SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED v. CHIEF TRUELOVE ORUAMBO & ORS
(2011)LCN/4235(CA)
In The Court of Appeal of Nigeria
On Thursday, the 13th day of January, 2011
CA/PH/62/2005
RATIO
COMPETENCE OF THE COURT: POSITION OF THE LAW ON THE EFFECT OF ANY DEFECT IN THE COURT’S COMPETENCE TO ENTERTAIN THE SUIT
…as held in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341 at 348 any defect in the court’s competence to entertain the suit is fatal, for the proceedings are a nullity, however well conducted and decided; the jurisdiction is extrinsic to the adjudication. PER EJEMBI EKO, J.C.A
ISSUE OF JURISDICTION: WHAT WILL BE LOOKED AT IN DETERMINING THE QUESTION WHETHER OR NOT A COURT HAS JURISDICTION TO ENTERTAIN A CLASS OF ACTION
I agree with M.A. Essien SAN of counsel to the Appellants that the question whether or not a court has jurisdiction to entertain a class of action is to be decided on the basis of the averments contained in the statement of claim. PER EJEMBI EKO, J.C.A
JOINDER OF CAUSES: PURPOSE OF THE RULE PERMITTING JOINDER OF CAUSES
The rule permitting joinder of causes is designed to prevent multiplicity of actions and thus save the parties unnecessary costs. It is also convenient and economical for the court. In EDILIT LTD v. ELIAS KHAWAM & OTHERS LTD (1966) NMLR 289 where the Plaintiff joined on the same writ claims in respect of two building contracts against the Defendants, it was held to be proper since no injustice was thereby caused to the Defendants. PER EJEMBI EKO, J.C.A
CAUSE OF ACTION : MEANING OF THE TERM “CAUSE OF ACTION”
A cause of action in the Nigerian Jurisprudence is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another, or the facts which constitute the essential ingredients of an enforceable right or claim. See EGBE v. ADEFARASIN (1985) 5 SC 50 AT 87, ALESE v. ALADETUYI (1995) 7 SCNJ 40 at 50. PER EJEMBI EKO, J.C.A
ISSUE FOR DETERMINATION: WHAT IS AN ISSUE IN THE APPEAL
An issue in the appeal, as I understand it, is the point or question that has arisen in the judgment appealed and which forms the basis of the appeal and therefore which requires the resolution by the appellate court. That is what I understand it to be from a number of authorities including METAL CONSTRUCTION (W.A) LTD v. MTLGLIORE (1990) 1 NWLR [pt.126] 299; TSHOLA v. AJIBOYE (1998) 1 NWLR [pt.532] 71; UNITY BANK PLC V. BOUARI (2008) 7 NWLR [Pt.1086] 372. PER EJEMBI EKO, J.C.A
ISSUE FOR DETERMINATION: PURPOSE FOR FORMULATING ISSUES FOR DETERMINATION; CONSEQUENCE OF THE ISSUES FOR DETERMINATION NOT BEING DISTILLED FROM THE DECISION APPEALED
The main purpose for formulating issues for determination is to enable the parties get focused on the real questions in dispute or controversy in the grounds of appeal. In any appeal in this Court only issues formulated within the parameters of the grounds of appeal and stemming from the decision appealed are competent to be ventilated. See AGBAKOBA v. INEC (2008) 18 NWLR [pt.1119] 489 at 531; SHA v. KWAN (2000) B NWLR [pt.670] 685. Issues for determination must stem from the decision appealed. And if not, they are incompetent. PER EJEMBI EKO, J.C.A
JUSTICES
MUSA DATIJJO MUHAMMAD Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)
AND
1. CHIEF TRUELOVE ORUAMBO
2. CHIEF CAPTAIN IGBANIBO
3. CHIEF GOGO SUNDAY LULU BRAIDE
4. CHIEF LEVI BILNUT BRAIDE
5. CHIEF B.T. TYGER BRAIDE
6. SILVANUS G. BRAIDE
7. BOMA S. EMMAUNEL
8. RANSOME BENIBO
9. CHIEF C. T. BRAIDE
10 PHIL ANOZIE
11. OKON D. UDOFIA Respondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): Before the Rivers State High Court (Coram: E.N. Ebete, J) the Appellant was the 1st Defendant at the suit of the 1st – 9th Respondents. The Appellant was sued along with two others, namely the 10th and 11th Respondents, who respectively were the 2nd and 3rd Defendants at the trial court. The Appellant and the 1st – 9th Respondents exchanged pleadings. The 1st-9th Respondents, as plaintiffs, filed a joint statement of claim on 16th May, 2000 wherein they claimed against the three Defendants as follows:-
i. A declaration that the Defendants, especially the 1st Defendant has no right to effect compensation payment to any person or group of persons, with respect to the Gas Gathering Associated Pipeline Project Structural Assessment which assessment took place on the 24th-28th days of February, 1999 at Cawthorne Channels 1, 2 and 3, along New Calabar river in Bakana Town of Degema Local Government Area of Rivers State, when the claims assessed for the Plaintiffs on that day were all removed from those to be compensated.
ii. A declaration that the Plaintiffs are entitled to be compensated at the same time with all the individual clamants in respect of the GAS GATHERING ASSOCIATED PIPELINE PROJECT STRUCTURAL ASSESSMENT which ASSESSMENT took place on 24th-28th days of February, 1999 At CAWTHORNE CHANNELS 1, 2 AND 3 along New CALABAR RIVER in BAIGNA TOWN of DEGEMA Local Government Area of Rivers State. Furthermore, an order of this Honourable Court that the Plaintiffs are entitled to compensation in the following orders –
a. 1st Plaintiff is entitled to the sum of N20,500,000.00 (Twenty Million Five Hundred Thousand Naira) only.
b. 2nd Plaintiff is entitled to the sum of N12,000,000.00 (twelve Million Naira) only.
c. 3rd Plaintiff is entitled to the sum of N10,000.000.00 (Ten Million Naira) only.
d. The 4h Plaintiff is entitled to the sum of N10,000,000.00 (Ten Million Naira) only.
e. The 5th Plaintiff is entitled to the sum of N10,000,000.00 (Ten Million Naira) only.
f. The 6th Plaintiff is entitled to the sum of N10,000,000.00 (Ten Million Naira) only.
g. The 7th Plaintiff is entitled to the sum of N10,000,000.00 (Ten Million Naira) only.
h. The 8th Plaintiff is entitled to the sum of N10,000,000.00 Ten Million Naira) only.
i. The 9th Plaintiff is entitled to the sum of N10,000,000.00 (Ten Million Naira) only.
The 2nd and 3rd Defendants, the present 10th and 11th Respondents, were presented in the statement of claim’ and sued, as “agents of the 1st Defendant” and that they “specialize in damage assessment, survey activities” and that between 24th and 28th days of February, 1999 they carried out evaluation or assessment of all property affected by the said Associated Gas Gathering Project at Cawthorne Channels 1, 2 and 3 along New Calabar River in Bakana Local Government Area at the instance of the 1st Defendant, the Appellant. That their “properties and that of the various claimants –were all assessed.” That notwithstanding the fact that during field assessment exercise by the 2nd and 3rd Defendants, during which their respective properties were identified “their names were removed from the list deliberately.” And that “they are entitled to be compensated by way of compensation payment just like any other person or group of persons who were assessed that day.”
The 1st plaintiff, testifying as PW1, produced and tendered the field assessment report for the 9 plaintiffs as Exhibits ‘A – A8’ – see page 30 of the Record. The counter-affidavit deposed to by the 3rd Defendant (now 11th Respondent) on 25th November, 1999 in opposition to an interlocutory application was also tendered through PW1 as Exhibit ‘B’. This exhibit forms part of the Record of proceedings at pages 14 and 15 of the Record. The 1st – 9th Respondents, as the plaintiffs, had pleaded in paragraph 15 of their statement of claim that –
The Defendants are estopped from denying that plaintiffs were not on the field of assessment, as 3rd Defendant admitted in his counter-affidavit filed on 25th November, 1999 the submission of list by the plaintiffs and other claimants.
It appears Exhibit ‘B’ was produced for a specific purpose of estoppel of previous statement in writing or admission.
The plaintiffs cause of action, as I earlier summarized, is adumbrated in paragraphs 4 – 16 of the statement of claim. The 2nd and 3rd Defendants, now 10 – 11th Respondents, filed no defence to join issues with the plaintiffs. They also did not call any evidence in their defence. As facts not disputed are taken as established; the plaintiffs’ assertion that 2nd and 3rd Defendants, in the field exercise culminating in Exhibits A – A8, were agents of the 1st Defendant, the present Appellant, should therefore be taken as established. The 1st Defendant did not, from the statement of Defence, seriously dispute or challenge that fact. Nowhere in the statement of defence did the 1st Defendant deny that the 2nd and 3rd Defendants were his agents for the purpose of that field assessment exercise from which Exhibits A – A8 were produced by the 2nd and 3rd Defendants. That is the essence of paragraph 4 of the statement of claim.
It is in paragraph 6 of the statement of Defence that 1st Defendant, the Appellant, made some efforts at joining issues with the Plaintiffs in some of their allegations. Paragraph 6 of the statement of Defence is as follows:_
6. paragraphs 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15 and 16 of the statement of claim are categorically denied and in answer the 1st Defendant avers as follows-
a) For the purposes of its Oil and Gas prospecting business, the 1st Defendant lawfully acquired land in some communities including Bakana, Abonema and Buguma to establish a Gas Gathering Project.
b) The 1st Defendant duly paid compensation to all communities including Bakana and individuals whose properties were affected by the acquisition and in respect of paragraph 6 only of the plaintiff, affidavit sworn to by the 1st plaintiff on 8.10.99 and attached to the plaintiff, motion for interlocutory injunction dated 8.10.99 and filed the same day is hereby pleaded.
c) The plaintiffs were not paid because their properties were not affected in any way or manner and the 1st Defendant is not a Father Christmas.
d) The 1st defendant is prepared to pay the plaintiffs if at the end of the day, the Honourable Court rightly decrees compensation or payment in their favour,
The Plaintiffs claim that they are among those whose properties were affected or acquired in Bakana, in Degema Local Government Area; that they were among those whose properties were identified, enumerated and assessed for payment of compensation by 2nd and 3rd Defendants on behalf of the 1st Defendant and that for that exercise the 2nd and 3rd Defendants were agents of the 1st Defendant. Their grouse is that notwithstanding Exhibits ‘A – A8″ prepared by 2nd and 3rd Defendants, they were wrongly excluded, and not paid the assessed compensation, by the 1st Defendant. The 1st Defendant has not said that the 2nd and 3rd Defendants were not his agents. The 2nd and 3rd Defendants, in their taciturn, have also not said that they were not agents of the 1st Defendants. The fact that they were agents of 1st Defendant is a fact not challenged or disputed.
As I earlier stated, the evidence for the plaintiffs were the oral evidence of PW.1, and Exhibits’A – A8 and B. ‘The 1st Defendant called two defence witnesses, DW.1 and DW.2, whose evidence are at pages 35 – 38 of the Record. The 1st Defendant did not produce or tender the Affidavit of the 1st Plaintiff which they pleaded in paragraph 6(b) of the statement of Defence. At the close of evidence only the counsel for 1st Defendant, and the plaintiffs, submitted written addresses. The 2nd and 3rd Defendants did not file or submit written addresses. In his reserved judgment, delivered on 13th June, 2003, the learned trial Judge found for the plaintiffs and holding, at page 66 of the Record, in the final analysis that:-
It is my candid view that the plaintiffs have established their case which accordingly succeeds. Each Plaintiff is therefore entitled to his claim as contained in Exhibits ‘A – A8, the total claim which is also contained in Exhibits ‘A – A8’.
It is against this judgment that the 1st Defendant has appealed.
The original Notice of Appeal has three (3) grounds of appeal. upon leave granted on 16th February, 2009 the 1st Defendant, as the Appellant, filed Amended Notice of Appeal containing 10 grounds of appeal. In the brief of argument the Appellant erected only three (3) issues from the said 10 grounds of appeal as follows:-
i. whether the trial court lacked jurisdiction to entertain the suit?
ii. whether the award in the sum of N102,500,000.00 made by the learned trial judge was correct in law?
iii. Whether the suit is bad for misjoinder of parties and the cause of action?
The three issues were adopted by the 1st – 9th Respondents. The appeal was heard on 22nd November, 2010. Appellant’s counsel, M.A. Essien, SAN identified and adopted the Appellant’s Brief dated 29th January, 2009 but deemed filed on 16th February 2009, and the Appellant’s Reply Brief filed on 10th May, 2010 and urged that the appeal be allowed on all the issues formulated and argued in the briefs. For the 1st – 9th Respondents Dr. Amuda-Kannike, on the other hand, urged that the appeal be dismissed based on the brief of 1st – 9th Respondents filed on 26th March, 2009 but deemed filed on 29th April, 2010.
I will take issue 1 first since it touches on jurisdiction of the trial court to entertain the suit. For, as held in MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 341 at 348 any defect in the court’s competence to entertain the suit is fatal, for the proceedings are a nullity, however well conducted and decided; the jurisdiction is extrinsic to the adjudication.
Appellant, under this issue, submits that from the pleadings, the testimonies and the exhibits in the case, it is not in doubt that the land was acquired or the properties of the plaintiffs were allegedly damaged in the course of Associated Gas Gathering project and that it has been settled in SPDC v. ISAIAH (2001) 11 NWLR [Pt.723] 168 at 179 180, SPDC v. MAXON (2001) 9 NWLR [pt.719] 541; MPIDI BARRY v. ERIC (1998) 8 NWLR [pt.562 at 404; CGG v. ASAGBARA (2001) 1 NWLR [pt.693] 155; EMEJURU v. ABRAHAM (2008) 3 NWLR [pt.1075] 491 at 500 B – C that the jurisdiction of the State High Court in all causes or matters connected with or pertaining to oil and gas mining has been ousted by section 25I (1) (n) of the 1999 Constitution read together with section 7 (1) (p), (3) and (5) of the Federal High Court Act as amended. Appellant also called in aid the definition of the word “gather” meaning “to collect or harvest – to amass – to cause to collect or come together, in BLACK’S LAW DICTIONARY 6th ed. at page 393.
Dr. Amuda-Kannike for 1st – 9th Respondents, in reply, submits that this case, being a simple case for compensation for land acquired, does not come within the purview of oil and gas exploration or any matter connected with, pertaining to, or relating to oil and gas exploration. Counsel submits that section 251 (1) (n) of the 1999 Constitution read together with section 7(1) (p), (3), and (5) of the Federal High court Act and the case of SPDC v. ISAIAH (supra) and the host of cases cited by Appellant’s counsel are irrelevant and inapplicable to this case. For the submission that the jurisdiction of the State High Court is not ousted in a claim for agreed compensation for land acquired for oil and gas exploration Respondents’ counsel submits that in the case of NKUMA v. ODILI (2006) 6 NWLR [pt.977] 587 the Supreme Court held that meaning of the expression “connected with or pertaining to mines and minerals including oil fields “should not be stretched beyond reasonable limit to demand for payment of compensation by land owners for their land acquired. He submits further on authority of SHELL-BP PETROLEUM DEVELOPMENT CO NIG LTD v. FUFEYIN (1979) 11 CA 24 at 32 that there exists a distinction between claim for money due as compensation for land acquired, and the claim for the land or interest in it. The action of the plaintiffs/Respondents, counsel submits, has to do with the breach of the promise to pay agreed compensation, evidenced by Exhibits ‘A – A8’.
I agree with M.A. Essien SAN of counsel to the Appellants that the question whether or not a court has jurisdiction to entertain a class of action is to be decided on the basis of the averments contained in the statement of claim.
Now, looking at the statement of claim of the Plaintiffs in this case, it is clear that what the Plaintiffs/Respondents sought at the High court is a declaration that they are entitled to be paid the compensation, as assessed by the 2nd and 3rd Defendants on behalf of the 1st Defendant, for their land acquired by the 1st Defendant for the Associated Gas Gathering Project. They want to be paid compensation on the basis of that assessment like any other person paid by the 1st Defendant also on that assessment exercise. They do not see why they should be excluded or discriminated against. Their case is that the 2nd and 3rd Defendants had, on behalf of the 1st Defendant, assessed the compensation payable, which they are agreeable to, or have agreed to receive. Surely, an action for debt can not come under section 251 (1) (n) of the 1999 constitution and section 7 of the Federal High court Act so as to oust the jurisdiction of the state High Court. I think, as Oguntade JSC stated in NKuma v. Odili (supra) at page 602 that the Appellant’s counsel has stretched beyond reasonable limit the meaning ascribed to the expression “connected with or pertaining to mines and minerals including oil fields.” In section 251 (1) (n) of the 1999 Constitution and section 7 of the Federal High Court Act as amended. SPDC v. ISAIAH (supra) and all cases that followed it can not be stretched to the situation, as in this suit, where the plaintiffs seek a declaration that they, like others affected are entitled to be paid the compensation assessed as payable to them by the 1st Defendant and/or its agents. The way the reliefs are couched can mislead any person to thinking that the plaintiffs are claiming damages for their land acquired for gas exploration. They are not contesting the acquisition nor the quantum of the compensation. All they say or claim is merely that declarations that they are entitled to be paid the compensation mutually agreed as the compensation for the land. As Abgaje, JCA (as he then was) put it in SHELL-BP PDC v. FUFEYIN & ANOR (supra) at page 32 –
By the action, as framed, the plaintiffs are seeking to recover from the defendant what both sides put as the compensation due from one side to the other for the damage done by the defendant to the plaintiff’s property. The claim before the court is for money and not for land or for interest in land.
I will, and do hereby, resolve this issue against the Appellant. The claim before the trial court is simply for the court to declare that the plaintiffs are entitled to be paid the money agreed as the compensation from the 1st Defendant to them for their land either acquired or damaged.
Issue 3 is whether the suit at the trial court was not bad for misjoinder of parties and causes of action?
The complaint here is that from paragraphs 1, 2, 5, 6, 7, 9, 10, 12 and 13 of the statement of claim there are 9 plaintiffs who claim to represent other persons, that the plaintiffs on the writ did not sue in a representative capacity, and that even at that the named plaintiffs do not have the same interest. M. A. Essien SAN of counsel to the Appellant therefore submits that the suit does not fall within the purview of Order 11 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 1987 under which the suit was taken out. The learned senior counsel pointed out that in paragraph 3 and 4 of the statement of defence the 1st Defendant challenged the propriety or competence of the suit on grounds of misjoinder of parties. Submitting on the effect of misjoinder, the learned senior counsel opined that once the capacity on the writ is not made out the action must fail. For this UKAITA v. NDINAEZE (1997) 4 NWLR (Pt.499) 251 at 275, CHAPMAN V. CFAO 9 WACA 18, DUKE V. HENSAHAW (1940) 6 WACA 200 AND DISU & FARO V. ADELE (1959) LL.R. 131 were cited. The senior counsel further opined that for the suit to be competent all the plaintiffs must have the same interest, and not merely that it was the similar acts of the Defendant that gave rise to the cause of action. For this she referred to T. Akinola Aguda: Practice & Procedure of the Supreme Court, Court of Appeal and High Court of Nigeria 2nd ed. at page 91; AMACHREE v. NEWINGTON 91950) 20 NLR 13; (1952) 14 WACA 97, OGOLO v. FUBARA (2003) 11 NWLR (Pt.831) 231 at 261 G. This is just one facet of the complaint under issue 3. The second leg of the issue is about misjoinder of causes of action.
Dr. Amuda-Kannike for 1st – 9th Respondents seems to hold the view or opinion that the complaint in this leg of issue 3 is merely that the plaintiffs did not bring the suit in a representative capacity. Counsel submits that once there is evidence about the capacity the plaintiff has brought out the suit the court should endeavour to do substantial justice and save multiplicity of actions by amending the capacity in which the suit is brought. For this counsel refers to FIDELIS NWADIALO: CIVIL PROCEDURE IN NIGERIA 2nd ed. at page 117 and a number of cases.
What does Order 11, Rule 1 of Rivers State High Court (Civil Procedure) Rules, I987 say? It provides –
All persons may be joined in one action as Plaintiffs in whom any right to relief (in respect of or arising out of the same transaction or in a series of transactions) is alleged to exist whether jointly, severally, or in alternative, where, if such persons brought separate actions, any common question of law or fact would arise; and any judgment may be given for such one or more of the Plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.
Provided that if , upon the application of any defendant, it appears that the joinder may embarrass any of the parties or delay the trial of the action, the Court or a Judge in chambers may order separate trials or make such other order as may be expedient in the circumstances.
I read the opinion of T. Akinola Aguda: PRACTICE & PROCEDURE OF THE SUPREME COURT, COURT OF APPEAL AND HIGH COURT OF NIGERIA (supra) at page 112, paragraph 10.5 and I agree that the object of this Rule is to prevent multiplicity of actions wherever possible where several persons would have been entitled to bring several actions in which a common question of law or fact would have needed to be determined. For the application of the Rule, there must have been a single cause of action which must have arisen from the same transaction or same series of transactions.
It is clear from the pleadings that the single cause of action in this suit arose from the valuation or assessment for payment of compensation to all those whose lands were either damaged or acquired by the 1st Defendant for Associated Gas Gathering Project in the Plaintiff’s community. The 1st Defendant engaged the 2nd and 3rd Defendants to identify the persons affected and do assessment of compensation due and payable to the affected persons. The plaintiffs, claiming to be among those whose properties were affected and in favour of whom assessments for compensations were done, are aggrieved that others affected likewise were paid and they were not paid. That is why they have brought declaratory reliefs that they are, like others, entitled to be paid the assessed compensation.
This case is distinguishable form AMACHREE V. NEWINGTON (supra), and the host of other cases decided under it, including KUKOYI & ORS V. LADUNNI (1979) 11 C 245; (1976) NSCC 582. The distinction lies in the fact that Order 11, Rule 1 of Rivers State High Court (Civil Procedure) Rules, 1987 and the Rules under which AMACHREE (supra) and KUKOYI V. LADUNNI (supra) where decided are not in pari material. Order 11, Rule 1 of Rivers State permits that all persons may be joined in one action as plaintiffs in whom any right to relief, in respect of or arising out of the same transaction or in a series of transactions is alleged to exist either jointly or severally, or in alternative. The Rule will apply where, if such persons brought separate actions, a common question of law or fact would arise. See T. Akinola Aguda etal (op cit) at page 113.
The proviso to Order 11 Rule 1 of the Rivers State High Court (Civil Procedure) Rules gives the Defendant a remedy. If he objects on the grounds that the cause of action brought together can not be conveniently tried in the same proceedings, the court may order separate trials, or make such other order as may be expedient in the circumstances. On this ground the Defendant, according to FIDELIS NWADIALO: CIVIL PROCEDURE IN NIGERIA (supra) at page 141, can not apply to set aside the writ of summons, let alone the judgment. This is regarded as a mere irregularity, and it can be waived. The Defendant who has taken steps in the proceedings without raising the objection would be deemed to have waived the irregularity. See ADELEKE v. AWOLIYI (1962) 1 ALL NLR 260; AKHIWU v. THE PRINCTPAL LOTTERTES OFFTCER, MID-WESTERN STATE OF NIGERIA (L972) 1 ALL NLR [pt.1] 229.
On this same issue, Appellant submits that the suit instituted at the trial court was incompetent because 1st -9th Respondents, as Plaintiffs, did not have the same interest in the subject matter against the Defendants and therefore there was misjoinder of causes of action. It is submitted further that the Plaintiffs/Respondents, as individuals, do not have the same interest in each others’ individual right.
The rule permitting joinder of causes is designed to prevent multiplicity of actions and thus save the parties unnecessary costs. It is also convenient and economical for the court. In EDILIT LTD v. ELIAS KHAWAM & OTHERS LTD (1966) NMLR 289 where the Plaintiff joined on the same writ claims in respect of two building contracts against the Defendants, it was held to be proper since no injustice was thereby caused to the Defendants.
In the instant case the Appellant has not shown what injustice would be caused to him by the suit of the Plaintiffs/Respondents, as constituted against him.
The situation in ORAGBADE v. ONITIJU (1962) 1 ALL NLR 32, one of the cases cited by the Appellant, is different from what obtains in the instant case. There, the Plaintiff and his neighbours each had their separate farms in the adjacent areas. The suit of the Plaintiff, not only for himself but for and on behalf of his neighbours, seeking to protect their interest in the lands was held improper and not properly constituted as there was no common interest between the Plaintiff and the persons he purportedly jointly sued on behalf of. He could not sue on their behalf it was held. A similar scenario played out in UKATTA v. NDINAEZE (1997) 4 NWLR [pt.499] 251 where in the cross-suit no HOR/20187 there were three causes of action vesting in three separate adjacent families. They all have different grievances. It was held that the Plaintiffs and those they represent, in respect of the 3 parcels of land, can not sue for himself and on behalf of the other two families since they do not have the same interest in the one suit within the meaning of Order 4 Rule 3 of the 1962 High Court Rules of Eastern Nigeria.
A cause of action in the Nigerian Jurisprudence is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another, or the facts which constitute the essential ingredients of an enforceable right or claim. See EGBE v. ADEFARASIN (1985) 5 SC 50 AT 87, ALESE v. ALADETUYI (1995) 7 SCNJ 40 at 50.
The factual situation in this suit is that the 1st Defendant/Appellant had engaged the 2nd and 3rd Defendants/Respondents to undertake a survey of the Bakana community, among others, and identity those whose property were affected by its Associated Gas Gathering project, and assess the said property for compensation. The Plaintiffs/Respondents claim that their properties were surveyed, identified and assessed for compensation like others in the area. Their grouse is that the 1st Defendant/Appellant paid some other persons similarly identified for payment of compensation and refused to pay them. That is the basis of the suit in which they seek declaratory reliefs that they are entitled to be paid compensation based on the assessment done by 2nd and 3rd Defendants/Respondents on behalf of 1st Defendant/Appellant.
There was no relief for special or general damages. There is no doubt that they have the same cause of action arising from the same transaction against the Defendants and by which a right to relief enures to them against the Defendant. As I stated earlier in this judgment, by virtue of Order 11 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 1987, all persons may be joined in one action as Plaintiffs in whom any right to relief, in respect of or arising out of the same transaction or in series of transactions, is alleged to exist jointly, severally or in alternative. The important thing, for operation of Order 11, Rule 1, is that “any common question of law or fact would arise” in the suit by such joint Plaintiffs. In the suit of the Plaintiffs, now 1st – 9th Respondents, a common question that arose is whether the Plaintiffs, as beneficiaries of the assessment in Exhibit ‘A – A8′, were entitled to be paid the assessed compensation. In answer the 1st Defendant/Appellant, in paragraph 6(b) (c) and (d) of the statement of Defence has stated
6.(b) The 1st Defendant duly paid compensation to all communities including Bakana and individuals whose properties were affected by the acquisition – –
(c) The Plaintiffs were not paid because their properties were not affected in any way or manner and the 1st Defendant is not a Father Christmas
(d) The 1st Defendant is prepared to pay the Plaintiffs if at the end of the day, the honourable court rightly decrees compensation or payment in their favour.
The narrow dispute at the trial court is therefore the right of the Plaintiffs to be paid the compensation, as assessed. That also is the substance of the declaratory reliefs, they sought against the Defendants. In my judgment the Plaintiffs’ suit at the trial court was properly constituted under Order 11, Rule 1 of the applicable and relevant Rules of court.
Issue 3 is accordingly resolved against the Appellants in favour of 1st – 9th Respondents, the Plaintiff.
Issue 2, is, whether the award of compensation in the sum of N102,500,000.00 made by the learned trial Judge to the 1st – 9th Respondents was correct in law? This issue is said to have been distilled from grounds 2, 4, 7, 8, 9 and 10 of the grounds of appeal.
An issue in the appeal, as I understand it, is the point or question that has arisen in the judgment appealed and which forms the basis of the appeal and therefore which requires the resolution by the appellate court. That is what I understand it to be from a number of authorities including METAL CONSTRUCTION (W.A) LTD v. MTLGLIORE (1990) 1 NWLR [pt.126] 299; TSHOLA v. AJIBOYE (1998) 1 NWLR [pt.532] 71; UNITY BANK PLC V. BOUARI (2008) 7 NWLR [Pt.1086] 372.
The main purpose for formulating issues for determination is to enable the parties get focused on the real questions in dispute or controversy in the grounds of appeal. In any appeal in this Court only issues formulated within the parameters of the grounds of appeal and stemming from the decision appealed are competent to be ventilated. See AGBAKOBA v. INEC (2008) 18 NWLR [pt.1119] 489 at 531; SHA v. KWAN (2000) B NWLR [pt.670] 685. Issues for determination must stem from the decision appealed. And if not, they are incompetent. This issue 2 appears to me to be incompetent.
I have painstakingly gone through the judgment of the trial court from pages 49 to 66, both inclusive. I can not see where in the judgment the learned trial Judge awarded the sum of N102,500,000.00 as compensation in favour of the Plaintiffs’ now 1st – 9th Respondents in this appeal. The learned trial Judge found or held at Page 66 of the Record that
..it is my candid view that the Plaintiffs have established their claim which accordingly succeeds. Each Plaintiff is therefore entitled to his claims as contained in Exhibits ‘A – AB” the total claim which is also contained in Exhibits ‘A – A8’.
The operative word in this judgment and the reliefs sought together with the reaction of the 1st Defendant in paragraph 6 (c) and (d) (earlier reproduced) to the claims of the Plaintiffs/Respondents is the word ENTITLED which is not a technical term. It is a passive verb which according to Oxford Advanced Learner’s Dictionary means to give somebody a right to have or to do something. In the ENGLISH THEASAURUS it is a synonym of phrases like “fit for” or “qualify for.” Therefore in my view all that the trial Judge did in the judgment is simply a declaration that Plaintiffs/Respondents qualify for or are fit for their claims made out in Exhibits ‘A -A8’. In other words the trial court has declared that the Plaintiffs/Respondents have the right to call or ask the 1st Defendant/Appellant to pay them the compensation as assessed in Exhibits ‘A – A8’.
Let me consider some of the arguments of the Appellant under this issue. One of such arguments or complaints is that ‘the learned trial Judge relied on Exhibits ‘A – A8’ and the evidence of PW.1 and failed to accord probative value to Exhibit ‘B’ and the Appellant’s defence.” The fallacy in this argument lies in the position of the law that the trial court is not obliged to accord probative value to every piece of evidence. Suffice only that in coming to a decision to believe or disbelieve a witness or a piece of evidence the trial Judge is required to do proper evaluation of the totality of the evidence in line with the principle in MOGAJI v. ODOFIN (1978) 4 SC 91 at 93. The Judge, not being a robot or an automaton, in every step he takes his discretion is called to play, whether in interpreting the law or in deciding the case one way or the other. See FAWEHINMI v. AKILU & ANOR (1987) 4 NWLR [pt.67] 797 at 843 F. Believing or disbelieving a witness is an exercise of that judicial discretion vested in the trial Judge. And where there are materials to support such belief or disbelief the appellate court will not interfere with the discretion, or the findings of fact. See FABUNMI v. AGBE (1985) 1 NWLR 299; NNAJIOFOR v. UKONU (1985) 2 NWLR 686.
Appellant complains that Exhibit ‘B’ was not accorded any probative value. It was produced specifically to verify the averment in paragraph 15 of the statement of claim that “the Defendants are estopped from denying that the Plaintiffs were not on the field assessment, as the 3rd Defendant admitted in his counter-affidavit filed on 25th November, 1999 the submission of lists by the Plaintiffs and other claimants.” The 2nd and 3rd Defendants, the makers of Exhibits ‘A – A8’ for the 1st Defendant, did not testify. The effect of Exhibits ‘A-A8’ and Exhibit ‘B’ is that the Defendants carried out field exercise to identify the owners of the property affected and to assess their values, and further that the Plaintiffs/Respondents were among those whose property(s) were assessed for payment of compensation. Exhibits ‘A – A8′ were pleaded against the defendants as admission against interest.
It is also Appellant’s contention that the trial Judge was wrong for not according any probative value to the evidence of DW.1 and DW.2 merely because he said they were not present when the assessments took place. Both DW.1 and DW.2 admitted under cross examination that they were not present when the assessments were done in Bakana community. The purport of their evidence-in-chief is that the Plaintiffs/Respondents were not paid compensation because their property were not among those whose property were assessed for compensation. From the Record, the DW.2 was clearly not a witness of truth. His evidence on oath at page 37 of the Record is to the effect that the Plaintiffs/Respondents, who are from Bakana, were not assessed for payment, nor paid the compensation because no assessment for individuals was done at Bakana Town as no right of way passed through Bakana.
This unfortunate piece of evidence was fatally unkind to the pleading of the 1st Defendant in paragraph 6(b) of the 1st Defendant’s statement of Defence that 1st Defendant paid compensation at Bakana to all those whose properties were affected by the acquisition. The net result is that there is nothing of any probative value in the evidence of DW.1 and DW.2. The trial Judge therefore rightly did not accord any probative value to their evidence, as he did at page 68 of the Record, and asked why did the 2nd and 3rd Defendants who actually took part in the transaction and who knew actually what happened failed (sic) to come to court to say what they actually did and to say if the plaintiffs’ properties on the land were or were not assessed by them?
The mind of the trial Judge is clearly tilted at page 68 of the Record towards invocation of the presumption under section 149 (d) of the Evidence Act. That is, that the makers of Exhibits ‘A – A8’, the 2nd and 3rd Defendants, were not called because if they were called their evidence would be unfavourable to the defence. The trial Judge’s position here is unassailable.
Appellant further submits that since they challenged the existence of Exhibits ‘A-A8’, if the maker was not called to give evidence no weight should be attached to the document. G. CHITEX IND. LTD v. O.B.I (NIG) LTD (2005) 14 NWLR [pt.945) 392 at 411 D is said to be the authority for the submission. The defence evidence did not offer any effective challenge to Exhibits ‘A – A8’ in the first place. Secondly, notwithstanding the copious averments in the statement of claim that the assessments in Exhibits ‘A – A8’ were done by the 2nd and 3rd Defendants on behalf of the 1st Defendant, the 2nd and 3rd Defendants did not deny, either by filing pleadings or by means of evidence, these assertions. The law is trite: facts not disputed are taken as estabtished. I have had a critical look at the statement of defence of the 1st Defendant at pages 24 and 25 of Record. I am unable to see any challenge to or denial of the authorship of Exhibits ‘A-A8’ by 2nd and 3rd Defendants at the instance of the 1st Defendant. The non traverse of these facts is clearly an admission. By virtue of section 75 of the Evidence Act the Defendants are deemed to have admitted these facts and they no longer need to be proved. Their proof is no longer necessary because admitted facts cease to be facts in issue. See DIN v. AFRICAN NEWSPAPERS OF NIG. LTD (1990) 3 NWLR [pt.139], IGWE v. ACB PLC (1999) 6 NWLR [pt.605] 1 at 11.
Appellant has strenuously impressed on us that –
The claim of the 1st – 9th Respondents for N102,500,000.00 for compensation is a claim in special damages and must meet the requisite standard set down by the Supreme Court in several cases.
I had earlier opined that the reliefs sought by the plaintiffs/Respondents were declaratory in nature, and that there was no relief directly seeking N102,500,000.00 as general or special damages. The judgment at page 66 of the Record merely declared that
“Each Plaintiff is therefore entitled to his claims as in Exhibits A to A8, the total claim which is also contained in Exhibits A to A8.” It is trite that a party gets from the court only what he has claimed and proved. The trial court has not, in the judgment, given to the plaintiffs more than they had claimed in their suit. Since the Plaintiffs did not claim any special damages in their suit, it is therefore not correct on the part of the Appellant, as the 1st Defendant, to insist here before us that they must prove the relief for N102,500,000.00, as special damages which they did not claim in their suit.
Assuming the claim of the Plaintiffs was for N102,500,000.00 as special damages, the production of Exhibits ‘A-A8’ is fatal to the defence. The defence did not join, or properly join, issues on Exhibits ‘A – A8’. They were pleaded and produced against their makers. They operate as admission against interest against the defence. In the peculiar circumstance of this case they operate as estoppel under sections 26 and 151 of the Evidence Act that provide:
26. Admissions are not conclusive proof of the matters, but they may operate as estoppels under the provisions of part VIII of this Act.
151. When one person has, by his declaration, act or omission, intentionally cause caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that things.
The suit of the plaintiffs, anchored on Exhibits ‘A – A8, is all about this class of estoppel. The 2nd and 3rd Defendants as agents or representatives in interest of the 1st Defendant, are the makers of Exhibits ‘A-A8′.At the instance of the 1st Defendant the 2nd and 3rd Defendants assessed all properties affected by the 1st Defendant’s Gas Gathering project for payment of compensation’ The plaintiffs/Respondents accepted the assessment. However, the 1st Defendant paid others in the same community and situation and refused to pay the plaintiffs/Respondents. The suit was contrived to hold the Defendants to their declarations in Exhibits ‘A – A8’. From the established facts the Defendants, particularly the Appellant, are estopped from denying that the plaintiffs/Respondents are entitled to be paid compensation as assessed in Exhibits ‘A – A8’. For the operation of this class of estoppel, the beneficial party must not only rely on the said admission, he must have acted upon it to his prejudice, or he has altered his position. See OJIGBE v. OKWARANYIA (1962) ANLR 598 at 603 [1962] 2 SCNLR 358 at 362 FJ, EHIDIMHEN v. MUSA (2000) 8 NWLR [pt.669] 540 at 556 BD; NSIRIM V. NSIRIM (2002) 3 NWLR [pt.755] 697 at 714H – 717E.
There is no substance in this appeal and it is hereby dismissed. The decision of the Rivers State High Court in suit no PHC/1919/99 is hereby affirmed. Costs assessed at N50,000.00 are hereby awarded to the Plaintiffs/Respondents against the Appellant.
HON. JUSTICE M. DATTIJO MUHAMMAD (OFR) J.C.A.: I had a preview of the lead judgment of my learned brother EKO JCA. I cannot improve on it. I adopt it as mine in dismissing the appeal: I also abide by all the consequential orders contained therein including those on costs.
ISTIFANUS THOMAS, J.C.A.: I read in draft the judgment just delivered by my learned brother, EJEMBI EKO, JCA, I agree entirely with the analyses and conclusions on all the issues in the appeal. I have nothing further to add thereto. I also agree that the appeal deserves to be dismissed. I hereby dismiss the appeal and abide by all the consequential orders made by my learned brother in the lead judgment.
Appearances
M. A. Essien, SAN with R.I. Omofurna and O. U. UlasiFor Appellant
AND
Dr. A. Amuda-KannikeFor Respondent
