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.

B4. Whether the judgment of the trial court which was upheld by the court below is not against the weight of evidence.”

Strangely enough, the learned counsel to the 15th – 4th respondents who stated in no uncertain terms that he was adopting the four issues as identified by the appellants in their brief of argument, proceeded to formulate further issues for determination. I shall say something on this practice later on in this judgment. Meanwhile the ‘further’ issues framed by the 1st-4th respondents are –

“B2. Whether a party who did not appeal against the judgment of the court below or file a respondent’s notice, can be heard urging against the judgment of the lower court.

B3. Given the concurrent judgments of the lower courts whether this honourable court has any reason to disturb this judgment.

B4. Whether the Court of Appeal was right in affirming the findings of fact that the land in question belongs jointly to the plaintiffs/respondents and the appellants as a basisfor which the Judge granted the relief claimed.”

The case of the plaintiffs now 1st-4th respondents in this court at the trial court was that the compensation due and payable by the Nigerian Agip Oil Company Limited, now the 5th respondent in this court in respect of damage done by the company in the course of its operations in the area to crops, fishponds and other waters on the land in Abuzubube, be paid to them as representing Egberiwari and Opoti families of Ikarama, Okordia jointly with the family of the appellants as joint owners of the land affected by the damage. The stand of the defendants now appellants however was that their family is exclusively entitled to the entire amount of compensation to be paid because they are exclusive owners of the land in question, the plaintiffs’ 1st-4th respondents’ families being their customary tenants on the land. The learned trial Judge in a well considered judgment, upheld the claim of the plaintiffs/1st – 4th respondents that they are entitled to the compensation jointly with the family of the appellants.

The appellant’s appeal against that judgment of the trial court was dismissed by the Court of Appeal hence the present appeal.

Before proceeding to consider the issues arising for determination in this appeal, it is necessary to comment on the action of the 1st-4th respondents in their brief of argument where after agreeing and adopting the four issues identified in the appellants’ brief of argument as the issues arising for the determination in this appeal, at the same time proceeded to frame further issues for determination. Looking at these three further issues, they clearly do not arise from any of the grounds of appeal filed by the appellants resulting in their being incompetent. Definitely, the 1st-4th respondents who have not filed any cross appeal from which grounds of appeal these further issues could have arisen, nor filed a respondents’ notice to affirm the judgment of the court below on grounds other than grounds argued by the appellants, have not got an unbridled right or freedom of raising issues or further issues for determination which have no relevance to the grounds of appeal filed by the appellants.

The role of this court in the circumstance:-, therefore is strictly limited to seeing whether or not the decision or the court below which affirmed the judgment of the trial court is correct. See Eliochin (Nigeria) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47: Oguma Associated Companies (Nigeria) Ltd. v. I.B.W.A. Ltd. (1988) 1 NWLR (Pt. 73) 658 at 681 and Nzekwu v. Nzekwu ( 1989) 2 NWLR (Pt. 104) 373 at 430. What is rather surprising in the conduct of the learned counsel to the 1st-4th respondents in this respect is that in the first further issue raised by him from the non existent grounds of appeal, he was accusing the appellants of the same behaviour at the court below which he rightly observed as being not allowed under the law. Therefore, the 1st-4th respondents’ further issues which do not arise nor relate to any of the grounds of appeal filed by the appellants, are incompetent and shall have no role to play in the determination of this appeal.

Going back to the issues for determination in the appellants brief of argument, the main and real issue for determination having regard to the judgment of the trial court affirmed by the court below in its judgment now on appeal, is issue number one. The question is whether the court below was wrong to have held that title to the land the subject of claim for compensation by the parties claimants, was not in issue. Learned appellants’ counsel has argued wrongly, that the court below was wrong in holding that where the claim to compensation is between rival claimants to the land, the proper issue for determination is entitlement to compensation and not to title. Counsel pointed out that entitlement to compensation cannot be judicially and judiciously determined without a proper consideration of who has a better title; that a claimant to compensation cannot succeed without first establishing his title to the land where title to the land is in issue between the parties as in the present case. A number of cases cited and relied upon by the appellants include Nelson v. Ammah 6 WACA 134; Dobadina & Anor: v. Ambrose & Ors. (1969) 1 NMLR 24; and Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745. In the present case, learned appellants’ counsel observed that the plaintiffs/1st- 4th respondents having admitted in their case that the land belongs to the appellants but that the appellants are such owners jointly with them, their case at the trial court should not have succeeded, if the case of Oko Mogaji & Ors. v. Cadbury Ltd. (1985) 2 NWLR (Pt. 7) 393 at 395, which required the 14th- 4th respondents to have traced their root of title, is taken into consideration. Concluding his arguments in SUPPORT of this issue, learned appellants’ counsel argued that the plaintiffs/1st- 4th respondents, having failed to prove that the land in question,Abuzubube, is a communal land, their claim ought to have been dismissed by the trial court and that the failure to dismiss the action had occasioned a miscarriage of justice to the appellants thereby necessitating the interference by this court in allowing their appeal.

In dealing with this issue, learned counsel to the plaintiffs/4th respondents insists that title to the land which is the subject to the claim for compensation, was not in issue before the trial court as rightly held by the court below. Relying on the law that courts do not make the habit of granting relief not claimed by a party as stated by this court in Oba LawaI Fabiyi v. Chief Solomon Adeniyi & Ors.(2000) 5 SCNJ 1: (2000) 6 NWLR (Pt. 662) 532, learned counsel observed that as there was no claim for title to the land before the trial court, the court was right in refusing to grant such relief which was not claimed even by the appellants at the trial court, the court below or in this court and as such even the decision in the case of Dobadina Family v.Ambrose Family (supra) cited by the appellants where it was held that claimants to compensation must satisfy the court among others that they have a prima facie right to entitlement to the compensation being paid, does not support the case of the appellants that title to the land must be proved; that considering the background of this case which was originally between the plaintiffs/ 1st -4th respondents and the Nigerian Agip Oil Company Limited, now the 1st respondent in this court, the appellants who were joined in the action as defendants who did not put up any claim for title to the land in question, should have expected any such relief from the trial court taking into consideration the decision in Gamba v. Kwara State Investment Company Ltd. & Ors. (2005) 5 SCNJ 29; (2005) 5 NWLR (Pt. 917) 160. Finally, learned counsel urged this court to hold that the title to the land which is the subject of the payment of compensation, was not in issue in the present case as found by the trial court and affirmed by the court below. From the record of the appeal particularly the reliefs claimed by the plaintiffs/1st-4th respondents which I have quoted in full earlier in this judgment, it is quite clear that the plaintiffs/1st- 4th respondents were at the trial High Court principally on the question of payment of compensation for damage done to the land in question to crops,

fishponds and so on, in respect of which the plaintiffs/1st-4th respondents claimed joint entitlement with the family of the appellants. It is for this reason that the plaintiffs/1st-4th respondents specifically claimed for the relief of injunction restraining, the only defendant then in the action now 5th respondent, from paying the compensation to any person or group of persons or the appellants’ family alone. There was no relief for the declaration of title to the Abuzubube land which was the subject of the action for the payment of compensation. The defendants/appellants who on their application were joined in the action as 2nd set of defendants by the trial court, in their further amended statement of defence dated 26-2-1988 and filed at the trial court on 1-3-1988, filed no counter-claim claiming the relief for declaration of title to the Abuzubube land situate at Ikarama Okordia in the Yenegoa Local Government Area, the land in respect of which compensation was payable by the 5th respondent for the damage caused by its operation in the area. Paragraph 14 of the further statement of defence at page 47 of the records reads:

“14. The 2nd set of defendants deny that the plaintiffs are entitled to the relief sought in their paragraph 14 of their amended statement of claim. An agreement signed by plaintiffs and their solicitor that it was only economic trees and neither land nor lakes that were disputed will be founded upon at the trial. By that admission the plaintiffs are estopped from denying that the ownership of the Abuzubube land is residing in the 2nd defendants. ”

In the absence of a counter-claim specifically set up after the last paragraph of the statement of defence, the facts averted in paragraph 14 of the statement of defence above cannot be used by the appellants to prop up a claim for declaration of title to Abuzubube land. It was in line with this state of pleadings that the learned trial Judge in his judgment found for the plaintiffs 1st-4th respondents that they were jointly entitled to the payment of compensation with the appellants’ Ekirikuma family. Thus, in the absence of any claim for declaration of title in the present case, the learned trial Judge was right in resisting any attempt of being dragged into the issue in his judgment which was affirmed by the court below. Therefore on the state of pleadings and evidence adduced by the parties at the trial court, I see no reason whatsoever to interfere with the concurrent findings of fact by the two lower courts on the question of whether or not issue of claim of title to the land, the subject of payment of compensation, was in issue. Issue of claim of title was certainly not before the trial court and the learned trial Judge was quite right in not considering and determining that issue in his judgment. This puts to rest the first issue for determination in this appeal.

Next issue for determination is whether the court below was wrong to have upheld the trial court’s decision that the identity and extent of the land in this case were not in dispute. Learned counsel to the appellants referred to the findings of the trial court at page 95 of the record and argued that the trial court having found that title was in issue in this case, ought to have also found that the plaintiffs were required to have proved the definite identity of the land, to succeed; that the plaintiffs 1st -4th respondents having failed to establish the essential ingredients of the identity of the land, their claim ought to have failed. The cases of Nelson v. Amah 6 WACA 134 and Epi v. Aigbedion (1972) 10 SC 53 were relied upon.

The 1st – 4th respondents however maintained that there was no doubt or uncertainty as to the name and the entire identity of the Abuzubube land which the trial court found is well known to the parties because it is the same land that the three families of the respondents and the appellants have claimed compensation for damage done to the same land at other instances of similar claims before the present claim. Learned counsel observed that as the representatives of the three families entitled to compensation were present on the day the assessment took place, the question of any doubt as to the identity of the land for the purpose of payment of compensation, can hardly arise.

It must be stated here that although the learned trial Judge made some findings on title and identity of Abuzubube land at page 95 of the record, the findings were strictly restricted to ascertaining the families who were to participate in the sharing of the amount set aside by the 5th respondent for the payment of compensation for the damage done to the Abuzubube land by its operation. The learned trial Judge was not in any doubt whatsoever as to the type of claim before him when he said on the same page as follows:

“The claim before me is one for a declaration for entitlement to receive compensation in respect of damages done to properties in Abuzubube land.”

In this regard therefore, the court below was right in upholding the trial court’s decision that the identity and extent of the land in this case was not indeed in issue. In other words, the identity of the land for the purpose or in SUPPORT of the appellants’ non existent claim for declaration of title to Abuzubube land which was the subject of the payment of compensation, was certainly not an issue before the court below and I so hold.

The third issue in the appellants’ brief of argument is whether the court below was wrong to have failed to hear and determine the appellant’s pending motion to adduce further evidence on appeal before proceeding to judgment. The complaint of the appellants in this issue is that the failure of the court below to hear and determine their pending motion to adduce further evidence before proceeding to judgment, was a breach of their right of fair hearing citing and relying on the decisions in Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 and Nnamani v. Nnamani (1996) 3 NWLR (Pt. 438) 591 in support of this argument. It was further argued by the appellants that had the motion to adduce further evidence which was an admission of the appellants’ assertion that they exclusively owned the land in question, their appeal at the court below would have been allowed on the further evidence alone and failure to hear the motion therefore, occasioned a miscarriage of justice justifying allowing the appeal.

For the 1st-4th respondents however, their learned counsel pointed out that on the day the appellants’ appeal was heard at the court below, learned appellants’ counsel agreed to argue his appeal without any complaint that there was any motion pending before that court. This was inspite of the fact that the plaintiffs 1st – 4th respondents’ counsel informed that court of a pending motion filed by the 1st-4th respondents which he agreed to withdraw to pave the way for the hearing of the appeal. By this conduct, argued the learned counsel to the respondents, the appellants are deemed to have abandoned their motion and therefore have no reason to complain

before this court. Several decisions such as Ilodibia v. Niger Cement Co. Ltd. (1997) 7 SCNJ 77; (1997) 7 NWLR (Pt. 512) 174; Agidigbi v. Agidigbi (1996) 6 SCNJ 105; (1996) 6 NWLR (Pt. 454) 300; and Ekpeto v. Wanogho (2004) 12 SCNJ 220; (2004) 18 NWLR (Pt.905) 394, were relied upon in support of this position of the 1st- 4th respondents.

The answer of whether or not the court below refused or failed to hear the appellants’ pending motion to adduce additional evidence before proceeding to hear and determine their appeal, can be easily found from the record of this appeal on the day it was heard at page 210 which reads:

” I.P.C. Igwe: for the appellants

B. U. Ekwugha: for the respondents

Mr. B. U. Ekwugha of counsel says that there is a notice of motion dated 27/3/2000 and filed on 28/3/2000. Counsel seeks to abandon and withdraw the application.

Mr. Igwe does not oppose the application to withdraw.

COURT: The application dated 27/3/2000 and filed on 28/3/2000 is struck out accordingly.

Mr. Igwe for the appellants argues the appeal and says as follows:

4. There is an appellants’ amended brief deemed properly filed on 22/2/95. Counsel applies to

abandon issue No.4 and to renumber issues Nos. B4 and B5. Counsel adopts the amended appellants brief and relied thereon. urges the court to allow the appeal.

Mr. Igwe has no reply on any point of law.

Court: The appeal is adjourned to 6th November, 2000 for judgment.”

From this record, it is quite clear that when the attention of the court below was drawn to the pending motion filed by the 1st-4th respondents and the application by their counsel to withdraw the motion, as the learned counsel to the appellants had no objection to the withdrawal of the motion, it was accordingly struck out by the court below. At that point, if the appellants’ counsel had wanted to proceed with the appellants’ pending motion to call additional evidence before hearing their appeal, their learned counsel could have informed the court of his desire to move the motion first for determination before the heating of the appeal. Therefore by refusing to say anything to the court below on the appellants’ motion before arguing their appeal, their learned counsel afortiori, the appellants, are deemed to have abandoned their motion. The complaint of the appellants of the alleged denial of fair hearing does not arise at all from the proceedings of the court below. The law is trite that where a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him or had occasioned a miscarriage of justice. See Akhiwu v. Principal Lotteries Officer, Mid- Western State (1972) 1 All NLR (Pt.1) 229 and Ilodibia v. Nigerian Cement Company Ltd. (1997) 7 NWLR (Pt. 512) 174 at 190. Thus, from the record of the court below, there is no basis whatsoever for the appellants’ complaint that the court below denied them fair hearing by failing to hear and determine their motion which was clearly abandoned by their counsel.

The last issue in the appellants’ brief of argument is whether the judgment of the trial court which was upheld by the court below is not against the weight of evidence. After adopting their arguments in issues 1 and 2 in support of the present issue, the appellants submitted that having regard to the pleadings and evidence of the parties, the learned trial Judge ought to have held that on the preponderance of evidence, the appellants’ case was more probable than the case of the plaintiffs/ 1st-4th respondents. All further arguments of the appellants in support of this issue, are mainly in support of the appellants’ case on the claim for declaration of title the land in question which was not before the trial Court for determination. Although the 1st-4th respondents’ Counsel was also dragged into the same line of arguments in their brief of argument this issue having regard to the judgment of the trial court as affirmed by the court below, can only he resolved in relation to the plaintiff/ 1st-4th respondents’ claim for declaration that they are jointly entitled with the appellants to share in the amount of money made available by the 5th respondent as compensation for the damage done to Abuzubube land. The evidence adduced by the 1st-4th respondents as plaintiffs at the trial and accepted by the trial court, fully supports their claim resulting in the judgment in their favour which was affirmed on appeal by the court below. Being an appeal arising from concurrent findings of fact and appellants having not shown that the judgments are perverse, I see no reason at all to interfere with the judgements of the two courts below in this appeal. See Odiba v. Muemue(1999) 10 NWLR (Pt. 622) 174; 0lorunfemi v. Asho (1999) 1 NWLR (Pt. 585) 1;Alli v. Aleshinloye (2000) 6 NWLR (Pt. 660) 177 and Taiwo Ilara Ogun v. Moliki Akinyelu & Ors. (2004) 18 NWLR (Pt. 905) 362 at 388 and 392. The appeal having failed, the same is hereby dismissed.

There shall be N10,000.00 costs against the appellants in favour of the respondents.

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SC.243/2001