the record. The main argument relevant is at page 259 of the record and it runs thus:

“It is submitted that the counter-claim for arrears of rent was a mere after thought. The pleadings and evidence showed that for the many years that the Plaintiffs/Appellants were in occupation of the disputed property, the 1st Defendant who was the original owner never made any serious claim for rents or even possession of the property. And he could not do so for the simple reason that he had already sold the property to the Appellants”

There is no substance in this argument. I have already endorsed the concurrent finding of the two courts below that there was no sale of the property by the 1st Respondent to Appellants and that Exhibit “G” was a mere fabrication. There is also abundant oral and documentary evidence about the demand for rents and for possession. Evidence for rents and for possession is contained in Exhibits “K” “N” “B” “M” “MI” “Y” and “ZI” “The’ Reply Brief could not therefore have altered the findings and ultimate decision in the case. Although the Court below had a duty to consider and determine the application, the failure so to do did not occasion any miscarriage of justice. In the event I also resolve this issue in favour of the Respondents.

In conclusion, I hold that the appeal lacks merit. There was no evidence the part-purchase of the property which they pleaded. Nor was there any evidence of the purported assignment of the property by the 1st Respondent to the Appellants through Exhibit “G” which they later introduced in the case. Exhibit “G” which signature was established to be a mere simulated forgery of the genuine signature of the 1st Respondent was itself a contradiction of the claims for specific performance and damages for breach of contract. The case of the Appellants as pleaded in the amended Statement of Claim and the defence to the caunter-claim told the lie against itself. The result is that this appeal ought to be dismissed and is accordingly dismissed with costs which I assess at N50,000.00 in favour of the Respondents.

---

SC.231/2006

Bello Ogundele & Anor. V. Shittu Agiri & Anor (2009)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

The Appellants herein, who were the plaintiffs at the trial High Court Osogbo claimed against the respondents herein as follows:

(1) “An Order that the judgment of the Hon. Justice S.A. Oloko delivered on 23/1/81 in suit No HOS/1/79 Muibi Agiri & Ors v. Kadiri Otun Imale & 2 others be set aside being tainted with fraud/ or misrepresentation.

(2) The sum of N3Million being the general and special damages for trespass and conversion committed as a result of the said judgment obtained by the Defendants.

(3) INJUNCTION restraining the defendants, their servants or agent from committing further acts of trespass and conversion on the plaintiffs’ farm land at Onifare village via Ila-Orangun in dispute in the said suit No HOS/l/79 Muibi Agiri and 2 others vs. Kadiri Otun Imale and 2 others”

The appellants in paragraphs 8 and 9 of his statement of claim pleaded the facts of the fraud as follows:-

“8. On comparing the contents of the proceedings tendered by the defendants (as plaintiffs) in suit NO.HOS/l/79 as Exhibit B and the certified true copy of the same proceedings obtained at the Archives by the plaintiffs in 1995, it was discovered that the contents were different in that only a part of the proceedings was procured and tendered by the defendants (as plaintiffs) while the remaining and concluding part was fraudulently left out or concealed”.

PARTICULARS OF THE FRAUD OR MISREPRESENTATION

(i) That the defendants (as plaintiffs) fraudulently procured and tendered only the part of the proceedings in the case 1/37 favourable to them and left out the subsequent proceedings in the same case which was not favourable to them.

(ii) That the defendants (the plaintiffs) tendered only the proceedings of 26/6/37, 7/7/37 and 14/7/37 while the subsequent proceedings of 22/9/38, 28/9/30 and 5/10/38 were deliberately left out or concealed.

(iii) That the final judgment in the case was delivered on 5/10/38 and not on 14/7/37 as falsely misrepresented on the version tendered in HOS/1/79 and in their oral evidence in court.

(iv) That the defendants (as plaintiffs) know or ought to know that’ after the proceedings of 14/7/37 there were further proceedings in the Native Court case involving an order of reopening of the case by the then “D. O” on 22/9/38 and further order of Inspection before judgment was finally given on 5/10/38 as they fully participated in the proceedings. They intentionally mis-represented the facts to the court.

(v) That the defendants (as plaintiffs) deliberately procured the part of the proceedings favourable to them to enable them obtain judgment in their favour thereby deceiving and misleading the court in the said suit HOS/1/79,

(vi) That if the full record of proceedings of the Native court case had been tendered, the decision of the court in suit No, HOS/1/79 would have been different”.

“a) The whole Native Court proceedings in the case 1/37 referred ‘to above is part of the records of proceedings of Native Courts in the former Western provinces of the then colony and protectorate of Nigeria which are now kept in the Archives at Professor H.A, Oluwasanmi Library at the O.A.U. Ile-Ife”,

In response to these averments, the respondents in paragraph 8 of their statement of defense pleaded as follows:-

“8, As regards paragraphs 8 (i) (ii) (iv) (v) (vi), 9, 11, and 12 of the statement of claim, the defendants aver that the plaintiffs have raised similar issues in their motion dated the 24th day of April 1995 filed on their behalf by Chief Oye Esan at the Court of Appeal Ibadan and to which the defendants filed a counter affidavit in similar vein to their statement of defense in this suit and which motion has been adjourned for hearing till the 21st day of May, 1997. The defendants will rely on the motion paper and the affidavit in support as well as the counter-affidavit and all relevant papers at the trial of this action”

At the trial, both parties called their respective witnesses. The gist of this case is hat there was a dispute over the land in dispute between the families of the parties in his case in 1937 before the ILA Native Court. On 14/7/37 judgment was delivered whereby the defendants, the predecessors of the appellants before that court, were ordered to pay 20 shillings and to vacate the land.

However in 1938 the matter was ordered to be re-opened and a joint inspection of the land was ordered whereby both parties agreed to a common boundary and the court’s inspection team planted “peregun” tree at the agreed boundary to demarcate the and, thereafter a judgment was finally delivered in terms of the mutual agreement. In 1979, the respondents filed a fresh action for declaration of title to the land, including the part that belonged to the appellants, and tendered the judgment delivered on 4/7/37 without averting the court with the proceedings that terminated in 1938.

Based on the judgment of the Native Court delivered on 14/7/37. Hon. Justice Oloko gave judgment for the respondents. The appellants appealed against the judgment but later abandoned it. Thereafter, the appellants filed this suit and claimed the reliefs earlier set out in this judgment. The judgment delivered in 1938 was tendered as Exhibits B and B1. The learned trial judge, Justice R. O. Yusuf gave/judgment for the plaintiffs; following the judgment of this court in Talabi v. Adeoye (1972) 8 – 9 SC 20 at 40, the learned trial Judge held as follows:-

“By this authority and contrary to Fabunmis submission, the plaintiff is on a firm wicket when it commenced this fresh action to challenge the judgment and after obtaining the complete record of the Ila-Orangun proceedings in 1/37 in 1995. The writ here was obtained in 9/8/86. The plaintiffs indeed were delighted. Thus the plaintiff employed the proper procedure to challenge the judgment procured by suppression of material fact and/or misrepresentation and this I hold amount (sic) to a fraud practiced by one of the parties on the court and to this extent that judgment cannot stand. It is hereby set aside” .

The respondents appealed against this judgment to the Court of Appeal, hereinafter called the lower court. The lower court allowed the appeal.

On the issue of fraud, the lower court held as follows:-

“A critical examination of the supportive evidence albeit disjointed, adduced on behalf of the respondent on the fact in issue which is “fraud” is not only bare but also inadequate to meet the standard of proof which is very high. Thus the respondents rightly spelt out some particulars in their paragraph 8 of the statement of claim in the trial court. Those particulars were however in no way articulated in the evidence of the Pw1 and Pw2. Thus all the Pw1 said is that he was in court to tender exhibits Band Bl without more. Whereas the averment is that the Hezekel Oluwasanmi Library O.A.U. Ife from where they were procured now serves as Archives for records of proceedings of Native Courts in the defunct Western provinces of Nigeria.

The Pw2 simply alleged that the judgment of Ila Native Court marked Exhibit 2 is fraudulent. I am of the view that there is need for more aspersion to stigmatise that exhibit fraudulent. The respondents averments (supra) are in essence at variance with the supporting evidence …”

In conclusion, the lower court held thus:-

“Apart from this observation, there are glaring omissions between exhibits B and B1 (being respectively the manuscript and type written scripts) which the learned trial judge made use of in his judgment. Without going into further details on discrepancies on exhibits B and Bl, which were considered accurate in the lower court, I am of the view that they are replete with suspicions and largely incoherent. In these circumstances I am of the strong opinion that the high standard of proof to establish fraud which is beyond reasonable doubt was not established in the trial court. There was therefore with due regard, no basis at all for the learned trial Judge to order setting aside the judgment in Suit No. HOS/1/97, on the averment of unsubstantiated fraud”.

Being dissatisfied with the judgment of the lower court, the appellants have appealed to this court. In accordance with the rules, both parties filed and exchanged their respective briefs or argument. The appellants in their Brief of argument dated 7/9/04 formulated two issues for determination as follows:-

(1) Whether the lower court was right to have based its decision on proof of fraud upon extraneous matters.

(2) Whether the lower court was right in its findings and decisions that fraud was not proved,

Whilst the respondents in their brief of argument dated 19/6/08 formulated three issues

for determination as follows:-

(i) Whether or not the decision of the court of Appeal that the Appellants did not establish beyond reasonable doubt that the Respondents obtained judgment in suit NO.HOS/1/79, namely Muibi Agric and Ors vs Kadri Otun Imole and Ors by fraud or misrepresentation was based on extraneous matter raised suo-motu by the Court of Appeal.

(ii)Whether or not the Court of Appeal was right in its decision that the Appellants do not establish by evidence the averments of fraud pleaded in paragraphs 8(i)-8(ii) of the appellants averment statement of claim.

(iii) Whether the Court of Appeal was right in setting aside the finding of the trial court that the Respondents obtained judgment in Suit NO. HOS.l.79 and holding that the Appellants did not establish fraud against the Respondents as pleaded in their statement” .

At the hearing of this appeal, the learned counsel for the appellants adopted his brief of argument and urged this court to allow the appeal.

In respect of the issue one formulated by the appellants, it was the submission of the learned counsel that the judgment of the lower court was based on extraneous matters, to wit – the custody of exhibits Band B1, the alleged discrepancies between Exhibits B and B1 which are issues not joined by the parties in their pleadings and not raised by either of the parties. These are issues raised suo-motu, and the parties were not given the opportunity of being heard on them, thus occasioning a miscarriage of justice. Plethoras of authorities were cited amongst which are:-

(i) Olusanya v. Olusanya (1983) NSCC97 at 102.

(ii) Iyaji V. Eyigebe (1987) 7 SCNJ 148 at 156.

The learned counsel submitted that the lower court was wrong with the strict manner it construed the proceedings of a Native Court, which requires a greater latitude and broader interpretation. He cited the cases of Adofin v. Oni (2001) 1, SCNJ 13 at 149, and Ezanya v. Okeke (1995) 4 SCNJ60 at 76.

On the second issue, it was the submission of the learned counsel that, the fact of the concealment of the Native Court’s judgment delivered in 1938 from the trial court in suit No. HOS/1/79 is sufficient to prove the fact of the fraud committed; or the act of the false misrepresentation that gave birth to the judgment in suit No. HOS/1/79.

Learned counsel to the respondents at the hearing also adopted his brief of argument and urged this court to dismiss the appeal. on the 1st issue, it was the submission of the learned counsel that an appeal is by way of re-hearing and the court of Appeal was entitled to re-evaluate evidence before the trial court where the trial court fails to properly evaluate the evidence adduced before it. It referred to paragraph 7 of the statement of defence and submitted the issue of custody, authenticity and discrepancies between the exhibits were not issues raised suo-motu, the case of Dairo v. U. B. N Plc (2001) 11 MJSC 74 at 93 was cited.

On the second issue, it was the submission of the learned counsel that the lower court was correct in holding that the ‘fraud’ was not proved. It was his submission that fraudulent conduct must be distinctly alleged and distinctively proved; fraud is certainly not allowable to be inferred from the facts of the case. The cases of:-

(1) Davy V. Garrelt (1878) 7 CH. 0.473 and

(2) David Fabunmi v. Abigail Agbe (1985) 3 SC28 at 76 were cited in support.

Learned counsel then referred to the evidence of Pw1 and Pw2 and submitted that the evidence was not sufficient to prove fraud; which is a criminal allegation. It is to be noted that no argument was proffered in support of the 3rd issue formulated by the respondent that issue is accordingly struck out. This is what had transpired in this appeal.

Before I proceed with this judgment it is worthy of note to state that the respondents challenged the competence of grounds 1 and 3 of the Notice of appeal on the ground that they were grounds of mixed law and fact, in respect of which the appellants did not obtain the leave of either the lower court or this court. file therefore urged this court to strike out the said grounds of appeal.

I have read the preliminary objection and carefully perused grounds land 3 of the Notice of appeal, and applying the principles enunciated by this court in Ogbechie v. Onechie (1986) 2 NWLR (pt. 23) 484 at 491, I find no difficulty in holding that the resolution of these grounds of appeal will reveal a mis-application of the law to the facts already proved and admitted at the trial court, I therefore hold that the grounds complained against are grounds of law and not of mixed law and facts hence no leave of any court is required to file them before this court. The objection being misconceived is hereby over-ruled.

In the determination of this case, I am of the humble view that the sole issue that ails for determination in this appeal is-

“Whether the respondents made a full disclosure of the proceedings of the lIa-Native Court before the High Court of Justice in suit No. HOS/1/79, that led to the judgment delivered in the said suit by the Hon. Justice S. A. Oloko on 23/1/81.. “.

This is so, because if the full proceedings of the final judgment was not made available to the court in suit No. HOS/1/79 then something might have gone wrong. At this, juncture, it is necessary to reproduce the contents of the proceedings of the lIa-Native Court.

On the 14/7/37, the proceeding of the court reads:-

“Judgment: fined to lagbe deft 20 N for destroying the peregun trees in the boundary and to leave Yesufu Agiri land and let where the peregun trees of the 13years be remained as boundary and to pay cost Obale. His money.

14:7:37.

p. a. 20 – CR. No. 9821 of 14:7:37 case to be reopened and the boundaries of Yusufu Agiri’s farm land to be marked if he dissatisfied he P.T.O. Made appeal to Orangui’s court and thence through the usual channels.

See page 33.

Rev. Willes D.O”.

22:9:37.

Apparently, the decision of 14:7:37 was not final as to the boundary of the land in dispute. There was an order to re-open the case if there was no appeal to Orangun’s court. There was no appeal to Oraguns court, and in compliance with the order of 14:7:37, the case was re-opened in 1938, and it was recorded as follows:-

“suit No 1/37

Re-open by the D.O’s Order Judgment was given on 5/10/38… Judgment for the defendant hold the left from the Peregun planted to boundary and Tolagbe on the right.

SGD.

Obale His Umaen.

5/10/38”.

It is therefore not in doubt that the final judgment as to the extent of the land of each of the parties was given on the 5/10/38 and not the order of 14:7:37.

In the case instituted by the respondents in suit No HOS/1/79 only the proceedings of 14:7:37 was produced before the court which led to the judgment delivered by the Hon. Justice S. A. Oloko. In this respect, the learned trial judge held as follow:-

“The Commission/suppression of the highlighted proceedings drastically misled or misrepresented the outcome of the Ila proceedings to the court in HOS/1/79 and what is more, the court relied on this to come to the conclusion”.

With the greatest respect I am of the humble view that the trial court’s findings on this issue were correct. If this proceedings of 5/10/38 has been produced before the court in suit No. HOS/1/79, the judgment of the Hon. Justice S.A. Oloko would have been different. This is a clear case of concealment or false misrepresentation. I quite agree, with all sense of responsibility, with the submission of the learned counsel to the appellant that the lower court based its judgment on extraneous matters to wit – issue of custody, authenticity and/or discrepancies between exhibits B and B1. These are issues not raised by the parties. The lower court was therefore in error to have raised them suo-motu without affording the parties the opportunity to address it on them. See the cases of:-

(a) Olusanya v, Olusanya Supra at 139;

(b) Kuti v. Jibowu (1972) 1 All NLR (pt. 11) 80/192; and

(c) Ajo v. Ashiru (1973) 1 All NLR (pt.11) 51/63.

At any rate, Exhibits B and Bl were dully certified by the authority that was in lawful possession.

The respondents in paragraph 7 of the statement of defence only claimed ignorance of their existence. Neither was any evidence led to show that these exhibits were forged. It is trite law that oral evidence is inadmissible to contradict the contents of a document. In other words oral testimony cannot be used to state the content of a document. S. 132(1) of the Evidence Act; and no extraneous matter can be imported into the record of proceedings. See Union Bank of Nigeria Ltd v. Ozigi (1994) 3 NWLR (pt.333) 385; see also Nnubia v. A.G. Rivers State (1999) 3 NWLR (pt. 593)82.

This is so, because documents when tendered and admitted in court are like words uttered and do speak for themselves. They are more reliable and authentic then words from the vocal cord of man as they are neither transient nor subject to distortion and miss-interpretation but remain permanent and indelible through the ages. See:-

1. Aiki v. Idowu (2006) 9 NWLR (pt 984) 50/65 per Alagoa JCA,
2. C.D.C. (Nig) Ltd v. SCOA (Nig) Ltd (2007) 6 NWLR (pt. 1030) 300.
3. Ogbelde v. Osijo (2007) All FWLR (pt. 365) 548

What more, exhibits B and B1 are public documents forming the records of the acts of judicial body i.e. Ila Native Court and duly certified in accordance with the provisions of Section 111 of the Evidence Act.

Before I end this judgment, I also wish to comment on the strict interpretation placed on exhibits B and B1 by the court below. Exhibits B and B1 are record of proceedings of Ila Native Court, and as such the court below was in error to have strictly interpreted its proceedings knowing fully well that judges who presided were not legally trained lawyers. This court in the case of Odofin V. Oni (2001) 1 SCNJ 130 handed down the principles to be adopted in interpreting the records of proceedings of a Native or Customary Courts. At page 149 of the report Achike JSC of blessed memory stated the principles thus:-

“In order to appreciate the real effect of the lower courts strong criticism of the statement of the customary court that the respondent “failed to prove ownership of the land in dispute” it is important to stress that greater latitude and broader interpretation must be accorded to decision of customary courts as it is trite that the proceedings in the customary courts are not subject to the application of the Evidence Act. It is important that superior appellant courts in relation to matters relating to customary courts should focus their attention to the substance of the judgments or decisions in those courts rather than the forms. This is so because customary courts be they Area Courts or whatever name they are christened in our judicial jurisdiction are generally presided over by laymen without even rudimentary exposure to legal principles. An Appellate Court should in all circumstances strive to get the bottom of the decision of a customary court. This can only be achieved by considering the input of a decision of a customary court not in fragments or in isolation of excerpts thereof but must be read harmoniously as a whole in order to capture its imports. In other-words when greater latitude is accorded to the interpretation of the decisions of customary court it will be sufficient if such decisions are seen to accord with the view of person of good common sense and reason completely devoid of legalistic encrustments”.

See also Ezeanya v. Okeke (1995) 4 SCNJ 60/76. Where the Supreme Court made the following statement:-

“it is a matter of common knowledge that pleadings were not filed in the Native Courts and consequently the appellate courts have consistently held:-

(i) That it is not the form of an action in a Native tribunal that must be stressed where the issue involved is otherwise clear; it is the substance of such a claim that is the determinant factor.

(ii) Proceedings in a Native Court have to be carefully scrutinized to ascertain the subject matter of the case and the issues raised therein.

(iii) It is permissible to look at the claim, findings and even the evidence given in a native tribunal to find out what the real issue were.

(iv) In dealing with the proceedings from Native Courts, appellate courts must not be unduly too strict with regard to matters of procedure as the whole object of such trials is that the real dispute between the parties should be adjudicated upon.

(v) As long as Native Courts acted in good faith, listened fairly to both sides and gave opportunity to the parties to present their case and correct or contradict any relevant statement prejudicial to their view, they cannot be accused of offending against the rules of natural justice and their decisions on the real issues between the parties ought not to be disturbed without very clear proof that they are wrong”. Per Iguh JSC at Page 76. Finally on this point is the case of Olujiule v. Adeagbo (1988) 2 NWLR (pt. 75) 238 at 251″.

I quite agree with the above principles as enunciated by my learned brothers, Achike and Iguh JJSC, and applying them in the case at hand, have no hesitation in holding that the lower court was in a grave error in the ways and manners it strictly interpreted…The exhibits B and Bl in this matter. It is unnecessary and uncalled for. Finally, I hold that this appeal my lords has merit. The appellants have proved that the respondents falsely misrepresented the proceedings of lIa- Native Court in suit No HOS/1/79 by concealing the final judgment of that court, which led to the judgment delivered by the Hon. Justice S.A. Oloko in 1981. Consequently the judgment of the lower court is hereby set aside and in its place the judgment of the trial court delivered by Hon. Justice R. O. Yusuf on 13th day of October, 1998 is hereby restored. The appellants are entitled to costs both in the court below and this court assessed at N30,000.00 and N50,000.00 respectively.

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SC.134/2004

Samuel Ononuju & Anor. V. Attorney-general, Anambra State & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

P.O. ADEREMI, J.S.C

This is an appeal against the majority judgment of the Court of Appeal, Enugu Division (hereinafter referred to as the court below) coram Thompson Akpabio JCA of blessed memory and Niki Tobi JCA (as he then was) delivered on 13th of July, 1998 dismissing the appeal of the plaintiff who was the appellant before the court below thus upholding the judgment of the trial court which had dismissed the plaintiff’s case on the 24th of October, 1994.

The appellants in this appeal were the plaintiffs in Suit No. HN/53/90; (1) Eng. Samuel Ononuju and (2) Frederick Azubuine (representing Ndumanya Family of Umuohi, Okija) as plaintiffs and (1) Attorney-General, Anambra State, (2) Commissioner for Works, Lands and Transport, Anambra State and (3) Chief Emmanuel Eze Onwuka, as defendants. The plaintiffs had before the High Court of Justice, Anambra State sitting at Nnewi Judicial Division, taken action against the defendants, claiming against them jointly and severally as follows: –

“(1) A declaration that the purported acquisition of the plaintiffs’ land, of the Annual Value of N100,000.00 by the Anambra State Government acting through the 2nd defendant is unconstitutional, null and void and not effective to divest the plaintiffs of their title to the said land.

(2) A declaration that the Certificate of Occupancy issued by the Chairman of the Ihiala Local Government Authority and dated 27th April, 1989, purportedly granting a portion of the plaintiffs’ land to the 3rd defendant is otiose, ineffective to transfer any title to the 3rd defendant and contravenes the constitutional rights of the plaintiffs to their land.

(3) IN THE ALTERNATIVE, if the plaintiffs’ land was at any time legally vested in the Federal Government, a declaration that it is unconstitutional and a contravention of the law empowering the compulsory taking over of a subject’s land to grant a portion of the plaintiffs’ land to the 3rd defendant for his private purpose.

(4) IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that the Chairman, Ihiala Local Government Authority was and is not competent to grant the Certificate of Occupancy dated 27th April, 1989, in respect of the said land to the 3rd defendant and the said Certificate conveyed no legal interest in the plaintiffs’ land to the 3rd defendant.

5. IN THE ALTERNATIVE, if the plaintiffs’ land ever legally vested in the Federal Government, a declaration that on failure of the object of public purpose for which the land was acquired compulsorily the land reverted to the plaintiffs.
6. N10,000.00 general damages against the 3rd defendant for his continuing trespass to the plaintiff s said land.

and (7) An injunction restraining the defendants and each of them by themselves or through their agents, servants or privies from remaining on the plaintiffs’ land or doing any act thereon which interferes with the plaintiffs’ possession of the same.”

Pleadings filed and exchanged by the parties are (1) the statement of claim dated 14th August, 1990, (2) the statement of defence of the 3rd defendant dated 25th October, 1990 and (3) the statement of defence of the 1st and 2nd defendants dated 12th November, 1990. Both parties called evidence at the trial, to prove the respective averments contained in their different pleadings. After taking the final addresses of the counsel appearing for the parties, in a reserved judgment delivered on the 24th October, 1994, the trial judge dismissed the plaintiffs’ claims in toto.

Being dissatisfied with the said judgment, the plaintiffs appealed to the court below. After hearing the counsel appearing for the parties on the respective briefs of arguments filed on behalf of the clients, the court below, in reserved judgments delivered on the 13th of July 1998, by a majority judgment (Akpabio JCA and Tobi JCA – as he then was), dismissed the appeal of the plaintiffs/appellants with costs. But on the same date, by a minority judgment wherein Salami JCA dissented, the appeal of the plaintiffs/appellants was allowed, the decision of the trial court including the order as to costs were set aside.

Being dissatisfied with the majority judgment of the court below, the present appellants have appealed to this court by way of a Notice of Appeal filed on 3rd September, 1998 which carries five grounds of appeal. Also, the 1st and 2nd respondents being dissatisfied with part of the majority judgment relating to the issue of proof of title to the land in dispute by the appellants prior to the Land Use Act as averred in paragraph 4 of the statement of claim and for which, according to the 1st and 2nd respondents, they joined issue with the plaintiffs/appellants, that aspect have been struck out in the majority judgment on the ground that it was a non-issue, they have cross-appealed to this court by a Notice of Cross-Appeal dated 15th July, 2002 which carries three grounds. For similar reason, the 3rd respondent has also cross-appealed to this court by way of a Notice of Cross-Appeal dated 22nd June 2002 which itself has three grounds.

When this appeal came before us for argument on the 9th of February, 2009, Chief Onwugbufor learned senior counsel for the 3rd respondent sought and obtained the leave of court to withdraw the Notice of Preliminary Objection filed on the 24th of April, 2006 and the second arm of the Notice of Preliminary Objection filed on 27th June, 2007 and all the arguments canvassed in support of the two Notices as contained in the brief of argument of his client. Immediately thereafter but on the same day, Mr. Osighala, learned counsel for the appellants, adopted his clients’ brief filed on the 21st of August 2000 and the plaintiffs/cross-respondents’ brief deemed properly filed on the 26th March, 2007 and urged that the appeal be allowed while the cross-appeals be dismissed. Mrs. Onwuka, Chief State Counsel, Ministry of Justice, Anambra State representing 1st and 2nd respondents, adopted her clients’ brief of argument filed on the 17th of June, 2002 and urged us to dismiss the appeal; she also adopted the 1st and 2nd cross-appellants’ brief filed on the 29th of April, 2004 and urged us to allow the cross-appeal. Chief Onwugbufor, learned senior counsel for the 3rd respondent adopted his client’s brief filed on 21st June, 2002 his cross appellant’s brief filed on 23rd April, 2004 and the 3rd cross appellant’s reply brief filed on the 25th of May, 2007, he submitted that issues Nos. 3 and 4 on the appellants’ brief did not arise from the court below’s judgment and consequently, those two issues be struck out; he finally urged us to dismiss the appeal but to allow the cross-appeal of his client. The appellants have distilled four issues from their five grounds of appeal for determination; and as set out in their said brief of argument; they are as follows:

“(1) Was the acquisition of the 15,025 hectares granted to the 3rd respondent invalid null and void

(2) Was the majority decision of the court below correct in law when it upheld the finding of the trial court that notices of revocation were served on the appellants

(3) Was the majority judgment of the court below right in holding as did the trial court that the 15,025 hectares of land granted to the 3rd respondent was for public purposes or for a continuation of the public purposes for which the Federal Government built low cost houses on the adjacent 5 hectares of land

(4) Was the Certificate of Occupancy granted to the 3rd respondent by the Chairman of the Ihiala Local Government Council on the 27th of April 1989, valid”

The 1st and 2nd respondents for their part raised for issues for determination by this court, as contained in the brief of argument, they are in the following terms: –

“(1) Whether the plaintiffs proved the ownership of the land in dispute as required by law having regard to the pleadings and the evidence, If so, was the acquisition of 20,025 hectares of land by the Federal Government through the State Government which later granted a portion of it to the 3rd respondent valid in law, having regard to the concurrent findings of facts by the two lower courts.

(2) Whether the procedure for the Revocation of the Rights of Occupancy over the land in dispute especially as to service of Notice was valid, in law and whether on the receipt of compensation by the members of the plaintiffs’ family whom the plaintiffs, on record, represent did not debar the Plaintiffs from questioning the Revocation of Rights of Occupancy as found by the High Court and a majority of the Court of Appeal.

(3) Was the lease of part of the acquired land by the Federal Government to the 3rd defendant for socio-economic purposes to wit:

‘Building extension of low cost houses embarked upon by the Federal Government invalid, null and void after acquisition of the land and payment of compensation to the land owners by the Federal Government as found by the Court of Appeal and the lower court.’

(4) Whether the Customary Right of Occupancy granted to the 3rd Respondent by the Chairman of Ihiala Local Government Council was valid having regard to the circumstances of the case.”

As I have said above, Chief Onwugbufor learned Senior Counsel representing the 3rd respondent had on the 9th of February, 2009 when this appeal came before us for argument sought and obtained the leave of court to abandon his Issue No.1 and the arguments canvassed thereunder; the said issue reads: –

“Whether the court below was right in striking out the Issue of pre-Land Use Act title of the plaintiff/appellant having regard that without such proof the plaintiff/appellant cannot establish their locus standi to institute the action neither can they as they have done claim any reversionary title or interest in the land in dispute. Put the other way, is the proof of pre-Land Use Act title or holding of the plaintiff/appellant not a sine qua non to the institution of this action and obtaining the reliefs sought particularly as to their reversionary interests. ”

With issue No. 1 abandoned, the 3rd respondent is now left with three issues which as contained in his brief of argument are thus: –

“(2) now (1) Whether the court below was right in holding, as was held by the trial court, that the Notices of Revocation was served on the plaintiffs/appellants in accordance with Section 44 of the Land Use Act and Section 36 of the Land Use Edict No.2 of 1979 of Anambra State as validated by the Land Use (Validation) Act of 1979. (see Section 1 of the Land Use Act (Validation of Certain Laws) Act Cap 203 Laws of the Federation. (see also Section 50 of the Land Use Act Cap 202 Laws of the Federation.

(3) now (2) Whether the court below was right in holding, as did the trial court that the acquisition of the said land by the Federal Government and the transfer of same to the 3rd respondent, or socio-economic purpose was not a transfer or lease within the meaning of ‘public purpose’ or an extension of ‘public purpose’ under the Land Use Act 1978 and thus void.

(4) now (3) Whether the Right of Occupancy granted to the 3rd respondent by Ihiala Local Government under the direction of the Federal Government was valid exercise of the power of the Local Government under the law”

As I have said above, the 1st and 2nd respondents filed a cross-appeal and the two jointly filed a cross-appellants’ brief on the 29th of April, 2007. They have jointly raised three issues for determination, and as contained in their afore-said cross-appellants’ brief, they are as follows: –

“(1) Whether the proof of the Pre-Land Use Act, title or holdings of the plaintiffs/appellants is not sine qua non or fundamental issue to vest them with the locus to institute this action and seek the relief they claimed in view of their pleadings and evidence.

(2) Did the parties (plaintiffs/appellants, defendants/ Cross-appellants) join issues on the Pre- Land Use Act title of the appellants to the land in dispute and jurisdiction to entertain the action in view of the locus of the plaintiffs in the issues before the lower court and the court trial.

(3) Can the lower court decline to deal on crucial issues put before it when no decision had been given on them but simply refer to the issues in a sweeping statement as non issues.”

Similarly, the 3rd respondent as said above, filed a cross-appeal and in his cross-appellant’s brief, he raised two issues for determination, they are as follows: –

“(1) Whether the Court of Appeal was right in striking out the issue of the Pre-Land Use Act title or holding of the plaintiffs/appellants on the ground that the issue was not raised by anybody and that the plaintiffs/appellants are not claiming for compensation when there was evidence that the issue arose both at the trial court and the court below.

(2) Whether the plaintiffs/appellants, having failed to prove ownership or Pre-Land Use Act title or holding of the land in issue, have locus standi to institute the action as respects their claim for compensation and reversion.”

At this stage, I consider it necessary to deal with the first arm of the Notice of Preliminary Objection filed on 27th June, 2007, the second arm of that objection having been withdrawn by the learned counsel for the 3rd defendant/respondent. In the first arm of the said objection, the 3rd respondent has argued that grounds 1, 2, 3 and 5 on the Notice of Appeal are grounds of fact or mixed law and fact which require leave of court before they can be argued and since, according to him, no such leave has been obtained, he argued that the said grounds of appeal are not to be entertained. For a proper consideration of the Preliminary Objection, I am of the view that I should reproduce the said grounds of appeal; they are as follows:-

(1) The majority Justices of the court below erred in law in holding that the learned trial judge’s finding that notices of acquisition of the land in dispute were duly served on the appellants as prescribed by Section 44 (e) of the Land use Act Chapter 202 by being posted on abandoned houses not on the land the subject of the suit and on some trees was correct when: –

(a) The pre-requisites for service by posting were not complied with

(b) The said section prescribes that reasonable enquiry should first be made to ascertain the name or address of a holder or occupier of the land on whom the notice should be served and there was no evidence of any such enquiry.

(c) The second requirement that where this was not practicable the notice should be addressed to the holder or occupier by the description of “holder” or “occupier” of the land calling it by its name to which it relates and then delivering the notice to some person on the premises was not complied with.

I do not consider it necessary to quote all the particulars as set out in the Notice of Appeal; suffice it to stop at particular (c) supra since the purpose of the preliminary objection is to find out whether the grounds are those of law or not.

I now reproduce the other grounds in part: –

(2) The court below in its majority judgment misdirected itself in law in dismissing the plaintiff/appellants’ appeal in reliance of the following passages culled from the decision of the Court of Appeal, Benin Division in Integrated Rubber Products Limited v. Oviawe (1999) 5 NWLR (pt.243) 572.

On what is a public purpose.

The establishment of an Industrial Residential Layout is a public purpose as defined in Section 2 (h) of the Public Lands Acquisition Law and acquisition for purpose thereof will qualify as acquisition for public purpose Bello v. Diocesan Synod (1973) 1 All NLR (pt.1) 247; Peenok Investments Limited v. Hotel Presidential Limited (1983) 4 NCLR 122 referred to and distinguished at p.586 paras E – F.

On the effect of a grant of Certificate of Occupancy over land

By virtue of Section 14 of the Land Use Act, once the Governor grants a Certificate of Occupancy to a person, Customary title over that piece of land the subject-matter of a Certificate of Occupancy cannot defeat the grantee’s right.

Some of the relevant particulars are hereunder reproduced

(c) The 3rd respondent, the grantee of a customary right of occupancy was not building low cost houses in continuation of the purpose for which the Federal Government compulsorily acquired the adjoining land as wrongly held by the trial court and confirmed by the court below.

(e) The 3rd defendant built flats for commercial purposes which he let out to tenants at a rent above that stipulated in the Control of Rents Edict. The 3rd defendant was erecting a hotel for commercial purposes.

(f) It is not the law as erroneously held by the court below that a Certificate of Occupancy obtained by fraud as in this case overrides the right of occupancy of the holder or owner.

(3) The court below as did the trial court erred in law in giving any validity to the Certificate of Customary Right of Occupancy flaunted by the 3rd respondent when the said document was ineffective, invalid, null and void, in law.

(5) The court below erred in law in upholding the funding of the trial court that the grant of the land in dispute to the 3rd respondent was for a public purpose as known to law and was as continuation of the public purpose for which the Federal Government acquired the land compulsorily.

Particulars of Error

(a) The public purpose stated by the acquiring authority for the compulsory acquisition was for building low cost houses.

(b) In 1990 when the formal attempt at acquisition was made, the Federal Government had completed the building of low cost houses allocated to Ihiala Local Government Area on 5 hectares of land.

(c) The government did not require the additional 15.025 hectares which it purported granted to the 3rd respondent.

(d) Low cost housing estates were not intended for bank managers, university lecturers and medical doctors but for persons in the low income group.

(e) The 3rd respondent admitted charging a rent of N300.00 per mensem per flat which is more than 800% of the maximum rents prescribed for the flats the 3rd respondent build on the land which N420.00 per annum according to the First Schedule to the Landlord and Tenant Law in force in Anambra State.

(f) Building and operating a restaurant or a bank or a hotel did not come within the definition of public purpose under the Land Use Act.

As I said above, the 3rd respondent, by the first arm of his Preliminary Notice of Objection is contending that grounds 1, 2, 3 and 5 on the Notice of Appeal are of facts or mixed law and facts and to be valid for consideration, the leave of court must be sought and obtained. This condition precedent not having been fulfilled, those grounds, it was contended, are incompetent. Suffice it to say that only ground of law simpliciter does not require leave for its validity before an appellate court. Let me start by saying that the line of distinction between law simpliciter and mixed law and fact is one that is very thin. In other words, the line of distinction is one that is fraught with some difficulties. In determining whether a ground of appeal alleges an arm of law or fact, it has been held that the general requirement or duty of the court is to examine thoroughly the grounds of appeal to see whether the grounds reveal a misunderstanding by the lower tribunal of the law or a misapplication by it, of the law to the facts already proved or admitted, in which case it would be question of law; or one that will require questioning the evaluation of the facts by the lower tribunal before the application of the law, in which case, it would amount to a question of mixed law and fact. See (1) OGBECHIE v. ONOCHIE (1986) 2 NWLR (pt.23) 484, (2) METAL CONSTRUCTION (W.A.) LTD v. MIGLIORE (1990) 1 NWLR (pt.126) 299 and (3) P.N. UDOH TRADING CO. LTD. v. ABERE (2001) 1 NWLR (pt.723) 114.

Reading ground 1 on the Notice of Appeal, it seems clear to me that the question the court is called upon to answer here is one which is in accordance with a rule of law i.e. Section 44 (e) of the Land Use Act Chapter 202 – this certainly excludes exercise of discretion in answering that question as the court thinks fit in accordance with what is considered to be the truth or otherwise of the matter. Ground 1 in my respectful view, is a ground of law simpliciter. Ground 2 in the Notice of Appeal calls for the construction of the decision of the Court of Appeal in INTEGRATED RUBBER PRODUCTS LTD. v. OVIAWE (1993) 5 NWLR (Pt.243) 572 – for this question I do not hesitate in saying that this ground is also of law simpliciter. Ground 3 relates to the validity of the Certificate of Customary Right of Occupancy put up by the 3rd respondent. It is settled in law that no extrinsic evidence will ever be allowed to add to or vary the terms of any instrument the like of the Certificate mentioned in this ground. This ground calls for an answer in accordance with the rule of law. It is therefore a ground of law. Intrinsic in ground 5 is the issue of whether the grant of the land in dispute to the 3rd respondent was for a public purpose as known to law. This no doubt certainly excludes exercise of discretion in answering the question as the court thinks fit in accordance with what is considered to be the truth or otherwise. Again, this is a ground of law. Let me say that in substance, this appeal revolves round the interpretation of the provisions of the Land Use Act. It is therefore my judgment that all the grounds of appeal are valid; a fortiori, the appeal is consequently valid. This being the end of my treatment of the first arm of the Notice of Preliminary Objection filed on the 27th of June 2007, I shall now proceed to discuss the substantive appeal.

I have had a careful reading of all the issues raised for determination and it is my view that they are all interwoven into one and other. I shall therefore take all of them together. The appellants, through their brief of argument, after reviewing all the pieces of evidence led before the trial court, submitted that the Notice of Revocation was not served on the plaintiffs/appellants in compliance with the provisions of Section 44 of the Land Use Act. And since service of Notice of Revocation of Rights of Occupancy is a sine qua non to a valid compulsory acquisition of land, as rightly subscribed to by all the parties, it was again submitted that the acquisition was vitiated by failure to serve Notice of Revocation as prescribed by law. On the contention of the 1st and 2nd defendants/respondents/cross-appellants as pleaded in paragraph 11 of their defence that the publication in the Government Gazette of Anambra State satisfied the statutory requirement of notice to owners or holders, the appellants argued, relying on the decision in INTEGRATED RUBBER PRODUCTS NIGERIA LTD. v. OVIAWE (1992) 5 NWLR (pt.243) 572, that the publication in the gazette without personal service of the Notice of Revocation did not meet the requirement of the law such as to save the compulsory acquisition. They also referred to paragraph 4 of the statement of defence of the 1st and 2nd defendants/respondents wherein they averred:

” ….. that the land in dispute is a part of greater area of land acquired in 1982 by the Anambra State Government for the public purpose of the Federal Government of Nigeria.”

And they submitted that any purported compulsory acquisition in 1982 without a notice of revocation of rights of occupancy, a fact, according to them, rightly found by the two courts below and the counsel for the parties, is invalid, null and void and therefore, they finally submitted on this point that the evidence of DW3 – Valentine Sunday Nwoye, a Lands Officer attached to Department of Lands, Zonal Office, Abakaliki goes to no issue.

On Issue No.3 it was argued that the 3rd respondent to whom the grant of the land was made never used it for public purpose within the definition of Section 50 of the Land Use Act, rather he built flats on it part of which he let to bank workers, lecturers in nearby university and some private individuals from which he collected rents; while the majority judgment held that the purpose for which 3rd respondent turned the land into use was for public purpose, that minority judgment, which they argued, reflects the correct position of the land, held otherwise. It was submitted though the land was ostensibly acquired for public purposes but later used for other purposes, on the authority of the decision in OSHO V. FOREIGN FINANCE CORP. (1991) 4 NWLR (pt.184) 157 the revocation of the statutory right of occupancy was vitiated and the order made pursuant to it became unlawful.

On Issue No.4, it was argued that the 3rd respondent did not apply for Certificate of Occupancy over the land, the evidence before the court, was that it was Okija Industry Nigeria Limited or the Umuezeagumpi Umuofor Community Development that applied and the only connection between the 3rd respondent and the real applicant for the issuance of Certificate of Occupancy was that 3rd respondent was its director and/or Chairman; this, in principle of law, is wrong. Suffice it to say that the appellants, in their brief, dropped the issue of jurisdiction of the High Court to try case relating to title to land located in a rural area in view of the decision of this court on ADISA v. OYINWOLA (2000) 10 NWLR (pt.674) 116 which has laid that point to rest. They finally, however urge that the majority judgment of the court below which affirmed the judgment of the trial court and substitute it with the minority judgment of the court below.

The 1st and 2nd respondents have argued that failure of the plaintiffs to plead and lead evidence of who were their ancestors, how they came into the land and in short, failure to plead clearly their traditional history and lead evidence therein was fatal to their case placing reliance of many decisions the like of MOGAJI & ORS VS. CADBURY CO. (EXPORT) LTD (1985) 2 NWLR (pt.7) 393; OKO VS. IGWESHI (1997) 4 NWLR (pt.497) 51 and LAWSON VS. AJIBULU (1997) 6 NWLR (pt.507) 19. The plaintiffs, it was argued should be held as having failed to prove their case and it should be dismissed.

On Issue No.2, it was argued that the Notice of Revocation – Ex. J showed the totality of the kind to be acquired and was duly addressed to the holder or occupier and to the whole of Okija Community. The Notice it was further argued, was gazetted but the owners or occupiers failed to show up despite all efforts, it was again submitted, hence the notice was pasted on conspicuous places on the land to be acquired. The revocation of Rights of Occupancy and the service of the Notice of Revocation was therefore proper in law.

On Issue No.3, after reviewing the provisions of Section 28 (1) and (3) and (7) of the Land Use Act, it was submitted that the lease of the land to the 3rd respondent was regular and proper and in particular when compensation had been paid in accordance with the provisions of Sections 35 (1) of the Land Use Act, Section 40 (a) of the 1979 Constitution the plaintiffs therefore have no locus standi to bring this action. They urged that the appeal be dismissed.

On Issue No.2 in the 3rd respondent’s brief, (Issue No. 1 having been withdrawn) it was submitted strenuously as did the 1st and 2nd respondents in their brief that the service of the notice of revocation, having regard to the evidence on record was served in accordance with the provisions of Section 44 of the Land Use Act and Section 36 of the Land Use Edict, No.2 of 1979 of Anambra State as Validated by the Land Use (Validation) Act 1979 Cap 203 Laws of the Federation. Similarly, after referring to the evidence on record, it was submitted in respect of Issue No.3 that the grant or lease of part of the acquired land to the 3rd respondent for socioeconomic purpose was valid, as according to him, it was for public purpose within the definition of Section 51 of the Land Use Act, the case of LAWSON V. AJIBULU (1997) 6 NWLR (pt.507) 14. And on Issue No.4 which is on the issue of the validity of the Certificate of Occupancy granted to the 3rd respondent, it was submitted that it was the 3rd respondent that actually applied for the customary right of occupancy over the said land and not Okija Industries Ltd or Umuofor Community Bank. Again, it was further argued that the issuance of the Certificate of Occupancy by the Local Government was, going by the record, at the instance of the Federal Government who directed the Local Government to do so on its behalf since the land is located in a rural area. He urged the court to strike out this issue as merely academic and being irrelevant. Finally, on Issue No 5, it was submitted that in view of the concurrent findings of facts by the two courts below, this court ought not to disturb them while, in conclusion, it was urged that the appeal be dismissed.

I shall start the consideration of this appeal from the pleadings of the parties in paragraph 1 of the statement of claim, the plaintiffs bringing this action in a representative capacity, aver that they are members of the Ndumanya extended family of Umuohi Okija and that they were the undisputed communal owners of the land in dispute which they inherited from their ancestors and were in exclusive possession thereof on the passing of the Land Use Decree in 1978 under which they became entitled to a Customary Right of Occupancy over same. It is on this all important averment that they founded their claims for declaration that the acquisition of their land without notice was null and void and unconstitutional and order setting aside the Certificate of Occupancy granted to the 3rd respondent over the land etc – the comprehensive claims are set out above. Again, from the pleadings and as agreed by the parties, the land in dispute is in a non-urban area. A holder or occupier of a land whether developed or undeveloped in any area not in an urban area, under a recognised customary tenure before the commencement of the Act in March 1978 would continue to have the land vested in him and enjoy such rights and privileges on the land subject to the Act as if a Customary Right of Occupancy had been granted him by the Local Government of that area; see DZUNGWE VS. GBISHE & ANOR (1985) 2 NWLR (pt.8) 528 where at page 540 Aniabolu JSC opined: –

“Section 36 of the Act has transitional provisions relating to the land situate in non-urban area such as the land in dispute in this case. Sub-section (2) thereof deals with agricultural lands while sub-section (4) relates to developed lands.

In either case, the holder of the Customary Right of Occupancy of such lands shall continue to hold the land and would be entitled as of right, to a Certificate of Occupancy under the Act, neither the Governor nor the Local Government would have a right to divest such land from the person in whom the land was properly vested by the issue of Certificate of Occupancy over the land to another person in whom the land was not vested.” (Underlining mine for emphasis)

What was the case of the 1st, 2nd and 3rd defendants as demonstrated through their respective pleadings. All they have pleaded is that the land in dispute is a part of greater area of land acquired in 1982 by the Anambra State Government for the public purpose of the Federal Government of Nigeria. It was their further averment that after the said acquisition by the Federal Government, appropriate compensation was paid to the identified claimants and that Government went into possession – thus making the land a “State Land”. Notice of Revocation of Right of Occupancy was published in the Anambra State of Nigeria Official Gazette No. 16 Volume 15 of 3rd of May 1990. The 3rd defendant had been granted a Customary Right of Occupancy dated 27th April 1989 by the Ihiala Local Government in respect of the land in dispute. From the case of the 1st and 2nd defendants, it is clear that their claim to title to the land is founded upon “ACQUISITION” by the Federal Government. The validity of the title of the Government will depend on the validity of the acquisition in accordance with the laid-down principles of relevant laws which I shall later treat in this judgment. And since the 3rd defendant is claiming to have derived title from the 1st and 2nd defendants, his fate would be determined by theirs. It has been contended by the 1st, 2nd and 3rd d respondents/cross-appellants that the plaintiffs did not prove their title to the land and therefore they are not entitled to the reliefs sought. All I wish to say is that on the authority of “DZUNGWE” cited above, the plaintiffs/appellants need not go further to prove his title to the land beyond the averments I have extracted from their pleadings. When this same point was taken at the court below, Salami JCA in his dissenting judgment reasoned thus: –

“The appellants, stricto sensu, did not seek for a declaration of title in their claim before the trial court. The claims of the appellants for declaration for nullification of certain actions taken by government officials which they consider inimical to their interests, even though the issue of title might be incidental to the claim, it is not a matter for a declaration of title – for that case, it would not be required of the plaintiffs to establish their title to the land in dispute, especially so when the respondents were not seriously challenging their title to the land.”

I endorse the above holding of the learned jurist. I could not agree more.

As I have said above, on the state of the pleadings, the plaintiffs/appellants were holders or occupiers of the land in dispute prior to the promulgation of the Land Use Act; they therefore had the land in dispute properly vested in them. It follows that no one, including the government, can deprive a holder or occupier of a parcel of land unless the land is acquired compulsorily in accordance with the provisions of the Land Use Act e.g. for overriding public interest or for public purpose by the Local Government or State Government. See Sec. 28 (1), (2) and (3) of the Land Use Act; and by virtue of Section 28 (4) of the said Act, payment of compensation is also a condition precedent to the validity of such acquisition. See OGUNLEYE V. ONI (1990) 2 NWLR (pt.135) 745. The fundamental question to now ask is whether there was a proper acquisition of the land in 1982 Put in another way, was the Notice of Revocation duly served on the appellants as required by law The key witness on this issue is DW3 – Valentine Sunday Nwoye , Land Officer and a civil servant attached to the Department of Lands, Zonal Office, Abakaliki; in his testimony he said: –

“There was in 1990 a Notice of Acquisition which I served at Okija ………….

on receipt of the Notice from Enugu I went to Okija with a staff from office, Mr. S. Nwangwu who incidentally is a native of Okija …………..

We served the Notices but they refused to sign. We saw some abandoned low cost houses on the land. We pasted the notices on the houses. We pasted a notice on a wooden fence and wire fence to the entrance. I pasted on some trees I saw there. I pasted the notices on every conspicuous place within the land. I made enquiries as to the owners. We then went to the Ihiala Local Government. We served the notice on him. We met the Secretary Mr. Ogu and asked him to get the Local Councillor to publicise the acquisition. We sent some of the Notices to the churches for public announcement”

In the majority judgment, in ascribing evidential value to this evidence, Akpabio JCA who read the lead judgment said: –

“First, there can be no argument that effective service of Notice of Revocation is a sine qua non to any valid acquisition of land by any Government, be it Federal, State or Local Government.”

After reproducing the evidence of DW3 as I did supra, he continued to say: –

“At the end of the exercise, the learned trial judge Offiah J. was satisfied with the above evidence that the Notice of Revocation was effectively served as required by Sec 44 (e) of the Land Use Act and I agree with him.”

However, in the minority judgment, Salami JCA on the same issue said: –

“The respondents having failed to establish compliance with the provisions of the Act, the acquisition, in my view, is bad ab initio and any act predicated upon the unlawful acquisition is equally bad. The acquisition on behalf of the Federal Government as well as subsequent grant to the third respondent are bad.”

Section 44 (a), (b) and (c) of the Land Use Act which relates to the service of Notice provides: _

“Any notice required by this Act to be served on any person shall be effectively served on him –

(a) By delivering it to the person or who it is to be served or

(b) By leaving it at the usual or last known place of abode or

(c) By sending it in a prepaid registered letter addressed to that person at his usual or last known place of abode.”

I agree with the view of Salami JCA that the respondents failed to comply with the provisions of the Act going by the evidence before the trial court. If any service was done at all, it was done in violation, again, of the provisions of Section 28 (6) of the Act which read:

“The Revocation of a Right of Occupancy shall be signified under the hand of a public officer duly authorised in that behalf by the Governor and notice thereof shall be given to the holder.” (Underlining mine for emphasis)

The evidence on record shows that no compensation was paid to the appellants. The 1st, 2nd and 3rd respondents have cited the decision in LAWSON V. AJIBULU (1991) 6 NWLR (pt. 195) 44, the principles enunciated in that case is inter alia that where a parcel of land is not property acquired for public purpose, the acquisition is invalid notwithstanding that

(1) there was a lapse of time between the date of acquisition and the transfer of land to a third party

(2) that the parcel of land was only a small portion of a larger parcel of land so acquired (as in the instant case), since the law in matters of acquisition does not concern itself with the smallness or largeness of the land acquired by the Government..

What is important is that if there has to be a compulsory acquisition of land, it must be done in accordance with the law, that is to say, that the acquisition must be for public purpose of the State.

Certainly the transfer or grant of the land in dispute to the 3rd respondent can never be construed for public purpose nor is it for the overriding interest of the public. For all I have been saying, Issues Nos. 1, 2, 3 and 4 in the appellants brief are answered in the negative. Issue No. 1 in the brief of the 1st and 2nd respondents, having regard to what I have said above is Non Sequitur. Issues No. 2, 3 and 4 therein are resolved against them (1st and 2nd respondents). Issues Nos. 2, 3 and 4 in the brief of the 3rd respondents (Issue No. 1 having been withdrawn) are answered in the negative; they are resolved against the 3rd respondent.

In the meantime, it is my judgment that the appeal is meritorious and it is accordingly allowed.

I shall now proceed to the cross-appeal of the 1st and 2nd respondents and that of the 3rd respondent – the theme of both of which is against that part of the decision of the court below in which the court below struck out the issue of non-proof of title to the land in dispute by the appellants prior to the Land Use Act. I have said it in this judgment that from the reliefs claimed, the issue of title does not arise in this case. I have said above that the appellants, based Upon the materials before the court were holders or occupiers of land and by virtue of that, they had the land vested in them and were entitled to enjoy the rights and privileges on the land subject to the Land Use Act. They have by their pleadings satisfied the requirements of the law. A proper and valid acquisition of their land must be subject to strict compliance with the relevant provisions of the Land Use Act as to acquisition of land. That I have said the cross-appellants have failed to do. The cross-appeals of the 1st, 2nd and 3rd respondents are, consequently, adjudged by me to be unmeritorious.

In the final analysis, the appeal having succeeded the judgment of the trial court including the cost awarded and the majority judgment of the court below including the costs awarded are hereby set aside. I affirm the dissenting judgment. The plaintiffs/appellants are entitled to all the reliefs claimed in paragraph 14 of their statement of claim dated 14th August 1990. The appellants are entitled to the costs of this appeal which I assess in their favour at N50, 000.00 against each set of the 1st and 2nd respondents jointly and the 3rd respondent separately.

The cross-appeals of the 1st and 2nd cross-appellants jointly and the 3rd respondent separately being unmeritorious are hereby dismissed with costs of N50, 000.00 against the 1st and 2nd cross-appellants jointly and costs of N50,000.00 against the 3rd respondent separately; both costs being in favour of the plaintiffs/appellants/cross-respondents.

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SC.29/2000

Feed And Food Farms (Nigeria) Ltd V. Nigerian National Petroleum Corporation (2009)

LAWGLOBAL HUB Lead Judgment Report

NIKI TOBI, J.S.C

Oil pipelines were constructed by the respondent on or adjoining the appellant’s factory premises. The appellant regarded the act as illegal. Efforts by the appellant to make the respondent to remove the structures were rebuffed. The appellant sued the respondent without giving the statutory pre-action notice under section 12(2) of the NNPC Act, 1977, the appellant asked for three declaratory reliefs and a relief on compensation for the sum of N20,000,000.00.

The learned trial Judge gave appellant judgment as at page 138 of the record. On appeal to the Court of Appeal, that court held that the jurisdiction of the High Court was ousted by the failure of the appellant to give pre-action notice. The Court of Appeal also dismissed the award of damages by the learned trial Judge.

Dissatisfied, the appellant has come to this court. So too the respondent by way of cross appeal. Briefs were filed and duly exchanged. Appellant formulated the following four issues for determination:

“1. Whether the right to be served with a pre-action notice under the mandatory provisions of S.11(2) of NNPC Act could, as a matter of law, be waived by the respondent NNPC, and if so, whether in the circumstances of this case, the respondent NNPC could be said to have so waived that right.

2. Whether the failure of the Court of Appeal to rule on the constitutionality or otherwise of the application of s.11 (2) NNPC Act to the peculiar facts of this suit was justified, and if not, whether the Supreme Court can hold that the application of s.11 (2) NNPC Act, in the circumstances of this suit, would violate the provisions of ss.6 (6) and 36(1) of the 1999 Constitution and similar provisions of the 1979 Constitution of the Federal Republic of Nigeria.
3. Whether the Court of Appeal was justified in dismissing the award of damages made in favor of the appellant (plaintiff) in the trial court.
4. Whether, in the circumstances of this case, the Supreme Court can hold that the Court of Appeal would have been justified in deciding that the respondent’s Notice of Appeal, Additional Grounds of Appeal and Appellant’s Brief of Argument in the lower court were incompetent in law and, on that basis strike out the appeal in the lower court.”

The respondent also formulated four issues for determination as follows:

“i. Whether the Court of Appeal was not right in holding that the failure of the appellant to issue a pre-action notice is a jurisdictional issue which robbed a trial court of its jurisdiction to the respondent before instituting the suit.

ii. Whether there was a Ground of Appeal upon which an issue for determination on the issue of the constitutionality or otherwise of the application of section 11(2) of the NNPC Act, 1977 was submitted for consideration by the appellant.

iii. Whether the Court of Appeal was not right in setting aside the award of damages made in favor of the appellant in the absence of any legal justification.

iv. Whether the respondent’s Notice of Appeal, Additional Grounds of Appeal and the Amended Appellant’s Brief of Argument filed in the Court of Appeal were not competent.”

The respondent, as cross appellant, formulated the following two issues for determination of the cross appeal:

“i. Whether having held that the trial court had no jurisdiction and the entire trial and judgment a nullity, the Court of Appeal was right to have proceeded to consider other issues in the appeal.

ii. Whether the Court of Appeal was right in holding that the declarations made in favor of the appellant could not be faulted in the absence of any evidence to justify same by the trial court.”

Learned Senior Advocate for the appellant, Mr. Robert Clarke, submitted on Issue No.1 that the decision of this court in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (2002) 12 SCNJ 1 unequivocally establishes a principle that the right to be served with a pre-action notice given under any statute can be waived by the beneficiary. Learned counsel disagreed with the Court of Appeal which held that there was a conflict between Mobil producing Nigeria Unlimited v. Lagos State Environmental Protection Agency and the case of Captain Amadi v. NNPC (2000) 5 SCNJ 1 which the court followed. He pointed out that there was no question or issue of waiver in Captain Amadi. Counsel also relied on Katsina Local Authority v. Makudawa (1971) 7 NSCC 119 and Eze v. Okechukwu (2002) 12 SCNJ 258 at 272.

Learned counsel relied heavily on Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency and urged the court to follow the decision as the respondent could and did waive its rights. Learned Senior Advocate submitted on Issue No.2 that the failure of the Court of Appeal to consider the submissions of the appellant on the constitutionality or otherwise of section 12(2) of the NNPC Act did not help the case of the respondent. He argued that if the Court of Appeal had found the submission to be valid, judgment could have been given in favor of the appellant. He cited Onifade v. Olayiwola (1990) 7 NWLR (pt. 161) 130 Citing Ozibe v. Chief Alobe (1977) 7 SC 11; Oke v. Nwagbuinya (2001) 1 SCNJ 157 at 173; Ukatta v. Ndinaezi (1997) 4 SCNJ 117 at 136; Global Transport v. Free Ent. Nig. Ltd. (2001) 2 SCNJ 224 and 7Up Bottling Co. Ltd. V. Abiola and Sons Bottling Co. Ltd. (2001) 6 SCNJ 18, learned Senior Advocate contended that the Court of Appeal had a duty to consider the submission on the constitutionality or otherwise of section 12(2) of the NNPC Act.

On Issue No.3, learned Senior Advocate submitted that Grounds 7 and 8 of the Grounds of Appeal did not support the decision of the Court of Appeal on the issue of damages. The only ground which dealt with the issue of damages was Ground 5. As the ground was not argued, it must be taken as abandoned. He cited Nasiru v. State (1999) 1 SCNJ 83; Comex v. Arab Bank (1997) 4 SCNJ 38 at 82; Hambe v. Hueze (2001) 5 SCNJ 1; Oshodi v. Eyifunmi (2000) 7 SCNJ 295 at 323; Osolu v. Osolu (2003) 6 SCNJ 102 at 125; Olorunfemi v. Asho (1991) SCNJ 1 at 9; Eguamwense v. Amaohizemwen (1993) 9 NWLR (Pt. 315) at 20 and Labode v. Otubu (2001) 3 SCNJ 1 at 25.

Learned Senior Advocate submitted on Issue No.4 that the Supreme Court, in the circumstances, can hold that the Court of Appeal was justified in deciding that the respondent’s Notice of Appeal, Additional Grounds of Appeal and Appellant’s Brief of Argument in the Court of Appeal were incompetent in law and on that basis, strike out the appeal in the Court of Appeal. He cited Seric v. Union Bank (2000) 12 SCNJ 184; Mill v. Alesinloye (2000) 4 SCNJ 214; Nkwocha v. Governor of Anambra State (1984) 6 SC 302; Korode v. Adelokun (2001) 7 SCNJ 370; Osinufebi v. Saibu (1982) 7 SC 104; Ogbeide v. Onache (1988) 1 NWLR (Pt. 70) 320 and Nwokoro v. Onuma (1990) 3 NWLR (Pt. 136) 77. He urged the court to allow the appeal.

Learned counsel for the respondent, Mr. John Odubela, submitted on Issue No.1 that as the failure by the appellant to issue a pre-action notice affected the jurisdiction of the court, it cannot be waived by the respondent. He cited Attorney-General of Kano State v. Attorney-General of the Federation (2007) 6 NWLR (Pt. 1029) 164 at 181; Amadi v. NNPC (2000) 10 NWLR (Pt. 674) 76 at 107; Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 at 422; Bakare v. NRC (2007) 17 NWLR (Pt. 1064) 606 at 656; Menakaya v. Menakaya (2001) 9 SCNJ 1; Eboigbe v. NNPC 1(1994) 5 NWLR (Pt. 347) 649 and Ebodaghe v. Okoye (2005) All FWLR (Pt. 241) 200 at 214.

On Issue No.2, counsel called the attention of the court to both the notice of appeal and the additional grounds of appeal and submitted that there is no ground which complains about the constitutionality of the NNPC Act. He cited Owners MV Gongola Hope v. SC (Nig.) Ltd. (2007) 15 NWLR (Pt. 1056) 189 at 209 and Omo v. JSC Delta State (2000) 12 NWLR (Pt. 682) 444 at 454. Relying on Amadi v. NNPC (2000) 10 NWLR (PI. 674) 76 at 107 and Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) at 567, counsel argued that pre-action notice is recognized procedurally and therefore not unconstitutional.

Counsel submitted on Issue No.3 that the award of damages by the trial Judge was not justified as there was no legal basis for which the damages were awarded. He contended that the three sets of general/special damages granted were not specifically pleaded with their particulars. He specifically questioned the award of N22,740,000.00, for cost of building a new factory; N2,160,000.00 cost of dismantling machinery and equipment and re-installation; N40,500,000.00 as special damages for loss of factory for nine months and N2,000,000.00 general damages without any legal basis. He cited X. S Nig. Ltd. V. Taisei (WA) Ltd. (2006) 15 NWLR (Pt. 1003) 533 at 551; Saleh v. B. O. N. Ltd (2006) 6 NWLR (Pt. 976) 316 at 333. Counsel urged the court to hold that the Court of Appeal was right in setting aside the award of damages.

Counsel submitted on Issue No.4 that the respondent’s notice of appeal, the additional grounds of appeal and the appellant’s brief of argument filed in the Court of Appeal are competent having been filed within time. He relied on Bhojsons Plc v. Daniel-Kalio (2006) 5 NWLR (Pt. 973) 330 and Seric v. Union Bank (2000) (2006) 5 NWLR (Pt. 973) 330. He urged the court to dismiss the appeal.

Arguing Issue No. 1 of the cross appeal, learned counsel argued that the Court of Appeal having held that the trial court had no jurisdiction and that the entire trial and judgment was a nullity, the court had no right to have proceeded to consider other issues in the appeal. He cited the following cases on jurisdiction: Lawal v. Oke (2001) 7 NWLR (PI. 711) 88 at 115; Osadebay v. Attorney-General of Bendel State (1991) 1 NWLR (Pt. 169) 525 at 572; Gafar v. Governor of Kwara State (2007) 4 NWLR (Pt. 1024) 375 at 403; Gombe v PW (Nig) Ltd. (1995) 6 NWLR (Pt. 402) 402 at 418-419; Okolo v. UBN Ltd. (2004) 3 NWLR (Pt. 859) 87 at 110; Obi v. INEC (2007) 11 NWLR (Pt. 1046) 565 at 629 and UAC v. Mcfoy (1961) All ER 1169.

Learned counsel submitted on Issue No. 2 that the Court of Appeal had no jurisdiction to have proceeded to consider the issue of declaratory reliefs having struck out the suit for lack of jurisdiction. Citing Alao v. Akano (2005) All FWLR (Pt. 264) 799 at 808 and Kwajaffa v. BON Ltd (2004) 13 NWLR (Pt. 889) 146 at 172, counsel urged the court to allow the cross appeal and dismiss the main appeal.

Learned counsel for the appellant, in his reply brief, submitted on the respondent’s Issue No. 2 that the respondent never canvassed the issue of the provisions of section 12(2) of the NNPC Act as that issue was raised for the first time at the Court of Appeal by leave. Counsel submitted that the appellant as the respondent at the Court of Appeal was perfectly entitled to raise the issue of the constitutionality of the provisions of the NNPC Act to support its argument on the provisions of section 12(2) of the Act. He cited INEC v. Musa (2003) 3 NWLR (Pt. 806) 72.

In his reply to Issue No. 3 of the respondent’s brief, learned counsel contended that at the trial, the appellant, particularly through PW1, led evidence to show particular losses which were accurately measured before the trial.

I begin with the first issue and it is whether section 12(2) of the NNPC Act could, as a matter of law, be waived by the respondent. Learned counsel for the appellant relied heavily on the decision of this court in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency. In that case, this court held, per Ayoola, JSC, that “The right to be served with a pre-action notice does not fall within the category of rights which cannot be waived.” Learned counsel for the respondent argued to the contrary that as the requirement of pre-action notice affects the jurisdiction of the court, it cannot be waived by a party. He cited a number of cases.

I agree with the decision of this court in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency that the right to be served with a pre-action notice does not fall within the category of rights which cannot be waived. I do not think it is correct law to say that a party cannot waive his right in all matters affecting jurisdiction of the court. I do not want to go that far or to that extreme. On the contrary, it is ideal to consider each case on its own merits and not as a blanket principle of law to be applied across the board to all cases affecting or relating to jurisdiction. Ayoola, JSC, in my humble view, came out brilliantly in Mobil when he made the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my view, for purposes of waiver, matters affecting the jurisdiction of the court should be categorized into two areas or compartments. These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the party. While the former cannot in law be waived, the latter can be waived in law. An example of the former is filing an action in a court that has no jurisdiction to hear the matter. For example, filing an action in the High Court to determine a dispute between two states in the Federation of Nigeria. Certainly, a State High Court has no jurisdiction and as the issue involves a public right, none of the parties has the competence to waive it.

I come to the second one. A good example is pre-action notice. In my view, service of pre-action notice is a personal, private or domestic right of the party to be served. He is the beneficiary of the service and so can waive it at will or on his terms. The right is not shared by members of the public or the public at large but is one specific to the party. If he decides to respond to the writ without service on him, he has the right to do so and the courts cannot hold that as the issue affects jurisdiction, he cannot waive his right to be served. In my view, where an issue of jurisdiction, like the issuance of pre-action notice is domestic to the parties, it can be waived at the pleasure and choice of the beneficiary. I seem to be repeating myself. I need the repetition.

Learned counsel for the respondent cited a number of cases. I should examine them. In Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 counsel sought leave to file and argue additional grounds of appeal on the issue of competence and jurisdiction of the trial court to hear the matter on the ground that the originating summons was signed by counsel and not by the trial Judge as prescribed by the rules of court. The Court of Appeal granted the application and dismissed the appeal. Dismissing the appeal, this court held that a breach of a rule of practice can only render a proceeding an irregularity and not a nullity. Such irregular proceeding can only be set aside if the party affected acted timeously and before taking a fresh step since discovering the irregularity. I do not see how the case is helpful to the respondent. There is some element of waiver, as in this appeal. In Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649, this court held that section 12(1) and (2) of the NNPC Act, 1977 has the same effect as a statute of limitation and that a statute of limitation begins to run from the moment the cause of action arose. Again, I do not see the relevance of the case in this appeal. The issue in this appeal is not statute of limitation but giving pre-action notice. Although this court held in Amadi v. NNPC 1 (2000) 10 NWLR (Pt. 674) 76 that section 11(2) of the NNPC Act affords absolute protection to the corporation, the case did not involve waiver, as in this appeal. In Menakaya v. Menakaya (2001) 16 NWLR 6 (Pt. 738) 203, this court held that a mandatory statutory provision directing a procedure to be followed in the performance of any duty is not a personal right to be waived. The facts of Menakaya are different from those of this case, and so cannot be used to justify the position taken by the respondent. That apart, I am not quite sure whether this court did not put the position too wide. I am inclined to that view in the light of the later decision of this court in Mobil. Finally in Bakare v. Nigerian Railways Corporation (2007) 17 NWLR (pt. 1064) 606 where this court held that an action can only be properly constituted if pre-action notice is given in relevant cases, there was no issue of waiver. I have taken the pains to examine the cases relied upon by counsel for the respondent in order to make the point clearly that the cases are inapposite. It is my humble view that section 12(2) of the NNPC Act could be waived in law and that the respondent so waived the right in this case.

I now take the issue of the award of damages. The Court of Appeal, in rejecting the award of damages by the learned trial Judge, said at pages 243 and 244 of the record:

“It must be borne in mind, that apart from the said letter Exh. ‘B’ – the letter of appellants to the respondents, there is no evidence that they did any other overt act of either proceeding to lay the new pipeline or even enter into the premises or property of the respondents or to evict, eject the respondents or dismantle any of their property. Perhaps, see also the evidence of the PW1 at page 58. In my humble view, the claims were anticipatory and based purely on speculation and conjecture. Exh. ‘C’ – the letter from the Ministry of Works, Housing and Land Development, Bauchi State, warned the appellants that the appellants “may have to take full responsibility for all eventualities.”

They gave therein, their reason for saying so.

“Without much ado, the judgment in respect of the said declarations, in the circumstances, cannot be faulted. But the said awards for various sums, with respect, have no basis and cannot be justified. The same are accordingly set aside by me. My answer to the said issue No. 4.01 of the appellants is certainly in the negative.”

In paragraph 24(d) of the amended statement of claim, the appellant claimed the following as compensation:

“(d) N200,000,000.00 compensation made up as follows:

(i) Cost of building a new factory and acquire land….. N22,750,000.00

(ii) Cost of dismantling machinery & equipments and

recreation by German Engineers including labour

and transport… .. N15,000.00

(iii) Loss of use of factory for 18 months N78,750,000.00

(iv) Overhead costs, i.e. salaries for local and

expatriate staff… .. N3,500,000.00

(v) N55,000,000.00 special damages

(vi) N25,000,000.00 general damages.”

PW4, a Consultant Chemical ProChemical Engineer said in his evidence-in-chief at page 64 of the record:

“The NNPC has a right of way and this right of way is 25 metres with the pipeline at the centre. Considering the positioning of the pipeline, this right of way was not met in environment in this case. The existing pipeline is 2 metres from the plant premises. The new pipeline was planned to pass through the plant premises. But in construction a bend has been negotiated and this bend was negotiated within the interval of the plant i.e. 68 metres. Within this interval 4 bends were negotiated to avoid the plant. No matter how highly fortified a pipeline is it wears down with erosion. Erosion is the gradual removal of the lining of the conveying pipeline due to attention & erosion. At this point where these bends were negotiated 3 forces were in plane. The force due to momentum. The force due to pressure bulb up and the gravitational force. This erosion unavoidably bends at the bends and could be easily compared with an automobile negotiating a sharp bend. There are several cases of spillage in this country, e.g. Kachia, about 16.5 kilometres at Malele precisely. It took the pollution and control centre more than a month to eradicate the leakage and spillage up. At the end of the catril exercise 50,000 cubic metres of petroleum product was recovered. My advice is that this hazard cases cannot be visualized in this court room to see why either the NNPC should go or the plant should go, since the common slogan in risk management is avoid what you cannot contain & contain what you cannot avoid. Since the NNPC has insisted to exert on this enuiment full compensation should be paid to my CV.”

Reacting to the evidence of PW4, the learned trial Judge said at page 130 of the record:

“The evidence of PW4 which I accept has not been controverted or challenged in any material particular. Clearly it establishes that the plaintiff can no longer continue using its land for the purpose which it obtained it for that is for industrial purposes, thereby the act of the defendant endangers the plaintiff’s existence in the land, depriving him of peaceful enjoyment of the land, thus entitling the plaintiff to award of damages.”

Contrary to the above, the Court of Appeal held that apart from Exhibit B, there is no evidence that the respondent lay new pipelines or even enter into the premises of the appellant. With the greatest respect, I do not agree with the Court of Appeal. On the contrary, I entirely agree with the learned trial Judge that the evidence of PW4 clearly established that the appellant “can no longer continue using its land for the purposes which it obtained it for, that is, for industrial purposes.” In my view, the appellant suffered damages. It is a different matter whether special damages were proved. That I will take now.

On the issue of special damages, the learned trial Judge relied on the evidence of PW1. He said at pages 136 and 137 of the record:

“Evidence establishing claim for special damage. PW1 in his evidence stated that the plaintiff company was valued in June, 1993 by Bamishe Associates in Kano, it was valued at N100,000,000.00, valuation report and admitted on the Assets of Feed and Food Farms (Nig.) Ltd, covered by C of O No. BA/33/04 tendered and admitted – Exhibit A.

Valuation of Land and Building in Exhibit A. ‘We are of the considered opinion that open market capital value of the leasehold interest in the property located at Bauchi industrial layout covered by C of O BA/33104 as described in this report dated 4th June, 1993 was in the sum of N32,000,000.00.’ This piece of evidence has not been contradicted, controverted or challenged. And it is a credible and admissible evidence. But the plaintiff in the statement of claim claimed –

(I) Cost of building a new factory and acquire land = N22, 750,000.00. As I cannot give the plaintiff more than what he claimed. I hereby award the plaintiff N22, 750,000.00 for land & building.

Plaintiff claimed

(ii) – cost of dismantling, machinery & equipments. N15, 000,000.00. pw1 in his evidence stated that he was involved with the erection or installation of the machinery with two german engineers. He stated that they were paid for their services; each one of them their charges was 100DM in addition with 500M for each one as allowance per day. They provided accommodation and a car. Witness said he cannot recall the CM exchange rate for the dollar is in the rate of N10.00 for one dollar. The work fee or charge of 100DM + 50DM allowance a day, gives 150DM per day, per Engineer. For 6 days a week this amounts to 6 x 150 = 900DM per week x 24 = 21,600DM. The amount for 9 months will give a total fee of 21,600 x 9 = 194,400DM for one engineer for two engineers therefore we then have a total of 184,400DM x 2 = 388,800 DM. I was forced to using the current exchange rate of $ = DM which is $1 to 1.8DM. 388,800 DM /1.8 give = $216,000. Converting the latter to Naira with exchange rate of $1 = N10.00 gives $216,000 x 10 = N2, 160,000. I hereby award the plaintiff N 2, 160,000.00 cost of dismantling machinery & equipment & re-installation. There is no material from which I can considered quantify (sic) the labour & transport, inclusive in the claim.

Plaintiff also claimed

(iii) Loss of use of factory for 18 months = N78, 750,000.00. PW1 in his evidence stated that the business they carry on the piece of landover when in full production, i.e. depending on the market price is N15, 000,000.00 per month. The witness was not cross examined on the basis that his claim was excessive. I therefore accept the claim made out by PW1.

The figure given in evidence was not stated to be gross or net income. I therefore proceed to make reasonable deductions in arriving at an estimated net profit. Net profit after deductions on raw materials, salaries, running costs and other overhead cost is estimated at 30% of N15, 000,000.00. This works out at N4.5 million per month Therefore loss of use of factory for nine months (three months for dismantling of machine and 6 (six) months for reinstallation at new premises) will amount to N4.5 million x 9 = N40.5 million. I hereby award plaintiff the sum of N40, 500,000.00 for loss of use of factory for nine months which was proved. (iv) Plaintiff claimed overhead cost, i.e. salaries for local & expatriate staff – N3,750,000.00 on expatriate staff this has already been taken care of in item (ii) above, on local staff salaries. I am not supplied with materials with which I can consider the salaries of local staff. (v) Plaintiff claimed N55, 000,000.00 special damages. I am of the view that items (i), (ii), (iii) above are items of special damages – To consider this item will now amount to double compensation.”

PW1, the Director of the appellant, gave very detailed evidence of facts and figures from pages 51, 52, 53, 55, 57 and 60 of the Record. He tendered Exhibits A, B, C, D, E, F, G, H and I, which were admitted by the respondent without objection. I think I should quote some portions of the evidence of the witness.

On the value of the appellant, witness said at page 52 of the Record:

“The company has been valued in June 1993 by Bamishe Associates in Kana. It was valued at N100, 000,000.00.”

On the business of the appellant on the land which was damaged by the pipelines of the respondent, witness said inter-alia at page 56 of the Record:

“The business I carry on this piece of land is flour mill industry. I commenced the milling business in 1991. We process maize and wheat into flour grits and also offers for animal feeding. Approximately my monthly turnover when we are in full production and depending on the market prices is approximately N15 million per month. The wheat flour in the market now the company price is N1, 200.00 per 50 kilo bag & we are able to process 20,000 bags a month. For maize the company price now is N335.00 per 50 kilo bag and we can produce 20,000 bags a month. This is apart from the offer which comes during the process – which can be around 4,000 bags and the actual price now is N80.000 per 50 kilo bag. We have so many customers some of them in Kano, Maiduguri and in Bauchi.”

On payment of two Germans to put the Factory to working condition, witness said at pages 56 and 57 of the Record:

“I was involved with the erection or installation of the machinery with two Germans. It took us six months to put the factory to working condition. The two Germans are German nationals and they came from Germany and they are……………. I specifically brought them over from Germany for the purpose of installing the machinery. We paid them for their service for each one of them. Their charge is 100 Dutch Mark in addition of 50 Dutch Mark for each one as allowance, per day. We provide accommodation during this period and a car. Every day we work for 10 hrs during the installation period. From Monday-Friday 10 hrs every day on Saturday 7 hrs I cannot recall the Dutch Marks exchange rate. The dollar installation will be the same period 6 months, if we want to dismantle and will take us 3 months. The two German engineers have to be in during the dismantling period. The two German experts are called Scheneider & the other Gierzirck from my knowledge as an Engineer we would use the same parts if we take care very well during dismantling, normally we bring some spare parts if we want to carry on the work of dismantling and erection again and some special tools.”

Cumulatively, ending his evidence at page 59 of the Record, witness said:

“We are in court now because in order to leave the place and to establish the business in safer place and leave the land as NNPC asks of us to do. We are asking the Hon. Court that the company should have the right to compensation to enable us re-establish our business in a safe place. Our claim is that we are the owner of the land and that NNPC action is illegal and if we have to move from the land the NNPC will pay the Coy. a compensation for that land of N200, 000,000. In a break down is as follows: – The cost of Building in a new land for the machines and make the compound as it is now. The cost of building is N22, 750,000.00. The cost of dismantling, and re-erection of the machines, with the transports and other handling equipments N15, 000,000. The Loss of Use of the factory during 18 months N78,750,000,000.The Overhead expenses during the 18 months for Technical Skill (Nigerians & Expatriates N3,500,000. Special Damages of N55,000,000. General Damages of N25,000,000.”

With the above plethora of evidence, I do not agree with the Court of Appeal that there was no evidence in proof of special damages on the alleged ground that there was no trespass. It is clear from the totality of the evidence that there was trespass on the land of the appellant by the respondent, a trespass which caused damages; damages which the appellant has proved specifically. The learned trial Judge correctly refused items (v) on special damages of N55,000,000 on the ground that it will amount to double compensation. On the issue of trespass, I see Exhibit B as the warning bell, which finally resulted or blossomed, from the stand point of the respondent, to trespass. The bottled hostilities in Exhibit B automatically followed, to the detriment of the appellant, giving rise to the trespass. I am therefore not with the Court of Appeal that there was no evidence of trespass.

Let me quickly take the Issue No. 1 formulated by the cross appellant. Any court below the Supreme Court is in order to take, in the alternative, the merits of the matter after coming to the conclusion that it has no jurisdiction to hear the matter. This is to make sure that the case is not further delayed if the appellant court comes to the conclusion that the ruling on lack of jurisdiction is wrong. Accordingly, I am of the view that it is good wisdom on the part of the Court of Appeal to take the other issues in the appeal after coming to the conclusion that it had no jurisdiction to hear the matter. The cases cited by learned counsel for the cross appellant are inapposite. I do not think I will take the second issue, as it is related to the first issue. This is clear from the submission in paragraph 3.21, page 27 of the cross-appellant’s brief of argument.

I think I have resolved the live issues in this appeal. I do not want to take the other two issues of constitutionality of pre-action notice and the Notice of Appeal, Additional Ground of Appeal as they relate to the Appellant’s Amended Brief, as it will serve no useful purpose. In sum, the appeal is allowed. The judgment of the Court of Appeal is set aside. The judgment of the High Court is restored. I award N50,000.00 costs to the appellant.

SC.244/2003

Star Paper Mill Ltd & Anor V. Bashiru Adetunji & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

This appeal involves the determination of whether the court of appeal, hereinafter called the lower court, was right in striking out an appeal, when the parties have amicably resolved the dispute between them and filed terms of settlement before the court.

The plaintiffs who are the respondents before this court claimed before the High Court of Justice, Lagos among others, declaration that the lease granted in favour of Late Chief Ole Kanu Oko by Alhaji Bismyu Lawal dated 14/8/1995 and registered as No 73 at page 73 in volume 1576 of the Land Registry, Lagos over a parcel of land situate, lying and being at 210 Ogungbesan Street Coker Village Iganmu and measuring one acre has been determined by reason of forfeiture.

Both parties filed and exchanged pleadings and called witnesses in support of their case. The trial Judge, after listening to both parties delivered his judgment in favour of the plaintiffs, and granted all the claims. The trial High Court held thus:-

“In the totality of evidence adduced by the plaintiffs and Defendants, this court finds as a fact that it has to declare that the lease granted in favour of Late Chief Ole Kalu Oko, by Alhaji Bisiriyu Lawal in respect of the said land had been, determined by reason of forfeiture for failure to pay rent which law require no statutory Notice before taking action for forfeiture in accordance with conveyance Act 1881 which is still applicable in Nigeria. Consequently, all the rights, interest and title in the said property has accordingly reverted back to the plaintiff’s family who are entitled to possession of the same.

With respect to counter-claim filed by the Defendants, there is no iota of evidence adduced to sustain the averments on the counter-claim, there is clear evidence of breach of the lease Agreement dated 14th of August, 1976 and of which, forfeiture of the lease was firmly supported by this court. Copies of statutory notices were served on the Defendant, even though not necessary, but they failed to find remedy to the breach within the period of 30 days given by the plaintiffs.

A declaration that the purported sublease in favour of the 1st defendant company is null and void as there was no document tendered to show any sublease to Defendants by anybody, whereas interest on land in law has to be in writing, if there is any at all, this could have been tendered, it is therefore resumed, if the document showing interest of the Defendants were tendered, this would be against the Defendants. Section 14 Evidence law refers).

As there was no document tendered by the Defendants for their holding of the said land in dispute, the Defendants could be rightly adjudged a trespasser ab initio.

The Defendants are in fact adjudged as trespassers on the land m dispute.

Therefore, it would be justified to order a perpetual injunction against the Defendants jointly and severally, their servants, agents and or privies from committing, any further acts of trespass on, the said land.

The counter-claimed filed by the Defendants is frivolous, and it is therefore dismissed”. See pp 126- 127 of the Record.

Being dissatisfied with trial court’s judgment, as stated above, the Defendants, appealed to the lower court. At the lower court the appellants filed their brief of argument. Before the respondents could file the respondents brief of argument, the parties have agreed to resolve the matter amicably, as a result of which a terms of settlement was filed before the lower court. The terms of settlement are reproduced hereunder:

TERMS OF SETTLEMENT

“The parties herein have mutually agreed to settle the dispute herein as follows:-

“That the appellants appeal herein be allowed as being meritorious.

That parties shall bear their respective costs.

That these terms of settlement be made the judgment of this Honourable Court.

Dated at Lagos the 17th day of July, 2001”.

At the hearing of the appeal on the 6/5/2002, the following happened:

“Okupe – makes settled terms filed on 3/10/01, wants them to be made the judgment of this court.

Court of Appeal struck out”.

It is against the Order of Striking Out the appeal simpliciter that the appellants have appealed to this Court.

The appellants filed their brief of argument while the respondents failed to file any brief. Since there is proof that the respondents were duly served with the hearing Notices the appeal was deemed ripe for hearing exparte, under Order 2 Rule 11 (3) of the SCR 1999.

The learned counsel to the appellants submitted in his brief that every Superior Court of record has the inherent power to enter consent judgment. He referred to the case of Woluchen vs. Wokoma (1974) 3 SC. P 153 at 163; and Idakwo and Anor vs. Iloka (1998) 3 NWLR cited section 16 of the Court of Appeal Act Cap 75 LFN 1990 and submitted that the lower court has the jurisdiction to make the terms of judgment the judgment of the Court.

It must be pointed out that it is one of the cardinal principles of our judicial system to allow parties to amicably resolve the disputes between them. By doing so, the otherwise hostile relationship between the parties would be amicably resolved and cemented. It is this amicable resolution of disputes by the parties that is called settlement. When the terms of such settlements are reduced into writing, it is now called ‘terms of settlement’, when the terms of settlement are filed they are called, and made the judgment of the court. It is then crystalised into ‘consent judgment’. When consent judgment is given, none of the parties has the right of appeal, except with the leave, of court. Hence, consent judgment, is a contract between the parties whereby rights are created between them in substitution for order of consideration of the abandonment of the claim or claims pending before the court. This is intended to put a stop to litigation between the parties just as such as a judgment which results from the decision of the court.

In the recent decision of this court in Race Auto Supply Company Limited & Ors vs Akibu (2006) 6 SCNJ 98 or (2006) 6 S.C p1 His Lordship Ogbuagu, JSC, at p17, defined what a consent judgment is as follows:-

“It is a judgment entered, pursuant to an agreement between the parties. See Woluchen vs Wokoma (1974) 3 SC 153 at 166. A consent thus by its nature, is first and foremost, a contractual agreement between the parties. Thus, a consent judgment constitutes a final judgment of the court and it is only appealable with the leave of the court. See Otunba Ojora vs Agip Oil Plc & Anor. (2005) 4 NWLR (Pt. 916) p.515.

Mohammed, JSC, in Race Supply Company Ltd vs Akibu (supra) stated the position beyond any doubt thus: –

“In line with this definition, where the parties before a court have agreed on how their dispute should be determined and ask the court to enter judgment by consent and in accordance with their terms of settlement and the court orders with their consent that a judgment be entered, the product is a consent judgment. In this regard it is necessary to point out that a consent judgment or order is as effective in law in respect of all the matters which are herein settled as any other judgment or order arrived at after the matters are fully fought out, to the end in a full trial. As Lord Herschel L.C. explained in the case of IN RE SOUTH AMERICA AND MEXICAN COMPANY EX PARTE BANK OF ENGLAND (1885) 1 CH. 37 at 50. “The truth is a judgment by consent is intended to put a stop to litigation between the parties just as much as is judgment which result from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment and were to allow question that were really involved’ to the action to be fought over again in a subsequent action”.

With due respect, I wish to add that terms of settlement does not on its own crystalise into consent judgment until the court enters it as its judgment. To my mind, the court has a discretion to enter terms of settlements as its judgment or not, particularly where terms of settlement are not ascertainable or the rights acquired or abandoned not clearly spelt out. This is particularly important in view of the fact that a term of settlement entered as a consent judgment has the force or sanction of a final judgment of the court. In the instant case, the terms of settlement are so vague, ambiguous and un-ascertainable to warrant a court to enter such terms as its judgment. For example, the first term – “that the appellants appeal herein be allowed as being meritorious” is not only vague but a violent challenge of the jurisdiction of the lower court.Parties cannot agree to hold that an appeal is meritorious or not, it is within the exclusive jurisdiction of the Court of Appeal. See Section 240 of the 1999 Constitution of the Federal Republic of Nigeria. The purported terms of settlement did not state out clearly the rights created or abandoned as it affects the subject matter. In fact no reference is made at all to the respondent which is the subject of dispute before the court. It is therefore my view that the terms of settlement in the case at hand are vague, nebulous, ambiguous and not capable of enforcement as it is a final judgment of a court; therefore the lower court was right in not accepting to enter it as its judgment.

However, since parties have shown their intention to resolve this matter amicably and in order to put an end to litigation I hereby order that this matter be sent back to the Court of Appeal, Lagos Division (court below) for hearing, and the parties shall put before that court terms of settlement that are capable of being enforced, with the acquired and abandoned rights clearly set out. Consequently, I set aside the court below order which struck out the appeal before it and in its place order that the appeal be retried before another panel of the lower court. Costs shall be in the cause.

---

SC.292/2002

Shell Petroleum Development Company Nigeria Limited V. Chief Tigbara Edamkue & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

F. OGBUAGU, J.S.C

At the trial court, there were two separate suits against the Defendant/Appellant. The first suit, was instituted by the 1st set of Plaintiffs/Respondents in Suit No. FHC/PH/84/94, while the second suit, was instituted by the 3rd set of Plaintiffs/Respondents in Suit No. FHC/PH/85/94. In both suits, the claims were/are for damages each of them suffered as a result of a serious explosion and spillage of crude oil from the Appellant’s Yorla Oil Field or station in the Khana Local Government Area of Ogoni land in Rivers State which occurred on the 31st July, 1994. Both suits were consolidated for trial by the trial court on 12th December, 1995. After hearing and addresses of the learned counsel for the parties, in my respectful view, the trial court, – Aina J. in a very well considered Judgment (spanning from pages 618 to 730 of the Records) delivered on 28th June, 1999, entered judgment in favour of the 1st and 3rd sets of Plaintiffs/Respondents. It/he granted their respective claims. The Appellant appealed to the Court of Appeal which affirmed the said Judgment of the trial court. Dissatisfied with the Judgment of the Court of Appeal, Port-Harcourt Division (hereinafter called the “court below”) delivered on 27th March, 2003 – per Akintan, JCA (as he then was), the Appellant has now, appealed to this Court.

I note that although the 2nd set of Plaintiffs were joined at their own instance by the trial court, the 1st set of Plaintiffs/Respondents, successfully, challenged the said joinder in an appeal to the court below which struck out their names. The decision striking out their names, is contained in the Judgment of the court below. The 2nd set of Plaintiffs therefore, are not a party to the instant appeal, as they have not appealed against the said decision of the court below striking out their names.

I also note that upon the dismissal of its appeal by the court below, the Appellant, pursuant to the Order of the court below that the Appellant should furnish a Bank Guarantee to secure the payment of the total judgment debt due to the Plaintiffs/Respondents in the event of the dismissal of its appeal to the court below, the Appellant, accordingly, furnished the Bank Guarantee from the Union Bank of Nigeria PLC. See pages 1216 to 1220 of the Records. Upon the dismissal of the said appeal, the Bank, duly paid the total judgment debt amounting to the sum of N225,806,601.00 to the Plaintiffs/Respondents. See the photo copy of the/its cheque dated 27th March, 2003 appearing at page 1222 of the Records.

The Appellant, in its/their Brief, have formulated four (4) issues for determination, namely,

“(i) Whether on the evidence before the Court in view of the fact that the Plaintiffs sued and claimed the authority so to do as representatives of the DUBORO Community in the first action and BAEN Community in the second action, it was proper for the trial Court to have entered judgment in favour of the Plaintiffs in each case;

(ii) Whether the Lower Court was right in finding that the Oil spillage which took place on 31st July,

1994, was as a result of the negligence, default or other wrongful action on the part of the Defendant/Appellant as contended by the Plaintiff/Respondent and not as a result of the deliberate act of an unknown person as contended by the Defendant/Appellant.

(iii) Whether the Lower Court was right in entering judgment in favour of the Plaintiffs when they had not established communal ownership of the asset injuriously affected by the spillage;

(iv) Whether there was credible evidence before the Court to sustain the award of damages by the Lower Court”.

[the underlining mine]

On its part, the 1st and 3rd sets of Plaintiffs/Respondents, have formulated two issues for determination. They read as follows:

“(1) Whether the Court of Appeal was justified in law when it held that the trial court had jurisdiction to amend the capacities in which the actions at the trial court were brought (grounds 1 and 2 of the grounds of appeal).

(2) Whether the Court of Appeal was justified when it held that the Defendants/Appellants was liable for the claims of the Plaintiffs/Respondents under the doctrine of res ipsa loquitor and or the rule in Rylands v. Fletcher, ground 3 of the grounds of appeal”

When this appeal came up for hearing on 28th April, 2009, the learned leading Counsel for the Appellant – Williams, Esq. (SAN) adopted their Brief. He referred to some pages of the Records and their List of Authorities. He specifically, referred to their issue (i) and submitted that the appeal should and ought to be allowed on this issue. He referred to the issue of damages and submitted that the Estate Surveyor is/was not competent to give expert evidence on it. He finally urged the Court, to allow the appeal.

The learned counsel for the 1st and 3rd sets of Plaintiffs/Respondents-

Ugboduma, Esqr, also adopted their Brief. As to the said issue (i) of the Appellant, which he stated is covered at page 6 of the Appellant’s Brief, he submitted that it is not covered by any of its ground of appeal and that in fact, all the issues formulated by the Appellant, are not supported by the grounds of appeal at pages 1145 to 1146 in Vol. 2 of the Records. He finally urged the Court to dismiss the appeal.

Thereafter, Judgment was reserved till to-day. I note that the Appellant, did not state or disclose under which ground or grounds of appeal, the said issues were/are formulated. It is now firmly settled that the general rule, is that issue or issues for determination, must relate to or be derived from a ground or grounds of appeal, otherwise, it they will be incompetent and must therefore, be discountenanced or struck out. See the cases of Alhaji Animashaun v. University College Hospital (1996) 12 SCNJ 179 @ 184; Chief Agbaisi & 3 Ors. v. Ebikorefe & ors. (1997) 4 NWLR (Pt.502) 630, (1997) 4 SCNJ 147 @ 157; Biocon Agrochemicals (Nig.) Ltd & 3 ors.v. Kudu Holding (Pry) Ltd & anor. (2000) 12 SCNJ 272 @ 285; Adah v. Adah (2001) 2SCNJ 90 @ 97 and Adelesola & 4 ors. v. Akinola & 3 ors. (2004) 12 NWLR (pt,887) 295; (2004) 5 SCNJ 235 @ 246 just to mention but a few. However, since the 1st and 3rdsets of Plaintiffs/Respondents, have stated under which ground or grounds their own issues have been formulated, I will, in the interest of justice, ignore the error or omission by the Appellant in not doing the same. This is notwithstanding that the Plaintiffs/Respondents, have submitted in paragraph 2.0 page 4 of their said Brief, “that those issues do not arise for determination in this appeal”

A reading of Issue (i) of the Appellant, by me, puts me in no doubt that the said issue, is grossly incompetent. This is because, on decided authorities, this Court, does not deal directly, with appeals or complaints or facts or issues arising or emanating from the High Court which includes the Federal High Court. See Section 233(1) of the Constitution of the Federal Republic of Nigeria, 1999 and the cases of Harriman v. Chief Harriman (1987) 3 NWLR (pt.60) 244 @ 217; (1987) 6 SCNJ 218; Chief Olatunde & anor. v. Abidogun & anor. (2001) 12 SCNJ 225 @ 234 and Engr. Agbi v. Barrister Alabi (2004) 6 NWLR

(pt.868) 78 @ 143 – 144; (2004) 2 SCNJ 1 @ 52. In the result the said issue (i) together with the arguments in respect thereof, is discountenanced by me and in fact, being incompetent, it is accordingly struck out.

I will therefore, take first, issue (1) of the 1st and 3rd sets of Plaintiffs/Respondents. The court below at page 1113 of the Records, referred to the provisions of Order 32 of the Federal High Court (Civil Procedure) Rules (hereinafter called “the Rules”) which it reproduced and then stated inter alia as follows:

“I believe that the earlier order made ex parte by Sanyaolu, J formed part of the proceedings in the case before Aina, J who later assumed jurisdiction in the case. He (Aina J) therefore has the power to entertain the application to amend the said earlier order in the proceeding as requested in the motion filed by the plaintiffs to that end”. In order to show that the court below was right and justified in its holding, I too will reproduce the provision of the said Rules. It reads as follows:

“The court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceedings to be amended or not and for the purpose of determining in the existing suit the real questions or question in controversy between the parties, shall be so made…..”.

This Rule is so clear and unambiguous, that it needs no further interpretation. This provision, is similar to the provision in some other High Court Rules of various jurisdictions in Nigeria and has, received judicial support in many decided authorities. See the cases of Amadi v. Thomas Aplin & Co. Ltd (1972) 1 All NLR (pt.1) 409; Okeowo v. Migliore (1979) 11 S.C 138; Osho v. Anor. v. Michael Ape (1998) 6 SCNJ. 139 @ 151 – 152; Alsthom SA & anor. v. Chief (Dr.) Saraki (2000) 4 SCNJ. 249; (2000) 11 S.C 1 just to mention but a few.

As a matter of fact, a substitution, is held as an amendment. See the case of Alhaji (Chief) Agbabiaka v. Saidu & 11 ors. (1998) 7 SCNJ. 305. Indeed, an amendment, relates back to the date of the suit, process or document as amended. See the case of Oduwaiye v. Oresanya (1968) NMLR 430 and Vulcan Gases Ltd v. Gesellschaft Fur Industries Gasvernwertung A.G. (G.IV.) (2001) 9 NWLR (Pt…. )610; (2001) 5 SCNJ. 55 @ 76.

I am aware that there is only one High Court in a State with Judicial Divisions, created for administrative convenience or purposes. The Judges of the Federal High Court, sit in different States or separate courts as in the Federal Capital Territory. Both courts, are bound by one Statutory Rule of Court. See the cases of S. O. Ukpai v. Okoro & ors. (1983) 2 S.C NLR 380 @ 388. 390, 391; Skenconsult Nig. Ltd. v. Ukey (1981) 1 S.C. 6 interpreting Section 234 of the 1979 Constitution, Egbo v. Laguma (1988) 2 NWLR (pt.80) 109 and Chief Egbo & 16 ors. v. Chief Agbara & 4 ors. (1997) 1 NWLR (pt.481J 292; (1997) 1 SCNJ. 91 – per Iguh, JSC.

As regards representation, in the case of Afolabi & ors. v. Adekunle & anor.(1983) 2 SCNLR 141; (1983) 8 Soc. 98 @ 103, 717-123; (1983) NSCC Vol.14 P.398, it was held that an amendment can or could be made, to reflect the representative capacity under which the first plaintiff should have sued and any

such amendment, was and would be justified by the evidence in the case which was or is dictated by the justice and merits of the case. See also the case of Omogigere & ors. v. Itietie & anor. (1972) 5 S.C 334 @ 340 – 342.

It is also settled that once the pleadings and evidence, establish conclusively, a representative capacity and that the case has been fought throughout in that capacity, a trial or Appellate Court, can and will be entitled to enter judgment for or against the party in that capacity, even if an amendment to reflect that capacity, had not been applied for or obtained. It will be otherwise, if the case is not made out in a representative capacity. See the cases of Shella v. Chief Asajon (1957) 2 FSC68; Dokubo v. Bob Manuel (1967) 1 ANLR 113 @ 121; Onwunaju Ndidi & anor. v. Osademe (1971) 1 ANLR 74 @ 16; Mba Nta & ors. v. Ede Nweke Anigbo & anor. (1972) 5 S.C. 156 @ 774 – 775; Mba Orie & anor. v. Okpan Uba & anor. (1976) 9 – 70 S.C 723 @ 133; Taiwo Ayeni v. William Sowemimo (1982) 5 S.C 60 and Oba Oseni & 14 ors. v. Dawodu & 2 ors. (1994) 4 NWLR (Pt.339) @ 405 – 406. 411 – 412; (1994) 4 SCNJ (Pt.1) 197 @ 209 just to mention but a few. There need not be a formal application to this/that effect either in the trial or Appellate Court. See the case of Chief Fagbayi Oloto v. The Attorney-General (1957) 2 FSC 74 and Afolabi v. Adekunle (supra).

Even where a person sued in a personal capacity instead of in a representative capacity, an Appellate Court, can, in the interest of justice, amend the plaintiffs capacity to reflect the evidence and enter judgment for the plaintiff as representing his family or community. See the case of Osinrinde & 7 ors. v. Ajomogun & 5 Ors. (1992) 6 NWLR (Pt.246) 156; (1992) 7 SCNJ (Pt.1) 79 @114 – 115. In fact, in the case of Prince Ladejobi & 2 ors. v. Otunba Oguntayo & 9 ors. (2004) 7 SCNJ 298 @310 – 311- per Uwaifo, JSC, it was held that the law is that a person, has the right to protect his family’s interest in a property or title and can sue for himself and on behalf of his family, in a representative capacity. The cases of Sogunle v. Akerele (1967) NMLR 58; Nta. V. Anigbo (supra); Mefifonwu v. Egbuyi (1982) 9 S.C 145 @ 159 and Chief Atanda & ors. v. Akunyun (stated therein as Olanrewaju) 1988 4 NWLR (pt. 89) 394 were therein referred to, (it is also reported in (1988) 10 – 11 SCNJ 11). See also the cases of Coker v. Oguntola & ors. (1985) 1 ANLR (Pt.1) 278; Alhaji Gegele v. Alhaji Layinka & 6 ors. (1993) 3 SCNJ 39 @45; (1993) 4 KLR 51 and Awudu & anor. v. Daniel & anor. (2005) 3 NWLR (pt. 909) 199 @ 222 – 223 CA.

Even if the trial court did not effect the amendment, as shown above in the decided cases, the court below, has the power to amend if it deemed it fit and just to do so. It is settled that an Appellate court can even suo motu, amend the capacity in which a plaintiff sued. See the cases of Amadi v. Thomas- Aplin & Co.Ltd (supra); Ibanga & ors. v. Usanga & ors. (1982) 5 S.C 103 @126 – 127; (1982) 1 ANLR (Pt….) 88 @ 100; Afolabi & ors. v. Adekunle & anor. (supra); Shoe Machinery Co. v. Curtlam (1896) 1 CH 108 @112 and Chief Akinnubi & anor. v. Grace Akinnubi (Mrs.) & 2 ors. (1997)1 SCNJ. 202 just to mention but a few.

It is conceded that when the application to amend came up for hearing, that the Appellant’s learned counsel, did not oppose the same.

I note that at page 66 of the Records, the learned counsel for the Appellant, even asked for costs which were duly awarded. See page 162 of the Records.If a counsel or party, treats a document, or procedure or matter, as admissible, or regular etc, then he cannot be heard or be at liberty, to object or complain later or before an Appellate Court. See for example, the cases of Chief Bruno Etim & ors. v. Chief Okon Udo Ekpe & anor. (1983) 3 S.C 12 @ 36- 37 – per Aniagolu, JSC and Egbaram & 2 ors. v. Akpotor & 3 ors. (1997) 7 NWLR (Pt.514) 559 @574; (1997) 7 SCNJ. 392 @407 409. Having consented to the said application, the Appellant, with respect, cannot now resile or complain. The consent, in my respectful view, was and amounted to an undertaking that they had permanently, waived their right, if any, to object or complain. See the case of Olukade v. Alade (1976) All NLR. 67; (1976) 2 S.C 183 @189.

I note in fact, that the said Orders of Sanyaolu, J. made on 7th February, 1995, amending the capacities the Respondents prosecuted both suits, were not appealed against. The effect is that those orders subsist in law. See the case of Chief Ogunyade v. Oshunkeye & anor. (2007) 15 NWLR (pt. 1057) 218 @257 cited and relied on by the Respondents in their Brief (it is also reported in (2007) 7 SCNJ(170).

In the concurring Judgment of Onnoghen, JSC in the case of Chief Ogunyade v. Oshunkeye & anor. (2007) 15 NWLR (Pt.1057) 218 @ 257, cited and relied on in paragraph 3.3 (6) at page 7 of the Respondent’s Brief, His Lordship stated inter alia:

“…..as the law is settled that any point(s) of law or facts not appealed against is deemed to have been conceded by the party against whom it was decided and that the said point(s) remain(s) valid and binding on the parties”.

As regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of Plaintiffs/Respondents to initiate the two suits on their behalves/behalf, I hold that the Appellant has no locus standi to object to the said representation not being a member of those families or Communities. It is settled that once the Plaintiff/Plaintiffs, expressed on a writ or Statement of Claim that the action, was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or Community to sue in that capacity. It is only a member of that group, family or Community, who can dispute, intervene or challenge, the proper representation or the capacity in which the plaintiff/plaintiffs sued. It will be futile for a defendant who is not one of those the plaintiff/plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant, cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal, can never affect the defendant adversely. See the Cases of Chief P. O. Anatogu & ors. v. Attorney-General, East Central State (1974) 4 ECSLR 36; (1976) 11 S.c. 109; Oyemuze & ors. v. Okoli & ors. (1973) 3 ECSLR 150; Alhaji/Chief Otapo & ors. v. Chief Sunmonu & ors. (1987) 2 NWLR (pt.58) 587@ 603; (1987) 5 SCNJ 57; (1987) 2 NSCC Vol.18 P. 677and Daniel Awudu & anor. v. Bautha & anor. (2005) 2 NWLR (Pt.909) 199@222-223 CA. citing the cases of Anatogu v. Attorney-General, East Central State; Chief Otapo v. Sunmonu (supra) and Busari v. Oseni (1992) 4 NWLR (Pt.237) 557.

I note that the court below, affirmed the Ruling or decision of the learned trial Judge in respect of the said order of amendment. In other words, there are concurrent findings and holdings of the two lower courts and on the decided authorities, this Court, cannot disturb or interfere. However, I am aware and concede and this is also settled, that no Judge, can or is entitled, to reverse, vary or alter the order or decision of another Judge of co-ordinate jurisdiction except on issue of jurisdiction. See the cases of Akporue & anor. v. Okei (1973) 12 S.C. 137; (1973) 3 ECSLR 1010 @1014; Orewere & ors. v. Abiegbu & ors. (1973) 3 ECSLR 1164@1167- that the proper action is to go on appeal); National Insurance Corporation of Nigeria v. Power Industrial Engineering Co. Ltd (1990) 1 NWLR (Pt.29) 697 @707 CA. – per Akpata, JCA (as he then was). In other words, in the absence of Statutory authority, one Judge, has no power to set aside or vary the Order of another Judge of concurrent and co-ordinate jurisdiction. See the cases of Amanabu v. Okafor (1966) 1 ANLR 205 @ 207 and Uku v. Okumagba (1974) 1 ANLR (Pt.1) 475 cited in the case of Wimpey (Nig.( Ltd & anor. v. Alhaji Balogun (1986) 3 NWLR (Pt.28) 324 @ 339.This is especially, when such order, has been entered or drawn up. See the cases of Obiekwuite v. Z. Umumma & ors. (1957) 2 FSC 70; Okorodudu v. Ajuetami (1967) NMLR 282 @ 283; B.B. Apugo & Sons Ltd (1990) 1 NWLR (Pt.129) 652. But compare the case of Skenconsult (Niq.) Ltd & anor. v. Ukey (1981)1 S.C 6@39 – which in interpreting section 234 of the 1979 Constitution, this Court held that since there is one High Court, he/it can.

I note that in the instant case leading to this appeal, the two orders which granted leave to the 1st and 3rd sets of Plaintiffs/Respondents to sue in representative capacities, were made by Sanyaolu J. See pages 62 and 159 of the Records. The subsequent Orders allowing the Respondents to amend their Particulars of Claim in the two suits by stating that the said suits were instituted for and on behalf of their respective family, were also made by Sanyaolu, J. As I stated earlier in this Judgment, the said two motions/applications, were not opposed by the learned counsel for the Appellant who asked for costs that were also awarded. So, it was the same Judge that made the two orders. See the case of Gordian Obioma & ors. v. Edemanya (1974) 4 ECSLR 174 . In my respectful but firm view, Aina, J. in his lengthy Ruling at pages 296 to 317 of the Records, at pages 311 and 316, thereof, adequately, dealt with some of the said principles relating to application for leave to sue in a representative capacity. At page 315, His Lordship stated inter alia, as follows:

“It is the law of this Country that – even if an order for leave is not specifically sought it will be presumed that leave to sue in that capacity was given:-

(a) The title and the Statement of Claim reflect that capacity;

(b) The suit was prosecuted in that capacity to judgment;

(c) Judgment was given for or against the plaintiff in that capacity.

The presumption that leave to sue in a representative capacity was given will be stronger if objection to sue in the representative capacity in limine is overruled by the learned trial Judge.

Failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action.

Where a person sues in a representative capacity and was capable of being so easily understood, the action will not be struck out because the Party could have been better described”.

His Lordship referred to the cases of Ibezim v. Ndulue (1992) 1 NWLR (Pt.216) 153 ratio 15, CA. citing @ 173. Amida v. Oshobayo (1984) 7 S.C. 68 @ 78-79; Anabaronye v. Nwakihe (1997) 1 NWLR (Pt.482) 374 at 382 ratio 7 (It is also reported in (1997) 1 SCNJ. 161 and Melifonwu v. Egbuji (supra) the facts of each of these cases. he briefly stated. At page 317 thereof, His Lordship held inter alia, that.

“It is not every representative action that express authority of the persons represented should be obtained or even more so is the approval of the court should be obtained. A representative action could be implied from the circumstances surrounding the action….”

His Lordship then concluded inter alia, thus:

“It is equally damaging for the Defendant, not being a member of the families or a member of the Bean or Duboro Community to come at this stage of the proceedings to challenge the proper representation of the Plaintiffs after the Plaintiffs have closed their case and the Statement of Defence had been filed, it will not serve the interest of justice at this stage of the proceedings to shut out the plaintiffs in these consolidated suits”.

He proceeded to dismiss the application and called on the defence to open their defence. I agree. I have earlier in this Judgment, touched on or dealt with some of the facts and law in respect of the said Appellant’s grouse. I note that remarkably and significantly, the Appellant in paragraph 7 (3) of its further Amended Statement of Defence at page 186 of the Records, averred as follows:

“That the cause of the said spillage was occasioned by acts of vandalism and wanton destruction of the Defendant’s installations at its Yorla Flow station, maliciously perpetrated by the Plaintiffs and members of the Families which they purport to represent and other natives of Ogoni sympathetic to the clamorous and turbulent agitation of the Movement for the Survival of Ogoni People (MOSOP), to wilfully sabotage the economic activities and business of the Defendant in Ogoni Land”.

[the underlining mine}

However, the court below, at pages 1113 to 1115, dealt with this issue (1) of the 1st and 3rd sets of Plaintiff/Respondents and in resolving the question as to whether the learned trial Judge, had the power to grant the prayer in the motion on notice before him in which the 1st and 3rd sets of Plaintiffs/Respondents, prayed the Court for an Order varying the terms of the leave granted to them by Sanyaolu, J. to institute the consolidated suits in representative capacities respectively on behalf of the said two Communities. It held at page 1113 inter alia, as follows:

“… it is necessary to take into consideration the fact that the application was made ex parte under Order 4 Rule 3 of the Federal High Court (Civil Procedure) Rules, It is also an approval which has to

be sought and given before an action is commenced. The approval order therefore, in my view, is in respect of a preliminary requirement prior to in commencement of an action. I therefore do not believe that such an order comes within what can constitute a decision of a Judge which cannot be varied, reversed or allied by another Judge of coordinate or equal jurisdiction. It is therefore not one envisaged in the dictum of Nasir, PCA in Fawehinmi v. Attorney-General of Lagos State (supra) and by Lewis, JSC in Ekpere v. Aforije. (supra)…

I believe that the earlier order made ex- parte by Sanyaolu, J formed part of the proceedings in the case before Aina, J who later assumed jurisdiction in the case. He (Aina, J) therefore has the power to entertain the application to amend the said earlier order in the proceedings as requested in the motion filed by the plaintiff in that end”.

I agree.

I have earlier held that there are concurrent findings of fact and Judgments of the two lower courts and that this Court or myself, cannot and will not disturb or interfere. This, should have been the end of this appeal.

My answer therefore, to the said issue (1) of the 1st and 3rd sets of Plaintiffs/Respondents, is rendered in the Affirmative/Positive. In respect of Issue (ii) of the Appellant and issue (2) of the 1st and 3rd sets of Plaintiffs/Respondents, it is now firmly established in a line of decided authorities by this Court firstly, that civil cases, are proved by preponderance or weight of evidence. See the case of The Liquidator of Efufu (P.M.S.) Ltd v. Adeyefa (1970) 1AMLR 13; (1971) U.K R. 42.

Secondly, it is not the business of a Court of Appeal to substitute its own views for the views of a trial court which is in a much better position to assess the credibility of all those who testified before it. See the cases of Akinloye v. Eyiyola (1968) NMLR 92 @ 95; Egri v. Uperi (1974) (1) NMLR 22 and Woluchem v. Gudi (1981) 5 S.C. 291. The duty of appraising evidence given in a trial, is pre-eminently, that of the trial court. See the case of Ogundulu & ors. v. Chief Phillips & ors. (1973) 2 S.C. 71@ 80. When there is evidence as in the instant case, to support the conclusion of a trial court/Judge either in granting or dismissing a claim or relief, a Court of Appeal, will not interfere. See the cases of Olugbolu v. Okeluwa (1981)6-7 S.C. 99 @ 105-107 citing some other cases therein; and Obodo & anor. v. Ogba & ors. (1987) 3 S.C. 459 @460-461, 466; (1987) 3 SCNJ. 82; (1987) 2 NWLR (pt.54) 1.

I say so because, the findings and holdings of the trial court, are adequately, in my respectful view, supported by the Records. The 1st set of Plaintiffs/Respondents pleaded at paragraph 7(a) of their Amended Statement of Claim at page 176 of the Records, that there was an explosion preceding the occurrence of the spillage. But the Appellant, in the said paragraph 7(3) of its Further Amended Statement of Defence referred to by me earlier in this Judgment, averred that the spillage, was caused by the malicious acts of vandalism and wanton destruction of its installation at its said station, by the Respondents and members of their families which they purport to represent. However, the trial court at pages 709 to 710 of the Records, held that the said averment of the Appellant in the said paragraph afore-stated, amounted to or constituted criminal allegation and that the Appellant, failed to prove the same beyond reasonable doubt. I note that the Appellant, did not appeal against this finding and holding by the trial court. The consequence of course, is that not only did that finding and holding, subsist, but they are deemed to have been accepted by the Appellant. See also the case of Calabar Central Cooperative Thrift & Credit Society Ltd & 2 ors. v. Ekpo (2008) 6 NWLR (Pt.1083) 362 @388 cited in the Respondents’ Brief (it is also reported in (2008) 2 SCNJ. 307 and (2008) 1- 2 S.C 229.

The court below, at pages 1121 to 1125 of the Records, dealt with this issue and issue (iv) of the Appellant and thereafter, affirmed the said finding of fact and holding of the trial court. Thus, there are concurrent findings of fact and holdings or Judgments by the two lower courts and on the decided authorities, this Court, cannot and will not disturb or interfere. This again, should have been the end of the appeal. My answer therefore, to the two issues differently couched by the parties, is also in the Positive/Affirmative.

Let me for the avoidance of doubt, say that in respect of issue (iv) of the Appellant, I note that the Appellant, in paragraph 16(1) of its Further Amended Statement of Defence at page 191 of the Records, pleaded inter alia, that the Estate Surveyors and Valuers of the PW2, did not carry out any proper appraisal of the losses caused by the said oil spillage. Then, at paragraph 16(4) and at page 192 thereof, it pleaded that it will rely on the appraisal Reports produced by its Valuers in respect of the said oil spillage. I note that at the trial, it never called its own Valuers. So, at the close of the trial, there was no evidence from the Appellant, to controvert the said evidence of the PW2 who and in fact, produced Exhibits “A” and “A1”. The law is well settled that a trial court, is entitled to rely and act on the uncontroverted or uncontradicted evidence of a plaintiff or his/its witness/witnesses. In such a situation, there is nothing to put or weigh on the imaginary or proverbial scale. In such a case, the onus of proof, is naturally discharged, on a minimum of proof. See the cases of Nwabuko v. Ottih (1961) 2 SCNLR 232; (1961)1 ANLR 487@ 490; Oguma Associated Companies (Nig.) Ltd v. IBWA Ltd (1988) 1 NWLR (Pt.73) 658 @ 682; (1988) 3 SCNJ. 13 and Balogun v. UBA. Ltd (1992) 6 NWLR (Pt.247) 336 @354, (1992) 7 SCNJ. 61 just to mention but a few. It is beyond doubt therefore, that the trial court, was justified, when it relied on the said evidence of the PW2. The court below, rightly, in my respectful view, affirmed the said decision of the trial court. I so hold.

I hold that issue (iii) of the Appellant, with respect, is irrelevant in this appeal and I will therefore, discountenance it. In concluding this perhaps, lengthy Judgment, I have no hesitation, in holding that this appeal, with respect, lacks substance and it is unmeritorious. It fails and it is accordingly dismissed. Costs follow the event. The 1st and 3rd sets of Plaintiffs/Respondents, are entitled to costs which is fixed at N50,000.00 (fifty thousand naira) payable to them by the Appellant. I wish the Rules of this Court, had given me a discretion in respect of award of costs as this is one of the appeals, where the costs to the 1st and 3rd sets of Respondents, should have been more in the circumstances of this case.

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SC.60/2003