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

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.

SC.35/2000