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Elf Petroleum Nigeria Limited V. Daniel C. Umah & Ors (2018)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The Appellant herein was the Defendant in Suit No. FHC/PH/C5/152/97 filed at the Federal High Court, Port Harcourt in Rivers State. The Respondents herein as Plaintiffs in the trial Court and Respondents also in the Court below for themselves and on behalf of the members of the 5 (five villages that constitute the Obite Community in Ogba/Egbema/Ndoni L.G.A. of Rivers State of Nigeria initiated the aforesaid suit (supra) against the appellant as defendant therein and claiming the following reliefs:

“a) The sum of N2,500,000,000.00 (Two Billion, Five Hundred Million Naira) only being and representing compensation for the acquisition of the plaintiffs communities, vast area of land measuring approximately 28.684 hectares (about 286.840 square meters) by the Defendant company for the establishment of a GAS PLANT at OBITE COMMUNITY in the Ogba/Egbeda/Ndoni Local Government Area of Rivers State of Nigeria.

b) That the Defendant Company implements the contents of the Plaintiffs’ Bill of demand dated September 15th 1996 already pleaded in paragraph 6 of the Statement of

claim.

c) That the Defendant company be committed in a written undertaking that it would always offer gainful employment opportunities to the indigenes of the five (5) smaller communities (villages that constitute the overall OBITE larger Community.”

Judgment was entered on the 18th day of April, 2005 by the trial Court in the sum of N25 Million Naira in favour of the Respondents which judgment was affirmed on appeal by the Court below on 13th day of July, 2006. Against the said judgment of the Court below, the appellant has brought this present appeal founded on 3 original Grounds of Appeal. By the leave of this Court granted on the 23rd November, 2009, four additional grounds of Appeal were filed by the Appellant.

SUMMARY OF RELEVANT FACTS

The Respondents filed Suit No. FHC/PH/152/97 at the Federal High Court Port Harcourt on the 26/5/97 in a representative capacity for themselves and on behalf of members of the 5 family units or villages that constitute the Obite Community in Ogba/Egbema/Ndomi LGA of River State claiming amongst other reliefs the sum of N2.5 billon representing compensation for the acquisition of the Respondents’ land

measuring approximately 26.685 hectares (286.840 sq meters) by the appellant company for the establishment of a Gas plant at Obite Community in the Ogba/Egbema/Ndomi LGA of River State.

The Respondents as plaintiffs in the trial Court called 3 witnesses and tendered Exhibit 1 i.e. Bill of Demand; Exhibit 2 their Solicitors letters of demand to the Appellant dated 2/4/97: Exhibit 3a and 3b Photographs and negative: Exhibit 4A and 4B receipts of payment made by the Appellant to Umu-Orokwokra family and closed their case on 2/11/2000.

The appellant as defendant also called 3 witnesses and tendered Exhibits 6, 7 , 8, 9 , 10, 11, 12, 12a, 13 , 13a, 14, 15 and 15a.

On the 8/4/2005, a reserved judgment was delivered in favour of the Respondents in the sum of N25,000,000.00 (Twenty five Million Naira). On an appeal to the Court below, Ilorin Division, a reserved judgment was also delivered on the 13th day of July, 2006 which affirmed the judgment of the Federal High Court Ilorin of the sum of N25,000,000.00 (Twenty Five Million Naira), with costs assessed at N10,000.00 against the appellant.

By notice of Appeal dated the 12th day of September, 2006

and filed on the 29th day of September, 2006, the appellant has now appealed to this Court on three grounds. By the leave of this Court sought and obtained on 23rd November, 2009, the appellant again filed 4 additional grounds of appeal thus making 7 with the 7th ground of appeal canvassing the issue of jurisdiction of the trial Court and the Court of Appeal on the footing that the plaintiffs now Respondents are non-juristic persons and that they do not represent the members of the 5 (five) villages or families that constituted Obite Community of Ogba/Egbemo/Ndoni Local Government Area of Rivers State of Nigeria.

In compliance with Rules of this Court, briefs were filed on behalf of the parties:

1) The amended Appellant’s Brief of Argument was settled by one C. A. Ajuyah, Esq. SAN and filed on the 28/8/2017 but deemed filed properly on the 24/10/17.

2) The Respondents’ Amended Brief of Argument was settled by one F.N. Ogbu (Mrs) and filed on 17/10/17 but deemed as properly filed also on the 24/10/17.

3) An amended Appellant’s Reply Brief of Argument, which was settled also by his said counsel, was filed on the 20/10/2017 but deemed

properly filed on the same date 24/10/17.

On the said same date, the 24/10/17, at the hearing of the appeal herein, both counsel adopted and relied on their respective briefs of argument. While the learned senior counsel for the Appellant urged in favour of allowing the appeal, on behalf of the respondents, their counsel submitted that the appeal be dismissed for want of merit.

At pages 10 and 11 of the appellant’s Amended brief of argument, the issues for determination are four fold as follows:

1) Were the learned Justices right in law in holding that the pleadings and evidence led by the Appellant are to the effect that the land in dispute was acquired by the Government

2) Were the learned Justices right to affirm the judgment and award made by the learned trial Judge in favour of Respondents –

i) Whose entitlement thereto was not proved

ii) Who had received and acknowledged the compensation paid as full and final payment

iii) Whose claim was not proved

iv) Who did not plead and prove transfer of customary right of occupancy or interest in land to Appellant

v) Whose transfer of respondents’ interest in land to

Appellant was not in issue.

3) Were the learned Justices right in law in dismissing the appeal and affirming the judgment of the learned trial Judge without considering Appellant’s complaint in Issue 3

4) Were the learned Justices right to affirm a judgment and an award of damages made to members of a non juristic villages and on the basis and evidence that the land is owned by members of 5 families when:

i) The action is incompetent and void ab initio

ii) Evidence did not support claim by five villages

It is pertinent to say also that the four issues were founded on the 7 Grounds of appeal with ground 1 inclusive of the additional grounds of appeal.

From the Respondents’ Amended Brief of argument, five issues are raised for determination and are contained at pages 3 and 4 as follows:

ISSUE 1

Whether the provisions of the Land Use Act, CAP 202 LFN, 1990, the Oil Pipe lines Act or Petroleum Act could override the mandatory provisions of the 1979 or 1999 Constitutions of the Federal Republic of Nigeria providing for payment of adequate compensation to the Respondents for their land acquired by the Appellant.<br< p=””

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ISSUE 2

Whether from the state of the pleadings and the evidence led before the Trial Court and the Court below, the claim of the Respondents could not be said to be founded on general damages i.e. compensation as to leaving the trial Court with an unfettered discretion to decide on what award to make in the circumstance of the case which award was affirmed by the Court below.

ISSUE 3

Whether this honourable Court can set aside the concurrent findings of fact of the trial Court and the Court below when the Appellant has not shown that such concurrent findings are perverse, unsound, contrary to established principle of law and has occasioned any miscarriage of justice against the Appellant.

ISSUE 4

Whether the Court below was duty bound to consider and determine all the 3 issues raised and formulated by the Appellant especially when the consideration and determination of 2 out of the 3 issues successfully and fully determined the controversies between the parties.

ISSUE 5

Whether the challenge of the legal personality of the Plaintiffs/Respondents before this honourable Court is proper in law, the Respondents having sued

for themselves and on behalf of the members of the 5 villages constituting the Obite Community.

As a pre-requisite consideration, the respondents’ counsel curiously observed that the 1st ground of appeal in the additional grounds of Appeal on page 7 of the Appellant’s Brief of Argument, which the Appellant has argued as issue No.3 on pages 24 – 29 of its Amended Brief of argument in paragraphs 2.6, 2.6.1 – 2.6.2.4, has no particulars of error in law supplied by the appellant. The counsel urges as a result that the Court should discountenance and strike out ground 1 of the additional grounds of Appeal, also issue No. 3 for absence of particulars. The learned counsel to buttress his submission, cites the case of Global Transport Oceanico & Anor. V. Free Enterprise Nigeria Limited 2001 5 NSCQR PC. 487 or 2001 5 NWLR (Pt. 706) pg. 426 at 437 – 438; also Order 8 Rule 2(2) of the Rules of this Court as amended in 1999.

In response to the objection raised by the respondents, the appellant by its amended reply brief argues the contention as untenable; that the said ground of appeal is competent and that no one can be misled on the complaint in the

ground. Issue No. 3, counsel submits is born out of that competent ground. He cites in support the case of Atuyeye & Ors. V. Ashamu (1987) 1 NWLR (pt. 49) 267 at 282 per Oputo, JSC.

RESOLUTION

Ground 1 of the additional Grounds of Appeal complained of is reproduced hereunder as follows:

The learned Justices erred in law in not considering and determining Issue No. 3 validly raised by Appellant and thereby denied appellant fair hearing on the appeal in that issue No.3 raised the question as to whether on the pleadings and evidence, plaintiffs were entitled to the judgment given them

Order 8 Rule 2(2) of the Rules of this Court provides thus:

“If the grounds of Appeal allege misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated.”

See the case of Global Transport Oceanico & Anor. V. Free Enterprise Nigeria Limited (Supra). As rightly submitted and argued on behalf of the respondents, the use of the word “shall” in the Rules of Court makes it mandatory and not merely directory that the particulars of error or misdirection in law in the ground of appeal must be stated.

For all intents and purposes and without having to belabor the issue, the objection raised by the respondents’ learned counsel has merit and I hereby make an order striking out ground 1 of the additional grounds of Appeal as well as issue no. 3 on the amended Brief of Argument of the Appellant and the argument thereof as it is not supported by any particulars.

For the purpose of reconciling the issue formulated by the parties, the appellant herein, and the respondents are agreeable on their 1st issues; in respect of appellant’s issue 2, same has sub-summed respondents’ issues 2 and 3; while appellant’s issue 4 is agreeable also with the respondents’ issue 5.

The determination of this appeal will best be centered on the three issues formulated by the appellant:- to wit issues 1, 2 and 4 respectively.

ISSUE 1

Were the learned Justices right in law in holding that the pleadings and evidence led by the Appellant are to the effect that the land in dispute was acquired by the Government

The appellant’s counsel submitted extensively on the 1st issue by re-stating emphatically that it is not the appellant’s case and its

witnesses did not also give evidence that the land on which its gas plant was sited was at any time acquired by the Government; that the acquisition of the said land by Government was not in issue; that the learned Justices wrongly attributed to appellant matters it did not plead and evidence which its witnesses did not give. The learned counsel was emphatic that the misdirection committed was grievous and hence appellant had suffered a grave miscarriage of justice. The counsel in summary urged that the issue should be resolved in favour of the appellant.

In response to the argument advanced on behalf of the appellant, the learned counsel for the respondent related copiously to the following provisions of Section 28(1), 28(3), (b), (2) or any other Section of the Land Use Act LFN 1990 now LFN 2004, the Petroleum Act, 1990 now 2004 LFN and the Oil Pipelines Act, 1990 now 2004 LFN. The foregoing provisions, counsel contends, have been the bedrock of the appellant’s case from trial Court to the Supreme Court; that same cannot override the clear and mandatory provisions of

Sections 1(1) & (3) and 40 of the 1979 Constitution now Section 44(1), (a)

& (b) of the 1999 Constitution of the Federal Republic of Nigeria on the payment of compensation (Damages) to the Respondents for their land acquired by the Appellant for its Multinational Gas plant operation at Obite community in the Ogba/Egberno/Ndoni Local Government Area of Rivers State. He cites in support, the case of ELF PET Nig. Ltd V. Daniel Umah & 4 Ors 2007 1 NWLR (Pt. 1014) 44 at 67: also the decision of this Court in Ogunleye V. Oni (1990) 2 NWLR (Pt. 135) 745 at 773. Several other authorities were cited by the learned counsel who urges against resolving the issue in favour of the appellant.

RESOLUTION OF ISSUE 1

The crux of appellant’s grudge had to do with the pronouncement made by their Lordships at the lower Court wherein they held at page 254 of the records and said:

“The pleadings and evidence led by the appellant are to the effect that the land in dispute was acquired by the Government and that the appellant is the owner of Oil Mining Licence 58, virtue of Section 2 of the Petroleum Act (supra) entitles them to take the benefit of the provisions of the 1st Schedule of the said Petroleum Act. That being the case, the

appellant has a duty to prove under Section 135 of the Evidence Act that the land in dispute had in fact been acquired by the Government and the Respondents were entitled to compensation for surface rights only.”

Following from the foregoing pronouncement, by the learned Justices of the lower Court, the appellant’s counsel submits they were in great error when they gravely misdirected themselves both on the facts and on the law. The counsel related specifically to their 21 Paragraph statement of defence at pages 69 to 70 of the records of appeal which, he submits shows clearly that appellant never pleaded what their Lordships attributed to; that the appellant did not mention the word ‘government’ and did not assert that it owns OML 58; that it did not also plead compulsory acquisition of land by the Government nor did any of the witnesses attested to such, that the lower Court used the error committed and thus putting on the appellant the burden of proving a compulsory acquisition of land which is not in issue. He cites the case of Chidiak V. Laguda (1964) NMLR 123.

It is pertinent to state that this Court by its decision in the case of Provost Lagos

State College of Education & Ors. V. Kolawole Edun & Ors. 2004 6 NWLR (Pt. 870) page 476 at 509 decided that the Government has the constitutional right to compulsorily acquire property on payment of compensation by virtue of Section 40 of the 1979 Constitution, now Section 44(1), (a) & (b) of the 1999 Constitution.

By logical extension and deduction therefore, it holds right to say that where property including land is acquired compulsorily by Government and surely oil companies, such as in the present case, the payment of adequate compensation is obvious and imperative.

The supremacy of the Constitution over any other law, be it Land Use and Petroleum Act etc have never been in doubt. It is well pronounced in Section 1(1) and (3) of the 1979 Constitution and same also under the 1999 Constitution of the Federal Republic of Nigeria.

As rightly submitted by the respondents’ learned counsel therefore, the right to own property by an individual and indeed family or community is well entrenched in the 1979 Constitution. The right to own property carries with it the right, to dispose also of the said property. It is not logical therefore

that the appellant in this case should acquire the Land of the respondents without paying adequate compensation to them. Reference is squarely provided for in the case of Kukoyi & Ors V. Aina (1999) 10 NWLR (Pt 624) P. 233 at 645. See also Elf Pet. Nig. Ltd. V. Daniel Umah & 4 Ors under reference supra.

Furthermore and for purpose of re-asserting the right accruing to the respondents, I will seek to relate to Section 44(1) of the 1999 Constitution which reproduction states as follows:

1) No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things.

(a) requires the prompt payment of compensation therefore: and

(b) gives to any Person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.”

The foregoing constitutional provision is mandatory

and not merely directory and could not have been waived by the respondents. It also pertains to the general public of Nigeria. See the decision of this Court in Menakaya V. Menakaya 2001 91 LRCN pg 2958 at 2996 HI.

In interpreting Section 44(1) of the Constitution and also re-stating its mandatory nature, their Lordships at the Court of Appeal had this to say at pages 17 and 18 of their judgment.

“The provisions of the said section (supra) are self explanatory and one does not need any aid to interpret same. To acquire movable property or interest in any immovable property prompt payment of compensation must be made and that any person claiming such compensation has unlimited access to a Court of law or Tribunal or body having jurisdiction in that part of Nigeria.”

It is pertinent to read from the foregoing section again that no movable property or any interest in immovable property shall be taken possession of compulsorily without payment of compensation. See Kukoyi V. Aina (1999) 10 NWLR (Pt 624) 63 at 65.

It is revealed on the record that the appellant throughout its 21 paragraph statement of defence and even in evidence before the

Court did not state or say that the Respondents land was compulsorily acquired for any public purpose and no notice of any public acquisition was pleaded and tendered at the trial, rather the appellant gave evidence that it is a multinational oil and gas company operating the Obite Gas plant on Respondents’ land. As rightly argued and submitted by the learned counsel for the respondents, the appellant’s counsel cannot be right to say that the Respondents never merited the payment of compensation by the appellant.

Therefore, the lower Court cannot be wrong when it affirmed the judgment of the trial Court.

I seek to emphasize further that a limitation has not been imposed on the appellant by any law not to pay compensation for the land acquired. This is more so especially when regard is had to the mandatory provisions of Section 40 (1) of the 1979 Constitution, which is impari materia with Section 44 (1) of the 1999 Constitution of the Federal Republic of Nigeria, now extant.

The appellant having paid the Respondents the sum of N1,995,718.50k for surface rights for the crops, economic trees and structures damaged on the Respondents’ land as

admitted by Dw3 in his evidence in Chief and under cross-examination, cannot now be heard that the Respondents are not entitled to compensation for the land acquired. Any adherence to the appellant’s submission is to give way to technicality as against justice. See the case of Nneji V. Chukwu (1988) 3 NWLR (pt. 81) 184.

The general rule is well restated that the plaintiff should succeed on the strength of his own case. However, it is also in point that a plaintiff can take advantage of the weakness of the defence. See the view held by this Court in the case of Akinola & Anor v. Olowu & 2 Ors 1962 1 All NLR (Pt 2) pg.224.

As rightly submitted by the respondents, learned counsel, their case cannot be said to be founded on the tort of trespass as the appellant’s senior counsel would want this Court to believe. In other words, the argument by the appellant that the fulcrum of the respondents’ case is tied to trespass is totally misleading and also misconceived.

On the totality of the 1st issue herein, the lower Court was right in endorsing the sum of N25,000,000.00 awarded by the trial Court based on the constitutional and legal position

adumbrated. The said issue is resolved against the appellant, and I also affirm the decision reached by the Court below.

ISSUE 2

Were the learned Justices right to affirm the judgment and award made by the trial judge in favour of Respondents –

(i) whose entitlement thereto was not proved

(ii) who had received and acknowledged the compensation paid as full and final payment

(iii) whose claim was not proved

(iv) who did not plead and prove transfer of customary right of occupancy or interest in land to appellant

(v) transfer of Respondents, interest in land to Appellant was not in issue

It is submitted by the appellant’s counsel that the judgment and the award of N25 million for Respondents’ interest in the land transferred to the Appellant is legally and wholly untenable when the transfer of Customary Right of Occupancy or interest in land by Respondents to the appellant was not in issue and no evidence of any such transfer was given by any witness or found in the entire judgment. The Respondents, counsel argues, did not in their pleadings base their claim on any transfer of interest in fond to appellant.

Counsel submits further that the judgment given on the basis of a case which respondents did not make in their pleadings or even in their evidence is legally untenable; that the learned justices were wrong to affirm such judgment when respondents did not prove their entitlement thereto.

It is trite, counsel argues, that a claimant must prove his entitlement to a relief before he can be awarded the damages claimed in the action; that a Court of law is not a “Father Christmas” who goes about dishing out presents to every person who comes his way. Counsel cites in support the case ofEkpenyong & Ors V. Inyon E. Nyong (1975) 2 SC 71 @ 81 – 82 and International Nig Limited v. Engr. David Nwachukwu (2004) 13 NWLR (Pt. 891) @ 564-5.

The learned counsel submits also that the Rules of Court (Order 13 Rule 4) Federal High Court Rules require pleadings to contain all material facts a claimant relies on and to set out at the end of the statement of claim and the specific relief or remedy sought on the basis of these material averments. Reliefs claimed in an action, counsel argues, are no substitutes for the material facts, which alone, constitute the basis

for claiming the relief. Counsel cites the case of Chinda V. Amadi (2003) FWLR (Pt. 145) 696 at 701 a Court of Appeal decision.

Counsel submits with emphasis, that the relief claimed is predicated on an alleged acquisition of Respondents’ land. To be entitled to the N25 million award, it is incumbent on the plaintiffs to prove acquisition of their land as pleaded; that appellants evidence – both oral and documentary attest to the fact that compensation was paid by them (appellant).

Counsel re-iterates further that the respondents did not plead trespass in this case, also that both lower Courts held that there was no compulsory acquisition by Government. Furthermore, that the issues joined in this case did not relate to transfer of interest in land by Respondents to Appellant. Therefore, an award made by the trial Judge based on purported transfer of Respondents’ interest in land, and approved by the lower Court is entirely erroneous as respondents’ claim on the proceedings was not predicated on any alleged acquisition of claimants’ interest.

Counsel submits further that, where the parties have by their pleadings joined issues, the duty of the

trial judge is to proceed to the trial of the issues so joined and to resolve same. Counsel cites the decision of this Court in the case of Imana V. Robinson (1979) ANLR 1 @ 9 per Aniogolu, JSC.

The learned trial Judge, counsel submits, did not resolve the issue as to whether appellant entered the land without consent or authority of Respondents; that the award made was thus not predicated on trespass on which the parties joined issues; that having joined issue on trespass therefore, the trial judge is not entitled to enter judgment for the Respondents on the basis that Respondents’ Customary Right of Occupancy or interest in the land has been transferred to Appellant. Counsel cites the case of SPDC V. Abedi (1974) All NLR 1.

On the award of N25 million made by the trial Judge, counsel argues that Damages cannot in law be validly awarded unless claimant’s entitle is first established; that the award was predicated on alleged transfer of Customary Right of Occupancy or interest in land by Respondents to Appellant – when Respondents made no such claim on their pleadings.

The award, counsel submits was based on a case which the learned trial

judge himself made out for the Respondents who did not make for themselves; that the learned Justices of the lower Court, had no reason to affirm the judgment and the award made by the learned trial judge in the circumstances shown under this issue.

Counsel, for all intents and purposes, held a firm impression that the learned justices of the lower Court did not give consideration to the crucial matters before affirming the erroneous judgment of the award of N25 million. This, he submits had occasioned a grave misdirection on the part of the justices, and their decision to affirm the award is fundamentally flawed. The learned counsel urges that the issue should be resolved in favour of the appeal herein.

In response to the appellant’s 2nd issue, the respondents’ counsel submits that the appellant has not shown that the concurrent findings of facts by the two lower Courts [on the payment of N25,000,000.00 as General Damages (Compensation) which is 1% of the total claim of N2.5 Billion, in favour of the Respondents is either outrageous, perverse, unsound and against any known principles of law or has occasioned any miscarriage of justice against the

Appellant, who has continued to use the Respondents’ land without knowing when to vacate. The Respondents, counsel submits have proved their case that they are entitled to the award made by the trial Court and affirmed by the Court below on the 13th July, 2006. The Court below, counsel argues was legally right and justified when it affirmed the award of N25,000,000.00 General Damages in favour of the Plaintiffs/Respondents made by the trial Court. The learned counsel urges that the issue be resolved against the appellant.

RESOLUTION OF ISSUE 2

The said issue relates to Respondents’ claim before the trial Court at paragraph 15(a) of their amended statement of claim. As plaintiffs, their claim against the Defendant are hereby reproduced as follows:

“(i) The sum of 2.5b (two billion, five hundred million Naira) being and representing compensation for the acquisition of the Plaintiffs’ communities vase area of land measuring approximately 28.684 hectares (about 286.840 square meters) by the defendant’s company for the establishment of a Gas Plant of the Defendant’s/Appellant’s company at Obite.

(ii) That the defendant company implement the

contents of a bill of demand, dated September, 16th 1996 already presented to the defendant company by its host communities being represented by the plaintiffs on record.

(iii) That the defendant be committed in a written undertaking that it would always offer gainful employment opportunities to the indigenes of the five (5) smaller communities (villages) that constitute the overall OBITE Community.”

As rightly stated by the respondents’ counsel, the main thrust of the Plaintiffs/Respondents’ claim is founded on the payment of compensation for their land acquired by the Defendant/Appellant for its Gas Plant operation and the enforcement of their Bill of Demand dated the 16th day of September , 1996 which was presented to the appellant for implementation and enforcement.

I seek to state that, as revealed on the respondents’ pleadings, their claim was hinged and founded on General Damages which should leave the trial Court with the unfettered discretion to decide what adequate award it should make in favour of the Respondents based on what is reasonable, fair and just, considering the nature and circumstances of the Respondents’ case. It is

only reasonable of course that the factors to be considered for the award of damages must be the antecedent of the fact that the Respondents’ land acquired was an agricultural land and was used also for fishing purposes. All these are borne out clearly on the Pleadings.

It is also significant to bear in mind that the future use of the land cannot possibly revert to the original user.

This is more so when the evidence of Dw3 is taken into account where he said that he would not know when the defendant/appellant would vacate the land of the plaintiffs/respondents.

It is an established principle of law that in cases where a party is demanding for or claiming general damages, the Court awards same at its discretion. See the decided cases of Akinterinwa V. Oladunjoye (2000) 1 NWLR (Pt 659) 93 at 115;UBN Plc V. Ikwen (2000) 3 NWLR (Pt. 646) 223 at 237: Yalaju Amaye V. AREC Ltd. (1990) 4 NWLR (Pt. 145) 422 @ 451 and Osuji V. Isiocha (1989) 3 NWLR (Pt. 111), 623 @ 640.

The claim which the Respondents are making for compensation is for the use of the Respondents’ land in Obite Community in the Ogba/Egbemo/Ndoni Local Government Area of Rivers

State of Nigeria; the appellant by its own evidence through Dw3, one Chibuzor Ugwuoho said that the Land Use Act forbids the appellant from payment of compensation for acquisition. This is therefore in confirmation to the provision of Section 44(1) of the 1999 Constitution of the Federal Republic of Nigeria. It is also in consonance with the Principle of UBI JUS UBI REMEDIUM, that the trial Court awarded N25,000,000.00 to the Respondents which was affirmed by the Court below.

It is pertinent to re-iterate herein that in the award of General Damages, a wide spread power is given to the Court comparable to the exercise of discretion of the Court. It is enormous and therefore far-reaching and contrary to the contention held by the appellant herein. The measure of general damages is awarded to assuage such a loss, which flows naturally from the defendant’s act. It needs not be specifically pleaded. It suffices if it is generally averred. They are presumed to be the direct and probable consequence of that complained of.

Unlike special damages, it is generally incapable of exact calculation. See the following authorities of Federal Mortgage Finance

Ltd V. Hope Effiong Ekpo (2004) 2 NWLR (Pt. 865) 100 at 132, Dumez V. Ogboli (1972), 2 SC 196 and Waso V. Kalla (1978) 3 SC 21.

Contrary to the contention held by the learned counsel for the appellant therefore, the respondents, as rightly submitted on their behalf, knew what they wanted from the trial Court which was rightly affirmed by the Court below. In other words, the general damages (compensation) which was duly pleaded and awarded in the sum of N25 million. The judicial discretion of the trial Court in awarding the said damages was, I hold rightly not disturbed by the Court below or interfered with. The discretion was exercised both judiciously and judicially taking into consideration the facts and circumstances of the Respondents’ case.

It is trite law that judicial discretion is not questioned by an appellate Court when it is not exercised wrongly or perversely. The trial Court awarded the sum of N25 million by reliance on the authorities of Kukoyi V. Aina and Ogunleye V. Oni (supra) also on Section 44(1) of the 1999 Constitution which is impari materia with Section 40(1) of the 1979 Constitution. Afterall, the sum of N25 million

damages awarded the respondents is only 1% of the total claim of N2.5 Billion. As rightly questioned by the learned counsel for the respondents, therefore, is it fair and equitable both in law and in equity to say that the discretion of the trial Court in awarding such paltry sum was unwarranted, injudicious and unjustifiable in the circumstances This is bearing in mind the vast hectares of the Respondents’ land acquired by the appellant for a matter done over 8 years before judgment The answer is certainly in the negative, without mincing my words.

The said issue No. 2 is in the circumstance also resolved against the appellant.

The 4th and the last issue formulated by the appellant is in tandem to the respondents’ 5th issue, wherein the appellant posed the following question:

Were the learned Justices right to affirm a judgment and on award of damages made to members of a non-juristic villages and on the basis and evidence that the land is owned by members of 5 families when:

(i) the action is incompetent and void ab initio

(ii) Evidence did not support claim by five villages

The learned counsel for the appellant contends

that the notion that this action is incompetent and therefore robs the trial Court of the jurisdiction in this case is totally different from the issue as argued in the Court below. It is, counsel argued, based on the lack of legal capacity on the part of the Respondents to sue or be sued in the first place.

It is the submission of counsel that in this action, the real plantiffs are the 5(five) villages that constitute Obite Community represented by the five named plaintiffs on records; that to constitute a competent and valid legal action, the suit must be instituted by or on behalf of a juristic person; that the 5 villages that constitute Obite Community are not juristic persons and are not known to law. Consequently that they can neither sue nor be sued in a Count of law.

The learned counsel cites a number of decided cases to support his contention inclusive of Fawehinmi V. Nigerian Bar Association (No.2) 1989 2 NWLR (Pt. 105) 558 @ 596 SC decision. Also the case of Nduka V. Ezenwaku (2001) 6 NWLR (Pt. 709) 494 CA decision which is of a persuasive authority. A further authority is the case of Bank of Baroda V. Iyalabani Co. Ltd (2002) 13 NWLR (Pt.

785) pages 551 at 592 SC decision and Macfoy V. UAC (1962) AC 152 on a void action resulting into a nullity.

In final conclusion, the learned counsel emphasized strongly that the real plaintiffs in the case were ‘5 villages’ that constitute Obite Community. The ‘5 villages’ which remained unnamed in both Courts below and as endorsed on the processes, “5 villages of Obite Community” are not juristic persons who cannot sue or be sued.

It is contended by learned counsel further that an action in the name of a non-juristic person is incompetent and void and no Court of law has jurisdiction to adjudicate on an incompetent suit; that the learned justices were wrong to affirm a judgment delivered by the learned trial judge without jurisdiction and in an incompetent action; that the award affirmed by the learned justices is untenable in law.

In response to the 4th issue raised by the counsel for the appellant the respondents’ counsel submits that the said issue as canvassed is misconceived in law and in fact. Counsel contends without mincing words that the issue of the capacity of the Plaintiffs/Respondents to sue in a representative capacity had been fore closed.

Counsel submits further that the issue of jurisdiction raised by appellant’s counsel with regard to the juristic personality of the plaintiffs/respondents in its Appellant’s Amended Brief of Argument on pages 29 to 35 thereof, is rather a subtle way of seeking a reversal of the order of the Court of first instance made on the 7th day of August, 1997. That the case of Nduka V. Ezenwaku (supra) relied upon heavily by the appellant’s counsel is most inappropriate in the circumstance of this appeal.

The learned counsel contends further that on the legal personality or juristic personality of the Respondents to sue, which the learned Senior Advocate had argued in his amended appellant’s Brief of Argument, counsel submits that the arguments is misconceived. He cites in support the case of Shell Petroleum Development Company Nigeria Limited V. Amadi 2011 All FWLR (Pt. 604) 80 at 104, wherein the issue of the legal personality of the plaintiffs/respondents was raised on appeal JUSTICES at the Court of Appeal Port Harcourt Division.

On the totality of the submission on behalf of the Respondents, counsel seeks to show that his

clients on record and members of the 5 villages otherwise called families namely – Umuijere, Umu-Eke, Umuoru-Kwokra, Umu Nkweke and Umu-Ngwu that constitute the Obite Community in Ogba/Egbemo/Ndoni Local Government Area of Rivers State are juristic personalities that initiated the suit leading to this present appeal and thus the Federal High Court of Nigeria have and properly assumed and exercised jurisdiction over the action of the plaintiffs/Respondent.

The Court below, counsel submits was legally right and justified to have affirmed the judgment of the trial Court as same have not been legally faulted.

RESOLUTION OF THE ISSUE

The resolution of issue 3 seeks to answer the question whether the challenge of the legal personality of the Plaintiff/Respondents before this Court is proper in law, the Respondents having sued for themselves and on behalf of the members of the 5 villages constituting the Obite Community.

The issue raises the fundamental question as to the competence of this action ab initio as well as to whether the award made in this case is an award in favour of the parties to this action.

The resolution of this issue

would necessitate a quick reference made to the record of appeal at page 13 specifically. On the 7th August, 97 pursuant to a motion exparte for leave to sue the defendant in a representative capacity, by one Dr. George on behalf of the plaintiffs/now respondents while one J. B. Lockie of counsel represented the Defence, the Federal High Court Port Harcourt Division made the following order per O. Aina (Judge):

“Court – It is hereby ordered as prayed. The plaintiffs on record are hereby granted leave to prosecute this matter in a representative capacity.”

Note also the affidavit in support of the motion ex-parte praying for leave to sue the defendant in a representative capacity wherein, the Authority to institute Legal and or defend legal action(s) against or by the Elf Petroleum (Nigeria) Ltd. And or any other company(ies) or Person(s) in respect of the vast Area of land situate at Obite, acquired by Elf Petroleum (Nig) Ltd. at pages 911 of the record of Appeal is marked as Exhibit DCU. Paragraph 6 of the affidavit at page 8 is also relevant.

It is pertinent to say again that there has not been any motion to set aside or an appeal

against the order to sue in a representative capacity made on the 7th August, 1997. It therefore remains sacrosanct, valid and subsisting. See the case of Osula V. Osula1995 3 SCNJ 60. The only way the Defendant/Appellant could have successfully challenged the capacity of the Plaintiffs/Respondents to initiate the suit precipitating into this final appeal would have been by way of preliminary objection without filing a statement of defence and thereafter calling evidence.

The order made on 7th August, 1997 cannot now be challenged in this Court for the 1st time for purpose of side tracking the lower Court as sought to do by the appellant. See the case of Anabaronye & Ors V. Nelson Nwakaihe (1997) 1 NWLR (Pt. 482) 374 at page 382 wherein this Court held and said:

“The matters mentioned above which were raised as issues or questions were being raised for the first time in this Court: they were not raised in the Courts below. The authority of a person to bring a representative action can be challenged by way of preliminary objection on notice and not by way of defence.”

The appellant’s counsel has amongst other authorities relied

heavily on the Court of Appeal decision in the case of Nduka V. Ezenwaku (supra) on his amended Brief of argument to argue that the Respondents are not juristic personalities to initiate the suit leading to appeal and thus the trial Court had no jurisdiction to entertain and determine the Respondents, case.

As rightly submitted and well analyzed by the learned counsel for the respondents, the principle in that case is most inappropriate to the circumstance of the appeal herein and does not in any material respect aid the appellant’s case.

In other words and putting it differently, in Nduka V. Ezenwaku case (supra), the issue of absence of the word “MEMBERS” from the case came up at the address stage when plaintiffs applied to amend the name of the plaintiffs by prefixing Ezenwaku family with the word Members to make the suit have life and flesh which is not the position in the case under consideration.

In the appeal herein, the particulars of claim, pleading and evidence of the Respondents through PwI, Mr. Promise U. Ujah at the trial Court have already and clearly shown that the Respondents on record represented the members of the 5 families:-

namely Umuijere, Umu-Eke, Umuoru Kwokra, Umu-Nkweke and Umu-Ngwu that constitute the Obite Community in Ogba/Egbemo/Ndoni Local Government Area of Rivers State. (See page 45 of the Record of appeal) whereby the plaintiffs/respondents’ witness, PwI supra, gave in evidence at page 76 of the record that: “We sometimes called these families Villages.”

As rightly submitted by the Respondents’ counsel, his clients are and therefore juristic personalities to sue and represent members of their 5 families/villages making up the Obite Community. Throughout the record of appeal from the trial Court to this Court, the word “MEMBERS” is aptly reflected on the particulars of claim and right through to the judgment to this Court. The trial Court, I hold had jurisdiction to entertain and determine the case of the Respondents herein as properly constituted. Contrary to the submission by the appellant’s learned counsel therefore, the Court below was right to have affirmed the judgment of the trial Court as it did.

Again in the case of Nduka V. Ezenwaku under reference (supra) and closely relied upon by appellant’s counsel at page 31 – 32 of the Amended appellant’s

brief of argument on the juristic personality of the Respondents which effectively relates to the Respondents’ capacity to sue the lower Court said thus:-

“The opposition which will justify challenge of authority of the representation of a group to sue or defend in a particular capacity must be an opposition coming from a section of the group. It must be an intra dissention within the group and not inter dissention between two groups which have diametrically opposed interest in the matter before the Court.”

I seek to restate affirmatively that none of the Respondents and those represented is opposed to the Respondents’ capacity or authority to represent them. In the case of Shell Petroleum Dev. Company Nigeria Limited V. Amadi under reference supra, the issue of legal personality of the plaintiffs/respondents was raised on appeal before the Court of Appeal. Their Lordships relied on the decision of this Court in Yusuf V. Akindipe (2000) FWLR (Pt. 5) 709, (2000) 8 NWLR (Pt. 669) 376 at 386 wherein it was held by this Court that:

That since the Respondents on record, claim the right to the reliefs sought for themselves and in a

representative capacity and that since the group or class of persons they sought to represent are easily identifiable and have common interest and purpose they could sue in that capacity.

As submitted rightly on behalf of the Respondents, the members of the five families/villages that constitute the Obite Community in the Ogba/Egbema/Ndoni Local Government Area of Rivers State are easily identifiable and have a common purpose i.e. the land owned together which was compulsorily acquired by the appellant.

The law is trite that when a group of class of persons sought to be represented in a suit are easily identifiable and have common purpose as in the instant case, they can institute a suit in a representative capacity to seek remedy in a Court of law.

It is in evidence that the Respondents on Record, represented the members of the 5 families (villages) that constitute the Obite community and have common interest in the land compulsorily acquired by the appellant and therefore have the authority to institute the suit for themselves as juristic persons on behalf of the members of the 5 families (villages) that constitute the Obite Community. <br< p=””

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Again and for purpose of driving the point home further in the case of Alhaji Raimi Akanji Yusuf & Ors v. Alhaji Akindipe & Ors (supra), this Court made pronouncements severally on this issue of juristic personality of a plaintiff to sue. In recounting certain excerpts of the pronouncements, it was emphasized that the group or class of persons sought to be represented if identified easily and have common purpose, will suffice a representative capacity.

The respondents herein like in the foregoing authority, are easily identifiable and have common purpose as the members of the 5 families (villages) that constituted Obite Community in Ogba/Egbema/Ndoni Local Government Area of Rivers State whose lands were compulsorily acquired by the Appellant. They are therefore juristic persons at law, so also are the other members of the families sometime called villages who donated their power to the named Respondents on record to fight their cause for them.

In the course of his submission also, the appellant’s counsel cited and relied on the case of Bank of Baroda V. Iyalabani Co. Ltd. (2002) 13 NWLR (Pt. 785) 551 at 592. As rightly submitted by the

respondents’ counsel, that case under reference is not relevant or applicable to the present case herein.

In that case for instance, this Court allowed the appellant Bank’s appeal on the ground that the issues of legal personality of the Appellant Bank cannot be determined in limine without evidence being led. In the appeal hereinbefore us, the Respondents have led credible evidence showing that the suit was for themselves and on behalf of the members of the 5(five) villages constituting the Obile Community in Ogba/Egbemo/Ndoni Local Government Area of Rivers State. I will re-iterate again that the Respondents’ witness, Mr. Promise U. Ejah, while giving evidence as PwI, at the trial Court never found any difficulty in saying that “we sometimes called these families villages.” This was done after the witness (who incidentally is the 3rd plaintiff/respondent on record) had taken pains to enumerate the five families before the trial Court as enumerated earlier in the course of this judgment.

The 5 persons who sued the Defendant/Appellant are natural persons authorized by the members of these 5 villages that constitute the Obite Community, an

identifiable entity to sue.

In Shell Petroleum Development Company Nigeria Limited V. Chief T. Edamkue & Ors. (2009) All FWLR (Pt. 489) 407 at 429, this Court held that “A person has the right to protect his family’s interest in a property or title and can sue for himself and or on behalf of his family in a representative capacity.” (Emphasis is supplied).

The contentions put forward by the learned counsel for the appellant, I hold are mere technicalities and not substance of the appeal. See the case of Nneji V. Chukwu (1988) NWLR (Pt. 81) 184 at 196 and Oluigbo V. Umeh (2004) 6 NWLR (Pt . 870) 621 at 647.

The challenge of the plaintiffs/respondents to sue in a representative capacity for themselves and on behalf of the members of the 5 villages does not lie in the mouth of the Defendant/Appellant who has nothing to share in the victory of the plaintiffs/Respondents. This is in view of the settled law as held by this Court that a Defendant/Appellant cannot challenge the capacity of the plaintiffs/Respondents. See the decision delivered on Friday 10th day of July, 2009 in the case of Shell Petroleum Dev. Company Nig. Ltd. V. Chief T.

Edamkue & Ors. (Under reference supra) at page 430 wherein it held that:

“Once the Plaintiff/Plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appear in the two (2) consolidated suits in the instant case 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 from 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.”

Following from the foregoing authority, it is obvious that the contention of the learned Senior counsel, that there were/are no juristic persons before the trial Court up to this Court or that a family or community cannot sue as

in the instant case, is unfounded in law. The said issue is in the circumstance, resolved also against the appellant.

The appellant’s counsel, as rightly submitted on behalf of the respondents, was merely academic in his argument and which has no legal foundation in our jurisprudence. See the case of Awosanya V. Okulate (2000) 2 NWLR (pt. 646) 530.

In other words, and contrary to the submission by the appellant’s counsel, the Court below had properly appraised and considered germane issues to determine the appeal before arriving at its conclusions and judgment delivered on 13/7/2006. Hence the lower Court was therefore right in law to have affirmed the award of N25,000,000.00 by the trial Court as General Damages in favour of the plaintiffs/Respondents which same is also affirmed by me.

With all the issues resolved against the appellant, the totality of this appeal is that it lacks any merit. I hereby dismiss same and affirm the judgment of the lower Court which endorsed that of the trial Court. I also award costs of N2,000,000.00k (Two Million Naira) in favour of the Respondents against the Appellant.

Appeal is dismissed with N2,000,000.00k costs.

SC.344/2008

Elf Petroleum Nigeria Limited V. Daniel C. Umah & Ors (2018) LLJR-SC

Elf Petroleum Nigeria Limited V. Daniel C. Umah & Ors (2018)

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