Elemchukwu Ibator & Ors V. Chief Beli Barakuro & Ors (2007)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

By a writ of summons dated 22-11-1984 and filed on 27-11-1984, the plaintiffs instituted their action against the defendant, Nigerian Agip Company Limited at the High Court of Justice of Rivers State then sitting at Yenagoa and claimed the following reliefs:

“1. A declaration that the plaintiffs and the Ekirikuma family are the persons jointly entitled to be paid compensation in respect of the damage done by the defendant to economic and cash crops, fish ponds and lakes being in ‘Abuzubube land’ situate at lkarama Okordia in the Yenagoa Local Government Area.

2. An order of court that the said compensation be paid jointly to the plaintiffs and the Ekirikima (sic) family of Ikarama, Okordia.
3. An injunction restraining the defendant from paying the said compensation to any individual or group of persons or Ekirikima family only.”However, by a motion on notice dated 14-10-1985 which was later heard and granted by the trial court, a second set of defendants were joined in the action filed by the plaintiffs. The action was thus heard on pleadings. In the course of the hearing of which five witnesses testified in support of the plaintiffs’ claim while the second set of defendants called four witnesses. At the end of the hearing, the trial court in its judgment delivered on 15-9-1988, found for the plaintiffs and granted their reliefs one of which was that they are jointly entitled with the second set of defendants to be paid compensation for the damage done to the land occupied by the parties on which economic crops, fish ponds and lakes were destroyed by the activities of the 1st defendant’s company. Part of this judgment at page 98 of the record reads:

“In conclusion therefore I hold that the claim succeeds.

Consequently I grant the declaration that the plaintiffs (Opoti and Egberiwari families) are persons jointly entitled to be paid compensation in respect of the damage done by the Nigerian Agip Oil Company Limited.”

Learned trial Judge then proceeded to make an order that the amount of money set aside for the payment of the compensation by the 1st defendant – “now deposited with the Government Treasury in the Rivers State Ministry of Finance, be paid to the plaintiffs (Opoti and Egberiwari families) and the 2nd defendants (Ekirikuma family) jointly.”

The 2nd set of defendants who were aggrieved with this decision of the trial High Court principally on the ground that they were sole exclusive owners in possession of the land involved in the payment of compensation because the plaintiffs were their customary tenants, appealed to the Court of Appeal against the decision.

At the Court of Appeal Port-Harcourt Division where the defendants’ appeal was heard, the defendants raised several issues including an issue of title to land which reads –

“B1. Whether the plaintiffs/respondents failed to prove any title at all or any customary joint title with the appellants to the land in question.”However, the plaintiffs who were the respondents in the court below contended that their case at the trial court was not one predicated on title to land but rather one for entitlement to compensation. This is clearly reflected in the plaintiffs’ issue one in their respondents’ brief in that court. The issue reads-

“B1. Whether the action before the trial court filed by plaintiffs/respondents was one for declaration of title to land as against the claim for joint entitlement with appellants to compensation, damage to crops and things on Abuzubube land.”

The Court of Appeal which heard the appeal on 29-9-2000, in its judgment delivered on 6-11-2000, in a unanimous decision dismissed the appeal and affirmed the decision of the trial High Court. Still not satisfied with the decision of the Court of Appeal, the second set of defendants have further appealed to this court. Henceforth in this judgment, the defendants and the plaintiffs shall be referred to as the ‘appellants’ and the ‘respondents’ respectively. Briefs of argument were duly filed and exchanged between the parties before this appeal came up for hearing in this court on 16-1-2007. In the appellants’ brief of argument, the following four issues were identified from the grounds of appeal filed by the appellants-

“B1. Whether the court below was wrong to have held that title to the land (the subject of claim for compensation 8 between rival claimants) is not in issue.

B2. Whether the court below was wrong to have upheld the trial court decision that the identity and extent of the land in this case were not in issue.

B3. Whether the court below was wrong to have failed to hear and decide the appellants’ pending motion to adduce further evidence on appeal before proceeding to judgment.