CHIEF PATRICK AZUOMA & ORS v. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2019)

CHIEF PATRICK AZUOMA & ORS v. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED

(2019)LCN/13145(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of April, 2019

CA/OW/213/2015

JUSTICES

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria

RATIO

PARTIES: PROPER PARTIES MUST BE IN COURT
It is trite law that proper parties must be in Court, before the Court can have the competence and jurisdiction to pronounce on their interest. See Green Vs Green (supra); COTECNA INTIL LTD VS CHURCH GATE NIG. LTD & ANOR. (2010) 18 NWLR (Pt.1225) 346 (SC); Proye & Ors Vs Makarfi & Ors (2017) LPELR 42738 (SC).PER ITA GEORGE MBABA, J.C.A.

APPEAL: WHEN APPELLATE COURTS CAN INTERFERE IN THE AWARD OF COSTS BY TRIAL COURTS
In the case of Layinka & Anor Vs Makinde & Ors (2002) LPELR 1770 (SC), the Supreme Court, per Uwaifo JSC, held:
When costs are awarded on the basis, i.e. judicially and reasonably to compensate a successful party, an appellate Court will be quite wary to interfere with the discretion of the Court as to the amount of costs. See Rewane Vs Okotie Eboh (1960) SCNLR 461. On the other hand, if the award is made against established principles, it will be set aside by an appellate Court. See Agidigbi Vs Agidigbi (1996) 6 NWLR (Pt.454) 300.PER ITA GEORGE MBABA, J.C.A.

Between

1. CHIEF PATRICK AZUOMA
2. LOUIS NLEMEDIM
3. ANTHONY N. OBODO
4. IKECHUKWU AMADI
(For themselves and as representing members of Umukehi and Umuimeka kindreds of Orji Owerri North L.G.A of Imo State) Appellant(s)

AND

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Respondent(s)

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Imo State High Court, sitting in Owerri, in Suit No. HOW/448/2010, delivered on 30th September, 2014, by Hon. Justice I. O. Agugua, wherein the claims of the plaintiffs (now Appellants) were dismissed. At the lower Court, the plaintiffs had, 26/10/2010 by writ of summons sought:
a) A declaration that the lease, by the Claimants to the defendant of the pieces or parcels of land measuring approximately 35.42 acres in area which situate lying at Orji, Uratta in Owerri North Local Government Area of Imo State, now popularly known as and called ?Shell Camp? Owerri, has determined, the defendant having failed, refused and/or neglected to pay the rent for the said lease and perform all other obligations to be performed by the defendant under the said lease.
b) A declaration that the claimants are entitled to the immediate possession of the said leased land popularly known as ?Shell Camp?
?c) The sum of N10,094.00 (Ten thousand Ninety Four Naira) being arrears of rent for the said lease due and payable by the

defendant to the claimants.
d) Injunction restraining the defendant, their servants, agents and workers from dealing with the leased land popularly known as ?Shell Camp Owerri? in any form or manner inimical to the interest of the claimants.”

The Defendants contested the claim and filed a defence on 12/12/2011, which warranted a Reply by the plaintiffs on 28/2/12. After hearing the case and considering the evidence and addresses of Counsel the trial Court held against the plaintiffs, thus:
A combined reading and understanding of Exhibits A,C,D,J and K and evidence of PW1 and PW2 shows that the area today called Shell Camp is a vast and built up area larger than what Claimants are claiming in this suit. The Claimants have not clearly defined in view of the present state of SHELL CAMP the exact area and extent or their claim. No Court can grant declaration to an unidentified area or extent of land. Yes measuring approximately 35.42 acres but from where to where in that massive Area called SHELL CAMP From the evidence before the Court the claimants have failed to prove their claim. Claim of the

claimants must stand or fall on its own. It is only when claimant has made out its cause that the defence will be considered. This suit was essentially fought on documentary facts/evidence. Documents duly admitted in evidence become the best evidence of its contents and speak for itself. The whole contents therein speak for themselves. Oral Evidence adduced must support the documentary evidence relied upon. Oral evidence is handy to throw more light on documentary evidence. Accordingly, the claim of the claimants fail in its totality and is accordingly dismissed claimants to pay N150,000.00 cost to the Defendant.? (Pages 148 -149 of the Records of Appeal)

That is the decision Appellants appealed against, as per the Notice of Appeal filed on 24/11/15, pages 150 to 155 of the Records of Appeal. They filed their Brief of Arguments on 21/9/18, which was deemed duly filed on 17/1/2019.

Appellants distilled four (4) issues for the determination of the Appeal, as follows:
1) Whether the learned Trial Judge was right to hold that the respondent was not the proper person to be sued as defendant in this suit (Grounds 3,4,5)
2) Whether the

learned Trial Judge was right in relying on extraneous matters and conjecture to dismiss appellants? claim. (Grounds 1 and 2)
3) Whether from the facts, circumstances and evidence adduced in this case, the learned Trial Judge was right to have dismissed the Appellants? claim (Grounds 6)
4) Whether the award of the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) by the learned Trial Judge, as cost against the appellants was appropriate in the circumstance. (Ground 7)

The Respondent filed its brief of argument on 23/01/2019, and adopted the issues for the determination of the Appeal as distilled by the Appellants.

Arguing the Appeal on 25/3/2019, the Counsel for Appellants, L.C. Ugorji Esq., (with him O.O. Kalu Esq), on issue one, stated the long principle of law, that there are three classes of parties to an action, namely, proper parties; desirable parties and necessary parties; he said that proper parties are those who, though not interested in the plaintiff?s claims, are made parties for good reasons; desirable parties are those who have an interest or who may be affected by the result; while necessary parties are

those who are not only interested in the subject matter of the proceedings but also in whose absence the proceedings could not be fairly dealt with. He relied on the case of Green Vs Green (1987) 3 NWLR (Pt.61) 480.

Counsel said the Appellants, through their forebears, had entered into lease agreement with the Respondent sometime in the year 1951 and 1956, as per the Exhibits A,B,C and D (Lease Agreements, registered as No.7 at page 7 in Volume 76; No.10, at page 10 in Volume 76; No.41, at page 41 in Volume 76, respectively). Counsel said the Respondent had pleaded and led evidence to the effect that it knew neither the Appellants nor their kindred, nor the leased portion of land measuring 35.42 acres, situate at Orji, Uratta, Owerri North L.G.A, popularly called Shell Camp; that the Respondent also denied having nexus with the Exhibits A to D, thus saying it was not the proper person to be sued. Counsel, however, argued that in paragraph 9 of its amended statement of defence, which its witness testified to, it stated that the Respondent between the year 1952 and 1956, entered into lease agreement with different lessors, including Eastern Region of

Nigeria in respect of the pieces or parcels of land, which now comprised the area known as and called Shell Camp, and that it opted to rely on the documents pleaded by the Appellants (that is, Exhibit A to D).

Counsel said the evidence of the Respondent at the trial were manifestly contradictory; that in the one hand it denied entering into agreement with Appellants or having nexus with the Exhibits A to D, and, on the other hand, stating that the Respondent did enter into lease agreements with different lessors of the Shell Camp, the subject matter of the dispute claimed by the Appellants in the said Exhibits A to D! Counsel said the law is that, where a witness gives evidence which contradicts an earlier evidence on the same issue, both evidence should be disregarded Panache Communications Ltd Vs Aikhomu (1994)2 NWLR (Pt.327)420.

Counsel said the case was contested, substantially, on documentary evidence which cannot be varied or contradicted by oral evidence, except where fraud was established (Anyanwu Vs Uzowuaka (2009) 40 NSC QR 1 at 22).

Counsel said that they had led evidence in line with their pleadings, tracing their lease

agreement with Respondent to the events of 1951 ? 1956, as per the Exhibits A to D, noting that the suit was in a representative capacity, Appellants representing the families/offspring of the lessors in Exhibits A to D. He relied on the case of Maryam Vs Zwingina (2001) All FWLR (Pt.72) 2006 to say that a lease agreement is a written contract and parties thereto are mutually bound by the terms therein; that the Court has a duty to enforce the same. He also relied on the case of Makwe Vs Nwukor (2001) FWLR (Pt.63) 1.

Counsel added that Appellants? forebears entered into the lease agreement with the Respondents in a representative capacity, representing the people of Umukehi and Umuimeka kindreds of Orji, Owerri North L.G.A., as also the Appellants herein, advancing the same common interest. He relied on Vulcan Gases Ltd Vs A.G. (2001)9 NWLR (Pt.719) 610.

Counsel said there was no dispute at the hearing as to title in respect of the Shell Camp or the lineage of the Appellants to their forebears who leased the lands to the Respondent; that the Respondent did not deny that Appellants are by inheritance, owners of a portion

of the Shell Camp measuring 35.42 acres, despite the purported traverse of paragraphs 1 and 2 of Appellants Amended statement of claim by the Respondent?s Amended pleadings ? paragraphs 1 and 2 (pages 30 and 58 of the Records).

Counsel relied on the case of Jacobson Engineering Ltd Vs UBA Ltd (1993)3 NWLR (Pt.283) 586, to say that a mere denial of a detailed factual situation without attacking the veracity or authenticity of the details contained therein is not denial in law.

Counsel asserted that the Respondent, having admitted the lease agreements, as per Exhibits A to D, there was no burden again on the Appellants to trace any historical evidence of their claim to the title, and their relationship with the original lessors; he said that the trial Court misconstrued the law and wrongly placed the evidential burden of proving whether the lease was surrendered by the respondent.
?
Counsel referred to the evidence of Respondent?s witness on page 132 of the Records, to the effect that ?the respondent has relinquished its interest in all the land acquired in the area popularly called and known as Shell

Camp, Owerri, by surrendering same to the various lessors as indicated or minuted on the lease agreement relied on by parties in this suit.? He said that it was the duty of the Respondent to establish such assertion, not the Appellants! He relied on Section 131 (2) of the Evidence Act 2011, and the case of Iyere Vs BFFM Ltd (2001) FWLR (Pt. 37) 1166. Counsel said the Respondent who said that the lease had been surrendered, was unable to place before the trial Court a written 12 months notice for the purported determination of the lease in respect of the 35.42 acres of the Shell Camp, as required in the lease agreement.

On Issue 2, whether the trial Court was right to rely on extraneous matters and conjecture to dismiss the claim, Counsel answered in the negative. He said that extraneous matter is one which has no relationship or connection with the issue or matter under consideration; a matter outside of and foreign or strange to and so unnecessary to the matter being considered. He relied on Tobi Vs Mobil Producing Nig. Unltd (2015) ALLFWLR (Pt.778) 808 at 813. He submitted that a Court can only act on the basis of the evidence placed before it; that

reliance on facts not placed before the Court will amount to consideration of extraneous matters and will invariably occasion miscarriage of justice. NBCI Vs ALFIJIR MINING NIG LTD (1993) 4 NWLR (Pt. 287) 346; FBN Plc Vs Tsokwa (2004) 5 NWLR (Pt.866) 271, ratio 9.

Counsel said the trial Court was relying on extraneous matter in arriving at its conclusion, when it said:
The Claimants in this Suit represent themselves and Umukehi and Umuimeka kindreds. It follows the above that there are other families or kindreds not represented in this Suit as per Exhibits A, B, C and D. To have cleared this doubt and obvious vaccum, the Claimants ought to have conclusively traced their lineage to each family/executor of Exhibits A, B, C and D. Can it then be said that these unidentified claimants are actually the descendants and inheritors of Exhibits A, B, C and D ? Claimants have not answered this question (Page 146 of the Records)

Counsel said there was no evidence at the trial Court upon which the above holding of the trial Court was predicated. He said there was evidence that Appellants on record, brought the Suit in

representative capacity, representing the people of Umukehi and Umuimeka of Orji Urata, Owerri, North Local Government as per the pleading; he said that the Respondent neither denied that in their pleading nor controvert it in their testimony. He asserted that the families or kindreds of the Appellants are families and knindreds that appeared in Exhibits A, B, C and D; that there was neither doubt expressed by the Respondent at the trial in respect of the lineage of the Appellants, nor vaccum created by the Appellants in their pleadings and evidence at the trial. Counsel also referred us to the holding of the trial Court at page 145 of the Records, still on the issue of reliance on extraneous evidence to buttress his argument.

Counsel further said that the Court relied on conjecture to arrive at its decision; that Courts of law do not embark on conjecture or guesswork as same can hardly produce a just and equitable decision, Adigiwe Vs FRN (2015) ALL FWLR (Pt. 805) 76 at 85.

On Issue 3, whether from the facts and circumstances and evidence adduced the learned trial Court was right to dismiss Appellants? claim, Counsel answered in the negative.

He said that Appellants had established their claim through unchallenged and uncontradictory evidence, supported by Exhibits A to D. He submitted that oral evidence cannot be admitted as the trial Court did, to add to, vary or contradict a written instrument. He relied on Adesoye Olanlege Vs Afro Continental Nig. Ltd (1996) 7 NWLR (PT. 458) 29. He argued that there was no challenge of the representative action by the Appellants. He relied on Section 123 of the Evidence Act, that facts admitted need no further proof. See also G.S. Pascutto Trading As COM-EST) Vs ADEECNTRO NIG LTD (1997) 11 NWLR (Pt. 529) 467. Counsel asserted that the Respondent had not surrendered the Lease as they claimed, and that the trial Court wrong to hold otherwise.

On Issue 4, whether the award of N150,000.00 as cost against Appellants was appropriate, Counsel answered in the negative. He said that award of/for cost is not a bonus to a successful party and is not awarded on sentiment. He relied on Reg. Trustees of Ireloju Vs Kuku (1991) 5 NWLR (Pt.189) 65; UBN Ltd Vs Nwaokolo (1995) 4 KLR 919.
Counsel said Appellants pursued the trial at the Court below with commitment

without delay; that it was rather the Respondent who tried to delay the process, causing the Appellant to file a motion for judgment at a time; that the processes filed by the Respondent to defend the Suit amounted to about N10,000.00. Thus, the award of N150,000.00 cost against the Appellants was unjustifiable, he said.
Counsel urged us to resolve the Issues for Appellants and allow the Appeal.

Responding, Counsel for the Respondent, E.O. Echebima Esq., on Issue 1, said the trial Court was perfectly right to say that the Respondent was not the proper person to be sued by Appellants. He relied on several decided cases, including Green Vs Green (supra); A.G. Fed. Vs A.G. Abia State (No.2) (2012) 6 NWLR (Pt.764) 542; Mobil Producing Nig. Unltd. Vs Lagos State Environmental Protection Agency & Ors (2003) FWLR (Pt.137) 1042, and Chief of Army Staff FRN Vs Lawal & Ors (2012) 10 NWLR (Pt.1307) 65, to the effect that:
All persons who may be affected by an Order of Court in respect of any matter before it, should be made parties in a Suit whether as proper parties, desirable parties or necessary parties.

He added, relying on the case of Tobi Mobil Nigeria Producing Unltd (supra), case to say that:
Any party whose interest will be directly affected, if a relief claimed in an action were granted, is the proper party of it.

Counsel said this case was fought on documentary evidence Exhibits A to D, which Appellants tendered and relied on; that the Respondent also relied on the said documents, which carried remarkable information, on the face of each of the Exhibits, a note that the Lease had been Surrendered By Shell B.P. Vide Letter at page 199 in file L3237 Signed 14/1/1963. (See Pages 62 and 79 of the Records). Counsel said, even with these documentary evidence, Appellants went on to plead and give oral evidence, in summary, that the Respondent was in arrears of Rent and in breach of the terms of the Leases and so the Leases were determined. Counsel submitted that in the face of the evidence that the Leases had been surrendered by Shell BP, the Respondent ceased to be proper party to the Suit. Counsel also referred us to Exhibits J and K by the Respondent, which disclosed those in occupation/possession of the land called Shell

Camp, Owerri (See paragraph 13 of the Amended Statement of Defence) namely:
That the area popularly known as and called Shell Camp, Owerri is now fully built up and occupied by Various persons (Works Layout) and/or Imo State and Federal Government Establishments including the Nigeria Police Force Headquarters, Owerri, State Security Services, Federal Ministry of Commerce and Industry, Federal Girls Government Collage, Alvan Ikoku Federal College of Education Owerri, The Nigeria Army (Senior Staff Quarters) to the knowledge of all and sundry, including the Claimants in this case.? See Page 32 of the Records of Appeal.

Counsel relied on the Blacks Law Dictionary 8th Edition, Page 1484, for the definition of the word Surrender in relation to land, to be:
as the return of an estate to the person who has reversion or remainder, so as to merge the estate into a larger estate.

He submitted that the Exhibits A to D have clearly, on the face of each, that the Lease had been surrendered by the Lessees to the Lessors, and he relied on the case of Emeje Vs Positive (2010) 1 NWLR (Pt.1174) 48 at 69,

where it was held:
When a document is duly pleaded, tendered and admitted in evidence, the document becomes the best evidence of its contents and therefore speaks for itself, and that being the best evidence, the Court cannot disregard the document.? See also Aiki Vs Idowu (2006) 9 NWLR (Pt.984) 47 at 63.

Counsel said that the letter referred in Exhibits A to D, at page 19 in file L3237, signed 14/1/1963?, formed part of the said Exhibits, obtained by the Appellants from the Lands Registry by Appellants. Therefore, the trial Judge was right to hold that the evidential burden was on the Appellants to also obtain and produce the said letter, to complete the Exhibits A, B, C and D; that failure to do so, apart from making the documents incomplete, also led to their failure to provide evidence to sustain their argument that the Respondent has not surrendered the lease. Counsel said it also amounted to withholding evidence, under Section 167(d) of the Evidence Act, 2011. He relied on Emeka Ogwuru Vs Co-Operative Bank of Eastern Nigeria Ltd (1994) 8 NWLR (Pt. 365) 688; SPDC Vs HRH GBA Tiebo VII & Ors (1996) 4 NWLR (Pt.445)

657. Counsel also relied on Amuda Vs Ajobo (1995) 7 NWLR (Pt.406) 170 to say that a party who has disposed of his interest in land by whatever means has no interest subsisting and is therefore not a party to be sued.

On Issue 2, whether the trial Court was right in relying on extraneous matters and conjecture to dismiss the Appellants claim, Counsel said that the trial Court did not rely on extraneous matters and conjecture to reach its decision. He referred to the findings of the trial Court on page 145 of the Records which the Appellants quarreled with, and said that those findings were founded on evidence adduced at the trial; that Appellants had sued for themselves and as representatives of the people of Umukehi and Umuimeka kindreds and had tendered the Exhibits A to D; he said that the signatories in Exhibits A to D represented different families, namely:
Exhibit A Umuimeka family and Umukehi family
Exhibit B Umunjemanze family, Umuogoba family, Umuiwuala family, Umuamadi family, Umuokorie family.
Exhibit C Umuchoko family, Umukehi family and Umuasonye family.
Exhibit D Umuonyeagocha etc (see

Pages 61 ? 80 of the Records and the Exhibits)

Counsel said that under cross examination, the CW1 admitted/confirmed that there were other kindreds in Orji and one of such was Umuasonye. Counsel added that from the pleadings and evidence of the Appellants/witnesses, there were other families and/or kindreds whose forbearers were also the lessors in Exhibits A to D, apart from the Umukehi and Umuimeka families, represented by the Appellants in the case, and there was no explanation as to the absence of the other families named/shown in the Exhibits A to D, and Appellants did not link their relationship to those other families. Counsel said that the trial Court therefore had properly appreciated the pleadings and the evidence and evaluated same properly before reaching its conclusion, complained about by Appellants.

Counsel also noted that the Appellants who represented two families (they called kindreds) rather tendered Exhibits A, B, C and D, which they relied on and claimed to represent the interest of those other families named in the Exhibits; that the Respondent was therefore right to deny knowing the Appellants in the con of the

said Exhibits A to D ? which even talked about families, not kindred.

On Issue 3, Counsel said the trial Court was right to dismiss the Appellants? claim, in the circumstances, going by the evidence before the Court (earlier analyzed above); that the burden was on Appellants to establish their claims as per Sections 131, 132 and 133 of the Evidence Act, but they failed. He relied on many Cases on the assertion that he who alleges must prove his allegation ? Calabar Co-Operative Vs Ekpo (2018) 11 MJSC (Pt.104) 130. Counsel also founded on the evidence of the CW1 to show that the Appellants admitted that the land comprised in the area popularly called ?Shell Camp? was larger or more than the 32.42 acres claimed by them; and that the said Shell Camp was acquired from many other families apart from the Lessors in Exhibits A, B, C and D (See page 126 of the Records; that also in a curious paradox, the documents (Exhibits A to D) which the Appellants relied on to prove their claim, had been determined, by the surrender by Shell ? BP to the Lessor as far back as 1963! He relied on several authorities relating to the fact that

documentary evidence is the best evidence and cannot be varied or contradicted or reviewed by oral evidence ? but that oral evidence can serve to throw more light on documentary evidence. Emeje Vs Positive (2010) 1 NWLR (Pt.1174) 48; Aiki Vs Idowu (2006) 9 NWLR (Pt. 84) 47; UTC Nig. Plc Vs Daniel Philips (2012) 6 NWLR (Pt.1295) 136; Ndulue Vs Ojiakor (2013) 8 NWLR (Pt.1356) 311; Rabiu Vs Adebajo (2012) 15 NWLR (Pt. 322) 125.

On Issue 4, the award of N150,000.00 as cost to Respondent, Counsel said award of cost is always at the discretion of the trial Court, and cannot be questioned by Appellate Court, once it was exercised properly ? judicially and judiciously. Theo Bros Auto-Link Nig. Ltd Vs Bakely International Auto Engineering Co. Ltd (2013) 2 NWLR Pt.1338) 337. He also argued that cost follows events and that a successful party should not be deprived of his cost, unless for good reasons; that the essence of cost is to compensate the successful party to recover part of the loss incurred in the litigation. Ero Vs Tinubu (2012).

Counsel also said that Appeal Court can only review the cost awarded at the Lower Court where the Appellant who

was the loser at the Lower Court succeeds on the Appeal. He relied on Okoye Vs Nigeria Construction & Furniture Co. Ltd (1991) 6 NWLR (Pt.199) 501; Ero Vs Tinubu (supra). He argued that the cost of N150,000.00 was not high; that the case lasted for about 4 years and the Respondents paid huge cost, including professional fees to ensure diligent defence. He urged us to resolve the Issues against Appellants and dismiss the Appeal.

RESOLUTION OF ISSUES
I think the four Issues donated by the Appellants (and adopted by the Respondent) for the determination of this Appeal are apt but can further be reviewed into two as follows:
(1) Whether, going by the evidence adduced in the case, the trial Court was right to dismiss the case of the claimants (Appellants herein) on the ground that the Respondent was not the proper person to be sued in the case.
(2) Whether the award of N150,000.00 (One Hundred and Fifty Thousand Naira) as cost to the Respondent against the Appellants was appropriate.

The Issue one above appears to sum up the Issues 1, 2 and 3 by the Appellants, while the Issue 2 herein is the same as Appellants Issue 4.

As admitted by the parties and their Counsel, this case was basically fought on documentary evidence, and each side had placed reliance on the foundational documents being Exhibits A, B, C and D. The said Exhibits A to D are Lease Agreements, which some native Communities or Families in Orji, Uratta, Owerri North Local Government Area of Imo State (said to be represented by the Appellants) entered into with SHELL BP PETROLEUM DEVELOPMENT COMPANY OF NIGERIA, LTD (now the Respondent) between 1952 and 1956 over some portions of lands of the Lessors in Orji, Uratta, which become known as and popularly called SHELL CAMP.

The Appellants as Plaintiffs, had claimed that their lands formed the subject matter of the said Leases in Exhibits A, B, C and D, measuring 35.42 acres; that the Lease had determined, the Respondent having failed, refused and/or neglected to pay the rent for the said Lease and to perform all other obligations under the lease agreement; that they were entitled to immediate possession of the said leased property, and to payment of N51,004.80, being arrears of rent for the said lease due and payable by the Respondent; they

also sought injunction restraining the Respondents, servants, agents or workers from further dealing with the leased property in any form or manner inimical to the interest of the Appellants. See paragraph 10 of the Amended Statement of Claim (page 60 of the Records).

The Respondent?s main answer, as per its Amended Statement of Defence, on page 32 of the Records (paragraphs 11 – 13 thereof) was:
11) that the Shell-BP Petroleum Development Company of Nigeria Ltd however between 1962 and 1963 relinquished its interest and/or title in all the land in the area popularly called and known as shell camp Owerri by surrendering same to the various Lessors as indicated minuted on the lease agreements relied on by parties in this Suit. The Defendant shall also rely on the certified true copy (CTC) of Deed of surrender registered as No. 60 at page 60 in Volume 207 of the Lands Registry Office at Owerri?
13 ? that the area popularly known as and called Shell Camp Owerri is now fully built up and occupied by various persons (Works Layout) and/or Imo State and Federal Government Establishments, including the Nigeria Police

Force Headquarters, Owerri, State Security Services, Federal Ministry of Commerce and Industry, Federal Girls Government Collage, Alvan Ikoku Federal College of Education, Owerri, The Nigeria Army (Senior Staff) Quarters to the knowledge of all and sundry, including the Claimants in this case.

I think having pleaded the facts and led evidence to show that the Leased lands had been surrendered to the land owners (Lessors) sometime between 1962 and 1963, and that respondent had relinquished its interest and/or title in all the land acquired in the area popularly called ?Shell Camp?, and having clearly shown the persons currently on the land as occupiers/possessors to be State and Federal Government Institutions and functionaries, Appellants had compelling duty to prove that in the said lease, which they admitted had determined, the Respondent was still in possession of the property, to warrant the order sought for payment of arrears of rent by Respondent and Order for immediate possession by Appellants.

Appellants, apart from pleading that the lease had determined, by failure to pay rent and fulfill other obligations expected of the

lease, had also led evidence to show, as per the endorsement on the Exhibits A, B, C and D, that the Respondent had surrendered the leased land to the lessors. See pages 62 and 79 of the Records of Appeal wherein, as pleaded by the Respondents, it was minuted on the Certified True Copies of the Lease:
Note: SURRENDERED BY SHELL ? BP VIDE LETTER AT PAGE 19 IN THE L327. Signed 14/1/63.?

It is instructive that Appellants were those who tendered the documents, that carried the above endorsements, thereby leading evidence against self on the point ? that, as at 14/1/1963, the Respondent had ?surrendered? the leased lands to the Lessors, as pleaded and stated by the Respondent.

The Respondent also gave evidence (DW1) and stated (even under Cross examination) that the Respondent had surrendered the leases to all the Lessors of the leased properties, and when challenged that the Respondent was still making use of the property in question by putting tenants thereat, DW1 answered:
?That is not true. Shell is no longer using the property? Everything that needed to be done to hand over effectively to

the Lessors were done.? See page 135 of the Records of Appeal.

It is obvious then that Appellants, by their own pleading and evidence, actually had no case against the Respondent, going by the documentary evidence and endorsement on the Exhibits A, B, C and D, that the Respondent had surrendered the lands to the lessors, as per endorsement signed on 14/1/63, shown vide a letter at page 19 in file L.3237.

And when this is considered, jointly with the pleading and evidence of the Respondent, stating those occupying/possessing the disputed land currently, being government institutions and persons completely different from and without nexus to Respondent, one wonders, why the Appellants sued the Respondent, in the first place, and still pursues this appeal against the Respondent, who, obviously, is not a proper person to be sued in the circumstances. I have not seen anywhere Appellant denied the paragraph 13 of the Amended Statement of defence, wherein the Respondent denied being on the land and stated those occupying the land now. Having admitted those pieces of evidence, including documentary evidence that the Respondent had surrendered the

leased lands, Appellants appear to be confused, or are in want of the basic knowledge of the law relating to their claim, as to who to sue, or whether they have a claim, at all, against the Respondent. I do not see how the Respondent would be affected in this case, if the judgment were to be entered for the Appellants, as the Respondent has no interest in the property. SeeTobi Vs Mobil Producing Nig. Unltd (2015) ALL FWLR (Pt.778) 808.

The trial Court appears to have considered this point, when he observed:
Counsel for the Claimants, L.C. Ugorji on seeing that note and knowing that surrender in law means ? the yielding or restoring of an estate to the person entitled to the immediate reversion or remainder i.e. yielding up of tenancy to the owner of the reversion or remainder, wherein the tenancy is submerged and extinguished by agreement or by operation of law ought to have from the same Lands Registry, sought for the said file L.3237. If he had done so, then his argument in Court as per his written address paragraph 5.03 5.12 and quoted paragraph 3(6) of the said Exhibits A, B, C and D would have held water as this

Court has been shut out from the contents of the said file L.3237 as signed on 1963, 14th January. So on the face of Exhibits A, B, C and D the lease was surrendered by Shell as far back as 1963; that being the case, the defendant? is not the proper person to be sued as defendant in this Suit? A combined reading and understanding of Exhibits A, B, C, D, J and K and evidence of PW1 and PW2 show that the area today called Shell Camp is a vast and built up area ? larger than what Claimants are claiming in this Suit? The Claimants have not clearly defined, in view of the present state of ?SHELL CAMP?, the exact area and extent of their claim? from the evidence before the Court, the Claimants have failed to prove their claim.? (Page 148 of the Records).

I cannot understand what Appellants actually wanted to achieve, when they set out against the Respondents, when, known to them, the actual persons on the land ? Government Institutions and Agencies ? are not Respondent, or agents/tenants or servants of the Respondent, and they had pleaded that the lease had determined, due to Respondent?s

failure, refusal or neglect to pay rent and observe the obligations reserved for a lease! That implies they (Appellants) had since taken over their land!
I think for failing to take action against the actual person(s) in occupation/possession of the land, and turning to harass the Respondent, Appellant were/are into some mischief, and the law cannot support them. See the case of Ajala & Anor Vs Ginikanwa & Ors (2018) LPELR ? 44469 CA, where this Court also considered a situation Appellants took out the Suit against the Respondent, seeking reversionary right to land alleged to be in possession of the Respondent, but held/occupied by 3rd parties, without joining the said actual persons in lawful occupation/possession of the lands. This Court held:
As the learned Senior Counsel for the Respondents, rightly argued, I think the learned Counsel for Appellants greatly misconstrued the decision of the trial Court when it held on pages 465 to 466 as follows:
As can be seen from a review of the evidence and address (sic) of Counsel ? this Suit has been long drawn and hotly contested, it

involves land with established institutions or infrastructure and facilities on them. I have not seen the parties disagreeing on the features on the land. The features that are agreed to be on the land are Post Office, Methodist Church, Schools, Anglican Church, Efik Quarters, Ibibio Quarters, Yoruba Quarters, Railway Station, Market. These are functional facilities and structures which the owners are enjoying.
A remarkable feature of this case in the both sides agree that those persons and institutions on the land in dispute are lawfully there. None of the parties is contending for instance, that the Methodist Church, are illegally on the land and should be thrown out. Instead, the parties have tumbled over themselves to demonstrate that these persons and institutions are not only occupying this land but are there by well documented legal documents. The Claimants have evidence and tendered documents to show that the Methodist Church is lawfully occupying where they are on the land; the Anglican Church are Lawfully occupiers; the Nigerian Railway Station is located where it is by proper legal instruments. The same with the Secondary School, Post Office,

the Quarters etc.
Defendants have also led evidence and tendered documents to the same effect with each of these institutions and facilities. Yet the Claimants have brought this Suit praying me to declare them the owners of the land where these institutions and facilities are. The Defendants have come to Court to resist that and to urge me to find instead that they are the owners. While all these are going, these institutions and persons who are lawful on these lands and enjoying them have not been made parties to the Suit. It may very well be said that the Nigeria Railways is in comatose; but it cannot be said to have died, for the living to be scrambling (over) her property. If Nigeria Railways is in comatose that cannot be said of the Methodist Church not of the Anglican Church or even the State Education Board. None of the parties have contended that any of these institutions or persons on the land has run foul of the terms of its title. Without deciding which of the parties has presented better document of title in this parties has brought any dispute against these institutions and persons on the land in dispute.

It does appear that the Suit of the Claimants here is academic?
There is nothing in the above decision to suggest that the trial Court granted the said institution sand persons, in lawful occupation of the land ownership of the portions of the land in dispute at the expense of any of the parties in this case. The trial Court merely stated, and rightly, in my view, that having acknowledged the said Institutions and persons, including Methodist Church, Anglican Church, Nigeria Railways, Post Office, Schools, Market and various Quarters ? Efik, Ibibio, Yoruba Quarters ? as lawfully occupying their respective portions of the land, whereof they have developed, and built functional structures and facilities, which they were/are enjoying, the Appellants (or parties, by extension) cannot bring this action, seeking:
A declaration that the portions of land where Post Office, Mission Hill (Methodist Church, Nigeria Diocese of Isuikwuato Headquarters), Girls Secondary School (Model School), Saint Cyprian Anglican Church, Efik Quarters, Ibibio Quarters, Trinity Methodist Church, Yoruba Quarters, and the area where the Railway Station is located, moving further into the

area where the Amaba Daily Market is situate belongs to (them) the Amaba people of Isiala Isuamawu, Isuikwuato.?
Thus, having acknowledge that the various institutions and persons were/are lawfully occupying their said portions, Appellants cannot lawfully seek an order to declare them (Appellants) owners of such portions of land, without joining the said Institutions and Persons as parties to the Suit, as making such order(s) would, certainly, affect the proprietary or possessionary or occupationary interests of the said Institutions/Parties!
It is trite law that proper parties must be in Court, before the Court can have the competence and jurisdiction to pronounce on their interest. See Green Vs Green (supra); COTECNA INTIL LTD VS CHURCH GATE NIG. LTD & ANOR. (2010) 18 NWLR (Pt.1225) 346 (SC); Proye & Ors Vs Makarfi & Ors (2017) LPELR ? 42738 (SC).
I resolve the Issue one against the Appellants, as the Respondent was not the proper party to be sued in the case, having surrendered the lease land to the Appellants, far back in 1963. They had no valid claim or cause of action against the Respondent, in the circumstances.

On Issue 2, whether the award of N150,000.00 against Appellants as cost to Respondent was appropriate, I think it is not necessary to discuss this issue any longer, having resolved the issue one of appeal against the Appellant, that the Appeal lacks merit. This is because, by the authority of the case of Okoye Vs Nigeria Construction and Furniture Co. Ltd (1991) 6 NWLR (Pt.199) 501, there is no point to consider issue of inappropriate award of cost or complaint about excessive cost awarded, where the appeal fails.

It should, however, be stated that award of cost is always at the discretion of the trial Court, and is meant to compensate the successful party, as part of his losses, incurred in the litigation. And the Court usually considers several factors, including the length of the time of the case and the trauma the parties went through to prosecute/defend the Suit and the financial inconveniences/fees incurred in the process. See ASO Savings & Loans Plc Vs Agbeyemi (2018) LPELR 45161 (CA), where my lord Belgore JCA, said:
Appellate Court do not normally entertain appeal on costs as awarded by trial Court after

judgment and when it is entertained, all the Appellate Court can do is review upward or down ward, the cost awarded by the trial Court. The Appellate Court will not set aside the judgment of a trial Court solely on the ground that the award of cost by it was wrong.
In the case of Layinka & Anor Vs Makinde & Ors (2002) LPELR ? 1770 (SC), the Supreme Court, per Uwaifo JSC, held:
When costs are awarded on the basis, i.e. judicially and reasonably to compensate a successful party, an appellate Court will be quite wary to interfere with the discretion of the Court as to the amount of costs. See Rewane Vs Okotie Eboh (1960) SCNLR 461. On the other hand, if the award is made against established principles, it will be set aside by an appellate Court. See Agidigbi Vs Agidigbi (1996) 6 NWLR (Pt.454) 300.

Appellant had not shown how the exercise of the discretion of the Lower Court, in the award of the N150,000.00 cost can be faulted. I therefore resolve the issue against Appellant and on the whole, hold that the appeal is devoid of merit. It is hereby dismissed, with cost of N50,000.00 to the Respondent, payable by

the Appellants.

RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother ITA G. MBABA JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal and abide by the consequential order made as to Costs.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I had read before now, the judgment just delivered by my learned brother Hon. Justice Ita George Mbaba, JCA. I agree with his reasoning and conclusion. I also dismiss the appeal.
I have nothing more to add. I adopt his orders as mine.

Appearances:

L.C. Ugorji, Esq. with him, R.U. Okwuego, Esq. (who settled the brief) and O.O. Kalu, Esq.For Appellant(s)

E.O. Echebima, Esq.For Respondent(s)

Appearances

L.C. Ugorji, Esq. with him, R.U. Okwuego, Esq. (who settled the brief) and O.O. Kalu, Esq.For Appellant

AND

E.O. Echebima, Esq.For Respondent