Mr. Marvin Faithful Awara & Ors V. Alaye Alalibo & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

The appellants were defendants to an action instituted against them and their community by the respondents, as plaintiffs in the High Court of Rivers State, holden at Degema. In the suit the respondents’ claim is as follows:

(i) “That the plaintiffs as the owners in possession of the Aba Boko Fishing Port are the persons entitled to the compensation payable by the Shell BP Petroleum Development Company of Nigeria Limited.

(ii) An order directing the Ministry of Finance, Rivers State to release to the plaintiffs all the sums of money paid into the Rivers State Treasury by the Shell BP Petroleum Development Company of Nigeria Limited as compensation in respect of the Ekulama Location at Aba Boko.”

The respondents explained in their statement of claim the subject matter in dispute between them and the appellants. Originally the dispute was between the respondents and Idama/Ekulama people. The dispute arose when Shell BP discovered oil at Aba Boko settlement. Shell BP decided to pay compensation to the villagers or communities on whose land the oil was found. The dispute went before the divisional officer at Degema but no agreement was reached. The Idama/Ekulama community thereafter sued the respondents before the High Court, in suit no. PHC/97/91, and claimed for declaration of title to the mangrove swamp, the site of the location and an injunction restraining the respondents from interfering with their title, rights and interests in and over the location.

The appellants, in the present case, applied to be joined as second set of defendants to the suit filed by Idama/Ekulama community. Their application was granted and they filed their statement of defence. The High Court dismissed the case of Idama/Ekulama. The appellants and the respondents now locked horns on which of the two communities is entitled to the compensation money. Meanwhile, Shell BP paid the compensation money into the Treasury of the Rivers State Government pending the determination of the dispute over the party rightly entitled to be paid the compensation money.

Pleadings were called and delivered. Each party called witnesses in proof of their respective claims. The learned trial Judge, at the end of the trial, dismissed the action filed by the respondents against the appellants. Dissatisfied with that decision the respondents appealed to the Court of Appeal, Port-Harcourt Division. The Court of Appeal, in a considered judgment, found that the respondents had established their claim to Aba Boko fishing port. The appeal was allowed.

It is against the judgment of the Court of Appeal that the appellants have now come before this court. Four issues were identified by the appellants for the determination of this appeal. The issues are as follows:-

“1. Whether the Court of Appeal properly considered all the issues in the appeal.

2. Whether the Court of Appeal was ight in shifting the onus of proof on the defendants/appellants.
3. Whether Court of Appeal was right in making a case for the respondent which is contrary to the case put forward in the High Court.
4. Whether the Court of Appeal was right in holding that the respondents have proved their radical title to the land in dispute.”

After going through the issues raised by Chief Debo Akande, SAN, for the respondent, I will accept that those issues are more relevant to the grounds of appeal filed for the consideration of this appeal. The respondent’s issues read as follows:

“1. Whether Aba Ama was in dispute so as to make it necessary for the lower court to resolve issues relating thereto in reaching a decision on Aba Boko.

2. Whether Court of Appeal had infact shifted the burden of proof unto the appellants.
3. Whether the Court of Appeal actually made a case for the respondents different from the case placed before the trial court by the respondents.
4. Whether there were enough materials on the record of proceedings before the Court of Appeal upon which the Court of Appeal’s decision that the respondents have proved their title to Aba Boko can be based.”

I will start with issue 4 which is common to both the appellants and respondents. It is, in my view, the main issue for the determination of this appeal. Before I go further in considering the matter raised in this issue I would like to state that there is no dispute over the fact that communities which first settled within the oil locations are entitled to be paid compensation. The appellants stated this fact in paragraph c of the amended statement of defence. In that paragraph they averred thus:

“5(a) With further reference to paragraph 13 of the statement of claim, the defendants averred that communities which first settled within the oil locations are entitled to be paid compensation and by virtue of first settlement within the area in dispute the defendants are entitled to be paid compensation to the exclusion of the plaintiffs.”

The respondents on their part, made similar averment in paragraph 13 of their statement of claim wherein they pleaded as follows: