Ntoe Andrew O. Ansa & Ors V. Addax Petroluem Development (Nig) Ltd (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A.(Delivering the leading Judgment)

\The Appellants had sued the Respondent before the High Court of Cross River State vide a writ of summon dated the 14/1/2002 and the following claims were endorsed thereon:-

1. An order for the defendant to produce a list of its employees from the Cross River State detailing their communities and local government areas of origin.
2. An order that the defendant as long as its operation shall continue/subsist in Calabar must recognize Kasuk Clans as their landlords and/or host communities entitled ‘ to benefit from employment, contracts, provision of social amenities and other infrastructure, etc.
3. An order that the defendant shall employ, award contracts, provide infrastructure and social amenities to the plaintiff’s equal in volume and/or value to what it has expended on hitherto supposed lost communities as at the date of judgment.
4. Perpetual injunction restraining the defendants by themselves, their agents, privies and/or assigns from continued operation at the base (Old Calabar Port) without its recognizing and treating the plaintiffs as their landlords and/or host communities.
5. N50,000,000.00 (fifty million naira) damages.

The above claims were repeated at paragraph 14 of the Amended Statement of Claim dated the 22/12/2006 but filed on the 11/1/2007 and the 4th Appellant testified as the sole witness in proof thereof.

Although the Respondent filed a statement of defence, no evidence was called in support thereof because an application to file written statement on oath of witnesses by the Respondent was refused by the High Court.

At the end of the trial, the High Court delivered judgment on the 5/8/2009 dismissing the Appellants’ action, and the present appeal was brought against that decision.

From the four (4) grounds contained on the Amended notice of appeal, two (2) issues were formulated in the Appellants’ brief filed on the 7/9/2010 for determination in the appeal. They are thus:

1. Whether the lower court understood the case put forward by the Appellants when it firstly rejected vital exhibits tendered by them only to later dismiss their case for failure to prove title to land. This issue with respect is supported by grounds (i), (iii) and (iv) of the amended notice of appeal.
2. Whether the trial court was justified to scrutinize a tendered exhibit to fish out evidence or contradiction that should have but was neither produced nor pointed out by the defendant. This issue is supported by group it, of the notice of appeal.

The two (2) issues were argued together in the brief settled by Chief Orok I. Ironbar, of counsel for the Appellants.

In the Respondent’s brief filed on the 24/8/2012 but deemed on the 15/1/2013, the following issues were raised for decision in the appeal.

1. Whether the lower court understood the case put forward by the claimants/appellants.
2. Assuming that the names “Kasuk Qua Clans”. “Kasuk” and “Kasuk Clans” which are used interchangeably by the claimants/appellants in this appeal mean one and the same name, whether paragraphs 5 and 14 (II) of the amended statement of claim in which they appear are not claims for title to the Old Calabar, Port by the Claimants/Appellants and, if they are, whether the court below was not right in treating exhibit “E” and the other documents mentioned in the last two lines of paragraph C.5 on page 3 of the Appellants’ brief as being irrelevant to the proof by the claimants/appellants of their title to the Old Calabar Port?

As can be seen, there is no indication as to which of the grounds of the appeal the above issues relate.

It must always be remembered by counsel that the right of a Respondent who did not have a cross appeal or a Respondent’s notice to formulate an issue/s for determination in an appeal is restricted and limited in the sense that if he chooses to formulate his own issue/s different from the ones formulated by the Appellant, such issue/s must come and be shown to have been derived from any of the grounds of the appeal contained on the Appellant’s notice of appeal.

Such a Respondent does not have the right to formulate issues for determination at large without any indication as to from which of the grounds of appeal the issues were distilled. In the absence of the indication by the Respondent from which of the grounds of appeal he formulates his own issues, it would not be the business of the court to embark on speculation about the point and it would entitled to ignore such issues for which no basis is shown in the appeal. Okoye v. N.C. & F. Co. Ltd. (1991) 6 NWLR (199) 501; The Reg. Trustees, A.F.M. v. Umo Jawes (1987) 7 SCNJ, 117; Onifade v. Olayiwola (1990) 7 NWLR (161) 130; Ibator v. Barakuro (2007) 9 NWLR (1040) 475; Momodu v. Momoh (1991 ) 22 NSCC (1) 212.

It may be observed that the Appellants’ issue 1 and the Respondent’s Issue 1 are in substance the same and so I intend to consider the Appellants’ issues which have been shown and are derivable from the grounds of the appeal in the determination of the appeal.

The submissions by the learned counsel for the Appellants on his issues are that from the statement by the High Court at paragraph 2 of page 85 of the record of appeal (extract of which were set out) it did not understand the case put forward by the Appellant before it. He maintained that the Appellant’s made no claims to title for land and only mentioned the land and Exhibit ‘E’ to show that they are near or related enough for it to be regarded as host community and to benefit for being so. It was submitted that since the Respondent did not call evidence to support the statement of defence it filed, the evidence of PW1 that the Respondent was operating on the Appellants’ land was not contradicted and that the High Court in evaluating Exh. ‘E’ drew a distinction and difference that should have come from the Respondent as defendant, contrary to the authority of Tanko v. Maiwaka (2010) 1 NWLR (1126) 468 that a court should not make a case different from the case made by the party himself. In further argument, learned counsel said the Appellants had pleaded old port as the base of the Respondent in paragraphs 5 and 7 of the amended statement of claim and so it was wrong of the High Court to have stated at page 87 of the record of appeal that they made no mention of the Old Calabar Port as that amounted to reading out that which is on the record.

According to him, the evidence of PW1 is supported by paragraphs 6, 7, 8, 9 and 13 of the amended statement of claim and that the High Court in rejecting the documents tendered, went outside the issue of admissibility. He urged us to take a look at the rejected documents which show that they were on behalf of host/catchment communities of which the Appellants considered themselves as one. He insisted that the Appellants’ case of being a host community and entitled to benefits was never disputed but acknowledged by the Respondent in Exh. ‘D’ and that the High Court investigated Exhibit ‘E’ and used its findings to contradict the case of the Appellants contrary to the decision in West African Breweries Ltd. v. Savannah Ventures Ltd. (2002) 10 NWLR (775) 401 at 426. Learned counsel said the High Court should have noted that the Respondent did not adduce evidence and so minimum evidence was required of the Appellants’ to prove their case, citing Newbreed Org. Ltd. v. Eromiosele (2006) 5 NWLR (974) 499 and Durosaro v. Ayorinde (2005) 8 NWLR (927) 407 at 425.