ISU & ORS v. HARRISON & MORRISON (NIG.) LTD & ANOR
(2022)LCN/16916(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, December 22, 2022
CA/B/365/2016
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Sybil Onyeji Nwaka Gbagi Justice of the Court of Appeal
Between
1. THOMAS ISU 2. PIUS AJAYI 3. JIMAH AKPADIJA 4. PATRICK AILOYAFE (For Themselves And On Behalf Of Ihievbe-Ogben Community) APPELANT(S)
And
1. HARRISON & MORRISON NIGERIA LIMITED 2. CHIEF AUDU JIMAH RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE DUTY OF THE TRIAL JUDGE
Now the duty of a trial Judge is to evaluate the evidence before him to arrive at a decision. The trial Court has the duty to evaluate the evidence adduced before it and ascribe probative value to it in deciding or preferring which evidence is credible and which evidence is unreliable before taking a decision on any matter in dispute.
The duty of the trial Judge is to assess witness, form impression about them and evaluate their evidence in the light of the impression which the Court forms of them. It is the trial Judge that has the duty to see the witnesses and hear their evidence. A Court of law is duty bound to consider the totality of the evidence led by each of the parties, then place it on the imaginary scale of justice to see which of the two sides weighs more credibly than the other. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties as disbelief of the other or a reasoned preference of one version to the other. See LAGGA & ORS V. SARHUNA (2008) 16 NWLR (PT. 1114) Pg. 427.
Therefore where such a trial Court has properly evaluated the evidence, it is not the business of the Appeal Court to substitute its own views for those of that Court of trial.
However, if the appellate Court finds some dereliction of duty in the evaluation of evidence, then it must step in or interfere to do what the trial Court should have done. PER GBAGI, J.C.A.
SYBIL NWAKA GBAGI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice, Edo State, Afuze Judicial Division delivered by Hon. Justice H.A. Courage-Ogbebor on Monday 22nd day of June, 2016.
The Appellant as Claimants before the lower Court by their writ of summons claimed as follows:-
i. A declaration that the Claimants are the holders of or deemed to hold a Customary Right of Occupancy (CRO) over all the piece or parcel of land comprising the land area of Ihievbe-Ogben village community, Owan East Local Government Area of Edo State stretching from its boundary with Igue-Oke with Udonobi as the land mark and its boundary with Ikpeshi in present day Akoko-Edo Local Government Area with Elowaje river as the boundary to its boundary with Okhumeh, one of the eight villagers of Ihievbe-Clan.
ii. A declaration that the 2nd Defendant has no rights to alienate, lease, grant license/consent to the 1st Defendant and or anyone or any person(s) over any portion of the aforesaid land area of Ihievbe-Ogben community without the consent of the claimants (now Appellants).
iii. A declaration that the 2nd Defendant is not entitled to demand, receive any benefit in cash or kind from the 1st Defendant or any other person(s) for any other such alienation, lease, license/consent or right whatsoever purported to have granted to the 1st Defendant or any person(s) by the 2nd Defendant over the Claimants’ land aforesaid.
iv. A declaration that the purported consent for mining/quarry operation in Ihievbe-Ogben village dated 24/6/2009 purported to have been given by the 2nd Defendant without a formal agreement with the Claimants is null and void and of no effect.
v. A declaration that any such benefit in cash or kind aforesaid if received by the 2nd Defendant for any such grant, alienation, lease license/consent over the Claimants’ land aforesaid is held in trust for the Claimants.
vi. An order that the 2nd Defendant renders to the Claimants a true and correct account of any such benefit in kind or cash received by him from the 1st Defendant or any other person(s).
vii. The sum of Two Hundred Million Naira (N200,000,000.00) being special and general damages for trespass by the Defendants unto the aforesaid land.
viii. An order of perpetual injunction restraining the Defendants either by themselves, their servants, agents or privies from further acts or trespass unto the Claimants’ land aforesaid.
After settlement of pleadings, the matter proceeded to trial. In a considered Judgment delivered on 1st February 2018, the learned Judge entered Judgment for the Defendants/Respondents.
Aggrieved by this Judgment, the Claimant/Appellant filed Notice of Appeal on 22nd July, 2016 containing six (6) grounds of appeal. Notice is dated 19th July, 2016.
Appellants brief of argument was filed on 26th October 2016 and same was adopted on 3rd November 2022. Neither the Respondents nor their counsel was present in Court on this day despite service of hearing notice on the counsel on 27th October, 2022 via Telephone No. 08067156201.
The Respondents’ counsel did not file brief of argument.
E. A. Otokhina, counsel for the appellants raised five (5) issues for determination as follows:
“1) Whether the learned trial Judge properly evaluated the facts of this case.
2) Whether the trial Judge can validly substitute or contradict a clear provision of law with personal opinion.
3) Whether the purported “application for consent” by the 1st respondent and the purported “Letter of consent” by the 2nd respondent without the knowledge of the appellants can qualify as the “Community Development Agreement” as required by the Nigerian Minerals & Mining Act 2007.
4) Whether from the totality of the evidence of this case, it can be said that the 1st respondent defended this case.
5) Whether the decision of the trial Court is not perverse in view of the decision in this case which is not borne out of the evidence before the trial Judge.”
On Issue No. 1, learned counsel submitted that the learned trial Judge erred in law and occasioned miscarriage of justice when he failed to properly evaluate the claims and evidence of the parties. Counsel submitted that the refusal/omission of the trial Court to interpret and apply the provision of the Nigeria Minerals and Mining Act, 2007 and the Nigerian Minerals and Mining Regulation Act, 2011 which said Acts define who is the Host Community led to the miscarriage of justice.
On Issue No. 2, learned counsel argued that the learned trial Judge erred in law and thereby occasioned miscarriage of justice when he failed to hold that the appellants by virtue of the fact that they are the persons exposed to and directly suffer the hazards of quarrying activities with its attendant blasting risks on their buildings, loss of farm land and the constant inhaling of stone dust are the Host Community who are entitled to compensation arising from the environmental pollution.
On Issue No. 3, learned counsel submitted that the learned trial Judge erred in law and misdirected himself as to who between the Appellant and the 2nd Respondent is the “owner”, “occupier” and “Host Community” who can validly enter a Community Development Agreement whose consent is required as between the Appellant and the 2nd Respondent who lives over fifteen kilometers away from the site of the quarry where the Appellants live.
It is the contention of learned counsel that the purported “Application for Consent” by the 1st Respondent to the 2nd Respondent and the purported “Re-Community Consent” by the 2nd Respondent are illegal as same cannot represent the Community Development Agreement required by the Nigerian Minerals and Mining Act of 2007.
On Issue No. 4 learned counsel contended that there is no defence to this action as DW1 (Sole witness of the Defendants/Respondents) had no authority or consent of the Respondents to defend this case. He did not tender any documentary evidence except narratives which amounted to nothing in the face of the overwhelming oral and documentary evidence of the Claimants/Appellants.
Counsel further argued that the lone witness who testified for the defence without authority to do so is a meddlesome interloper as the Supreme Court in CHIEF UGBAN OFIA & ORS V. CHIEF ISAIAH MBA EJEM & ORS (2006) LPELR – 2266 SC emphasized the essential requirements for suing or defending in a representative capacity in a representative action. They are:
(1) There must be numerous persons interested in the case on the side to be represented.
(2) All those interested must have the same interest in the suit i.e. their interest must be joint and several.
(3) All of them must have same grievance.
(4) The proposed representative must be one of them.
(5) The relief sought must in its nature be beneficial to all the persons being represented.
On Issue No. 5, Counsel submitted that the Judgment of the trial Court is against the weight of evidence and therefore perverse because the trial Court did not have regard to the totality of evidence adduced and the exhibits tendered by the Appellants. Counsel argued that the acts of ownership, sale, lease, sawing of logs and communication masts and copious documentary evidence of exercise of ownership were ignored by the trial Judge who preferred the evidence of a sole witness without consent or authority of the Respondents.
Counsel finally urged the Court to allow this appeal and set aside the Judgment by the trial Court.
As I said earlier, the Respondent did not file any defence in this appeal. It then follows that by virtue of Order 19 Rule 10 (3), this Honourable Court has gone ahead to hear the appeal on the Appellants’ brief.
BRIEF SUMMARY OF FACTS OF THE CASE
By a letter dated 3/4/2009, the 1st Defendant/Respondent wrote a letter captioned “Application for Consent for Exploration mining and quarry of granite in Ihievbe-Ogben” without any discussion, agreement or consent of the Appellants – The Host Community. (page 68 of the Record of Proceedings).
Without consultation, consent or agreement with the Appellants the 2nd Defendant/Respondent purportedly granted consent via a letter dated 24/6/2009 captioned “Re-Community consent” (page 69 of the record of proceedings) to the 1st Respondent.
The fact of the above became known to the Appellants much later after Senator Yisa Braimoh (a Director of the 1st Respondent) and one Alhaji Ozeto meditated in an attempt by the 2nd Respondent to give the Appellants’ land to Petra Quarry. The attempt was successfully resisted by the Appellants which led the 2nd Respondent to commence Suit No. HAF/10/2009 against the community leaders of the Appellants. The appeal in that case is presently pending in this Court.
Unknown to the Appellants that the 1st Respondent had obtained a purported consent from the 2nd Respondent, the Appellants leased the subject matter to Skaff Construction Company Limited whereupon the 1st Respondent commenced a suit at the Federal High Court, Benin City claiming ownership of the land by virtue of the purported consent granted him by the 2nd Respondent.
As a result of the dealings by the 1st and 2nd Respondents in the Appellants’ land, the Appellants commenced this suit at Afuze High Court on the 30th of March, 2011.
I shall adopt Issue No. 1 formulated by the Appellants counsel it being wide enough for just determination of this appeal to wit.
Whether the learned trial Judge properly evaluated the facts of this case.
Now the duty of a trial Judge is to evaluate the evidence before him to arrive at a decision. The trial Court has the duty to evaluate the evidence adduced before it and ascribe probative value to it in deciding or preferring which evidence is credible and which evidence is unreliable before taking a decision on any matter in dispute.
The duty of the trial Judge is to assess witness, form impression about them and evaluate their evidence in the light of the impression which the Court forms of them. It is the trial Judge that has the duty to see the witnesses and hear their evidence. A Court of law is duty bound to consider the totality of the evidence led by each of the parties, then place it on the imaginary scale of justice to see which of the two sides weighs more credibly than the other. Evaluation of evidence by a trial Court should necessarily involve a reasoned belief of the evidence of one of the contending parties as disbelief of the other or a reasoned preference of one version to the other. See LAGGA & ORS V. SARHUNA (2008) 16 NWLR (PT. 1114) Pg. 427.
Therefore where such a trial Court has properly evaluated the evidence, it is not the business of the Appeal Court to substitute its own views for those of that Court of trial.
However, if the appellate Court finds some dereliction of duty in the evaluation of evidence, then it must step in or interfere to do what the trial Court should have done.
In this instant appeal, I am of the view that this Hon. Court has no business to re-evaluate the evidence as being urged by the Appellants. I have not seen any dereliction of duty on the part of the trial Court.
Hence, this appeal fails and same is dismissed.
No order as to costs.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.
TUNDE OYEBAMIJI AWOTOYE, J.C.A.: I had the opportunity of reading before now the draft of the judgment just delivered by my learned brother SYBIL NWAKA GBAGI, JCA.
I am in full agreement with the reasoning and conclusion therein. I abide by the consequential orders therein.
Appearances:
Chief E.A. Otokhine For Appellant(s)
Rev. Imohi For Respondent(s)
