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WOME v. NIGER DELTA PETROLEUM RESOURCES LTD (2022)

WOME v. NIGER DELTA PETROLEUM RESOURCES LTD

(2022)LCN/16619(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Monday, May 16, 2022

CA/PH/403/2016

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

MR. GOODNESS HARRISON WOME (For Himself And On Behalf Of Chief Wome House Of Odual Family In Otari Community In Abua) APPELANT(S)

And

NIGER DELTA PETROLEUM RESOURCES LIMITED RESPONDENT(S)

 

RATIO

WHETEHR OR NOT DECLARATORY RELIEFS MUST BE PROVED

​Therefore, on the basis of the settled position of the law, the first relief sought by the Appellant, being a declaratory relief, I need to state it clearly at this point that since the foundational relief sought by the Appellant in this case is a declaratory relief, the law places a legal and evidential burden on him to establish his claim by preponderance of evidence on the balance of probabilities, and the other reliefs sought are invariably predicated on the success of the main declaratory relief. Put simply, the Appellant must establish that he is entitled to the declaratory relief sought before there can be a consideration of the question as to whether he is entitled to the monetary reliefs for damages as sought in the Appellant’s amended statement of claim. I must say that it really needs no further emphasis that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted as a matter of course or even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. It is an elementary but fundamental requirement even as an equitable remedy that is discretionary, of a declaratory relief for a plaintiff to satisfy the Court that he is entitled in law to the relief claimed. In the recent decision in the case of ADAMU Vs. NIGERIAN AIRFORCE & ANOR (2022) LPELR-56587(SC), the Apex Court, per MARY UKAEGO PETER-ODILI, JSC (now retired), was unequivocal when his lordship clearly held as follows:
“It is my humble view that the burden of proof on the Appellant in establishing declaratory reliefs are not granted even on the admission by the defendants (Respondents herein).
PER KOLAWOLE, J.C.A.

THE POSITION OF LAW ON WHEN DECLARATORY RELIEFS ARE GRANTED

As earlier remarked, declaratory reliefs are granted only when the Court is satisfied and convinced by the strength of the evidence adduced by the Plaintiff and the Court is of the opinion that the party seeking the relief is fully entitled to be so granted. The settled position of the law is that such reliefs are not granted on the admission or implied admission of a Defendant. See the decision in C.P.C. Vs. INEC (2012) 1 NWLR (Pt. 1280) 106 at 131 where the Supreme Court held:
“The Court does not make declarations of right either on admission as in default of defence without having evidence and being satisfied by such evidence to the plaintiff’s entitlement to such a right. The requirement of oral evidence arises from the fact that the Court has discretion to grant or refuse a declaratory relief and its success depends entirely on the strength of the plaintiff’s own case and not on the defence….”
See also the extant decisions in TUKURU & ORS Vs. SABI & ORS (2013) LPELR 20176 SC; ADEPETUN Vs. FASIMOYE & ANOR (2022) LPELR–56632(CA). Therefore, the argument canvassed by the Appellant’s counsel that the declaratory relief sought by the Appellant ought to be granted on the basis of the Respondent’s admission is grossly misconceived and misplaced. A plaintiff who sought for such relief must prove and succeed on the strength of his own case and would not rely on the weakness of the defence of his opponent.
PER KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): On 19th April, 2016, the Federal High Court, sitting in the Port Harcourt Judicial Division, coram Honourable Justice U.N. Agomoh (the “trial Court”) delivered a considered judgment in Suit No. FHC/PH/CS/500/2008 dismissing the Appellant’s suit. The Appellant as Plaintiff had initiated the suit vide an Amended Statement of Claim dated and filed on 15th March, 2012, seeking the following reliefs:
(a) “A declaration that the Plaintiff is a different entity from the Odual Family of OtarirAbua and so entitled to compensations different from that of the Odual family from the Defendant.
(b) The sum of N319,735,787.50 (Three Hundred and Nineteen Million, Seven Hundred and Thirty-Five Thousand, Seven Hundred and Eighty-Seven Naira, Fifty Kobo) as special damages for harm intentionally inflicted on the Plaintiff’s landed properties as per the valuation report pleaded.
(c) The sum of N50,000,000.00 (Fifty Million Naira) as general damages.
(d) The sum of N50,000,000.00 (Fifty Million Naira) as aggravated damages.”

​Dissatisfied with the decision of the trial Court dismissing his claims, the Appellant filed an amended notice of appeal dated October 14th, 2019 containing thirteen (13) grounds of appeal. The Appellant filed an amended brief of argument and a reply brief of argument, while the Respondent filed its brief of argument in response. In the Appellant’s brief of argument dated 14th October, 2019 settled by Ekitoni J. Amiofori, Esq., two (2) issues were formulated for determination of the appeal and they read thus:
1. Whether on the facts and circumstances of this case, the lower Court was right when it failed or refused to hold that by its pleadings and during trial, the Respondent admitted the claims of the Appellant?
2. Whether on the balance of probabilities, the Appellant proved its case at the trial and thus was entitled to the reliefs sought in the amended statement of claim?”

On the other hand, Tonye Krukrubo, Esq., leading other Counsel, prepared the Respondent’s brief of argument dated 31st October, 2017 wherein a sole issue was distilled for the determination of the appeal thus:
“Whether from the pleadings and evidence led at the trial Court, the Appellant, on the balance of probabilities, has proved his case to be entitled to the reliefs sought?

The Appellant’s case in summary is that the Original Plaintiff in the suit – Mr. Emmanuel Wome Harry (substituted with the Appellant by order of Court) as the head of the Wome House of Odual Family of Otari Community in Abua/Odual Local Government Area of Rivers State, inherited farmland known as Okpara Emma-Wome and planted economic trees on the said farmland. Several fishponds were also dug on the farmland. Sometime in 2005, while the crops and farms were in good shape, the Respondent intentionally pumped crude oil and other noxious chemicals from its well to the Appellant’s farms and polluted the whole farmland, resulting in the death of the crops and fishes in the ponds. Due to the Respondent’s refusal to pay compensation to the Appellant for the alleged pollution of his farmland, the Appellant commenced the action leading to the present appeal.

​I have earlier reproduced the issues formulated by the parties in connection with this appeal, and upon a careful consideration of the case put forward by the respective parties; the complaints enumerated in the grounds of appeal contained in the amended notice of appeal; the judgment of the trial Court; as well as the arguments canvassed by counsel on behalf of the respective parties, I am of the opinion that the present appeal can be determined on the basis of the sole issue formulated by the Respondent. The said sole issue addresses the Appellant’s complaint and can also accommodate the arguments canvassed by the parties in the appeal. I shall therefore adopt same in the resolution of the instant appeal.

Appellant’s submissions
The summation of the somewhat repetitive submissions made by the Appellant’s counsel in the brief of argument is to the effect that the Respondent admitted the relevant averments and claims contained in the Appellant’s pleading. He cited the provision in Section 123 of the Evidence Act, 2011 and decision in the case of NIRCHANDANI Vs. PINHEIRO [2001] FWLR (Pt. 48) 1307 at 1322, paras E–F and 1323, para B. It is the submission of counsel that the Respondent admitted that (a) the Appellant had properties on the Odual family land in Otarir Community; (b) the Respondent’s oil facility is located on the same family land; (c) the Respondent spilled crude oil and noxious chemicals from its facility into the land where the Appellant had his farm; (d) the Appellant’s crops were negatively affected by the spill; (e) the Respondent acknowledged the spill and duly conducted a valuation/assessment of the items affected by the spill. The Appellant’s learned counsel argued that the Appellant is therefore entitled to special damages in the sum claimed. The decisions in the cases of OKOYA Vs. SANTILLI (1994) 4 NWLR (Pt. 338) 256 at 316; BUNGE Vs. GOVERNOR OF RIVERS STATE (2006) ALL FWLR (Pt. 325) 1 at 24–26, paras E–A; HARUNA Vs. ISAH (2016) ALL FWLR (Pt. 818) 918 at 960, paras F–G; OFORLETTE Vs. STATE (2000) FWLR (Pt. 12) 2081; CHEMICAL AND ALLIED PRODUCTS PLC Vs. VITAL INVESTMENT LIMITED (2006) ALL FWLR (Pt. 342) 1502; C.D.B. PLC Vs. EKANEM (2010) ALL FWLR (Pt. 511) 833 at 846, para A were cited and relied upon by the Appellant’s counsel in support of his submission and further argued that the Respondent did not cross-examine the Appellant’s witness on the documents tendered in support of the Appellant’s case and admitted as Exhibits A–G. The decision NDULUE Vs. OJIAKOR (2013) ALL FWLR (Pt. 673) 1804 at 1824, paras B–D was also relied upon by the Appellant’s counsel in support of the argument canvassed.

Appellant’s counsel further submitted that the Respondent’s witnesses – DW1 and DW2 gave evidence-in-chief on the valuation/assessment report pleaded and frontloaded by both the Appellant and the Respondent, which shows that the alleged spill affected the Appellant’s land. Counsel submitted that even though the Respondent had frontloaded the said document, it refused to tender same, thereby overreaching the Appellant. The case of NIWA Vs. SPDC NIGERIA LIMITED (2008) ALL FWLR (Pt. 433) 1402 at 1408, paras F–G was cited in support of the Appellant’s submission. The Appellant’s counsel further contended that the learned trial Judge erred when he held that he cannot consider and utilize the document not tendered by the Respondent, as the said decision is not in conformity with the laws. Appellant’s counsel submitted that by the provision in Section 122(4) of the Evidence Act, 2011, the Court is empowered to take judicial notice of its file whether tendered as exhibit or not. He further cited the decisions in the cases of UZODINMA Vs. IZUNASO (NO. 2) (2011) 17 NWLR (Pt. 1275) 30 at 75, paras F–H; ATTORNEY GENERAL OF ANAMBRA STATE Vs. OKEKE (2002) FWLR (Pt. 112) 175 at 196–197, paras E–C; OKAFOR Vs. OKAFOR (2002) FWLR (Pt. 120) 1712 at 1730, paras E–G; OSAFILE Vs. ODI (No. 1) (1990) 3 NWLR (Pt. 137) 130 at 158, paras G–H. The learned Appellant’s counsel finally submitted on the first issue formulated that the Respondent’s refusal to tender its own valuation report is tantamount to withholding evidence and the law enjoins the Court in such circumstances to reach an adverse decision against the Respondent, citing the provision in Section 167(d) of the Evidence Act, 2011; the decisions in the cases of ONWUJUBA Vs. OBIENU (1991) 4 NWLR (Pt. 183) 16 SC; and NSC (NIG.) LIMITED Vs. INNIS-PALMER (1992) 1 NWLR (Pt. 218) 422 were cited and relied upon.

​On the second issue, Appellant’s counsel submitted that when an oil spill occurs, as in this case, the landowners who may either be the whole community or family and respective individuals whose personal crops were affected by the said spill, are paid compensation. He noted that in 2004, the Appellant was paid compensation for his personal crops affected by the Respondent’s activities and relied on the decisions in the cases of SPDC (NIG) LIMITED Vs. EDAMKUE (2009) ALL FWLR (Pt. 489) 407 at 429; LADEJOBA Vs. OGUNTAYO (2004) ALL FWLR (Pt. 231) 1209 at 1228 in support of his submission before arguing that to the extent that the Appellant has the right to claim compensation for his personal crops and farms from the Respondent, which is different from that of the Odual Family as the land owner, the Appellant had the legal entity apart from the other members of the Odual Family as a whole and can therefore maintain this action, citing the cases of IBRAHIM E. IPADEOLA Vs. ABIODUN OSHOWOLE (1987) 3 NWLR (Pt. 59) 18, para B; NATIONAL OIL & CHEMICAL MARKETING PLC Vs. ADEWUSI (2009) ALL FWLR (Pt. 455) 1669. It is also the submission of Counsel, that the Wome House is one of the constituent units in the Odual Family with a different entity and this was proved by the evidence contained in the PW2’s witness statement on oath at page 201 of the record of appeal. He noted that the Respondent’s counsel did not cross-examine the Appellant on this piece of evidence. Counsel relied on the decision in the case of IDESOH Vs. ORDIA (1997) 2 SCNJ 175 at 184 to contend and argue that the learned trial Judge erred when he demanded the Appellant to prove that it was different from his family. He argued that Exhibit 1, the valuation report was not for the Odual family land at Otarir Community in Abua, Rivers State but same was made in connection with the Appellant’s personal crops on the Odual family land. He relied on the decisions in WALTER Vs. SKYLL (NIG) LIMITED (2000) FWLR (Pt. 13) 2244 at 2267–2268; TITILOYE Vs. OLUP (1991) 7 NWLR (Pt. 205) 519 at 532, paras F–G; 543, para D; UGOCHUKWU Vs. CO-OPERATIVE & COMMERCE BANK LIMITED (1996) 6 NWLR (Pt. 456) 524 at 537.

It is the Appellant’s argument that the learned trial Judge erred in law when he countenanced the contents of Exhibit 6 to the effect that the Rivers State Ministry of Environment had informed the Appellant that his personal claim was unfounded and that the alleged spill had only impacted the Odual Family House. Counsel submitted that the evidence on record shows that individual members of the family own personal crops on the family land which was impacted by the Respondent’s activities and the Appellant is therefore entitled to the sum claimed. Counsel further submitted that the suggestion made by the Rivers State Ministry of Environment, which is not a judicial body, in Exhibit 6 was resisted by the Appellant and same is not binding on the Court. He relied on the decision in the case of JAMES Vs. NIG. AIR FORCE (2000) 13 NWLR (Pt. 684) 406. The learned Appellant’s counsel also argued that the trial Court’s finding on Exhibit 6 was based on an incomplete consideration of the said exhibit; and that the issue relating to whether the Appellant’s personal claim was unfounded and lacking in merit is a fact which should have been pleaded and evidence led to prove same, citing the decision in ISHOLA Vs. ISHOLA (2015) ALL FWLR (Pt. 779) 1117 at 1136, para E. It is the further submission of counsel that, contrary to the decision of the trial Court, there was evidence that the Wome House to which the Appellant belongs, was impacted by the spill.

The learned Appellant’s counsel submitted that the lower Court erroneously relied on Exhibit 3, which was not pleaded to conclude that the spill impacted only the Odual family land and did not affect the Appellant and cited the decision in ZENON PETROLEUM CO. & GAS Vs. IDRISIYYA LIMITED (2006) 8 NWLR (Pt. 982) 221. Counsel also argued that the decision that there was no crude oil spill was not based on the evidence led at the trial since there is no evidence on record that the Ministry of Environment conducted a test or prepared a report in connection with the alleged spill.

On the other hand, PW1 and PW3 gave evidence as expert witnesses and were cross-examined; therefore, there was no basis for the learned trial Judge to reject the evidence led through the said witnesses. The Appellant’s counsel also noted that the issue at stake before the trial Court is not about the substance that was allegedly spilled but whether what was spilled caused harm to the Appellant, citing the case of  NATIONAL OIL & CHEMICAL MARKETING PLC Vs. ADEWUSI (2009) ALL FWLR (Pt. 544) 1669. The Appellant’s counsel stressed that it was established by evidence that there was pollution of the immediate environment around the Respondent’s facility, but the lower Court failed to properly evaluate the evidence before it, relying on the decision in SIMON YARDI & 2 ORS Vs. ALHAJI ARDO SAIBARU & ORS (2000) FWLR (Pt. 18) 357 at 379, paras D–G, before urging this Court to allow the appeal, and set aside the judgment of the trial Court and grant the reliefs sought by the Appellant.

Respondent’s Submissions
On the part of the Respondent, learned Respondent’s counsel remarked that the Appellant’s counsel had proceeded on the wrong footing when he argued on the basis that the Appellant’s suit is a personal action against the Respondent; whereas the suit as constituted is a representative action and not a personal suit. The Respondent’s counsel submitted that before the Appellant can succeed in his first relief, he must prove that Chief Wome House exists and same is/was distinct from the Odual Family, and cited the provision in Section 134 of the  Evidence Act; and the decision in AYADI & ORS Vs. MOBIL PRODUCING (NIG.) UNLIMITED (2016) LPELR–41599 (CA). The Respondent’s learned counsel contended that the Respondent joined issues with the Appellant’s claim that there is a family or house known as Wome House in Odual Family in Otari Community. He argued that the Respondent’s averment was not controverted by the Appellant as he did not file any reply to the Respondent’s amended statement of defence filed on 9th January, 2014; hence he is deemed to have admitted such facts which he submitted, require no further proof and relied on Section 132 of the Evidence Act, 2011 and the decisions in A.G ABIA STATE Vs A.G FEDERATION (2005) 12 NWLR (Pt. 940) 452; ANSA Vs. NTUK (2009) 9 NWLR (Pt. 1147) 557 at 590, paras C–D; OGBIRI Vs. NAOC LIMITED (2010) 14 NWLR (Pt. 1213) 208 at 222. The Respondent’s counsel further submitted that the evidence of DW1 on this issue was not challenged by the Appellant and even PW2, the original Plaintiff also agreed with the Respondent that there is no Wome House in the Odual Family. It is the submission of the Respondent’s counsel that, contrary to the Appellant’s submission, even if it is conceded that there was an admission on the part of the Respondent, the first relief sought by the Appellant, being a declaratory relief cannot be granted on the basis of a mere admission or in default of defence and cited the decision in MAJA Vs. SAMOURIS (2002) 7 NWLR (Pt. 765) 78 at 100–101, paras H–C. Counsel noted that the evidence on record including Exhibits 1 and 4 did not show that Wome House was a unit in Odual Family.

The learned Counsel for the Respondent noted that the representative nature of the suit demands that the Appellant must establish the existence of Chief Wome House as distinct from Odual Family and relied on the decision in MTN NIGERIA COMMUNICATION LIMITED Vs. EMEGANO (2016) LPELR–41090 (CA), so that in the event of a favourable judgment, the sum awarded by the Court will go to the persons so represented. Similarly, the Appellant is required to establish that he is different from the Odual Family in the sense that his interest and that of the family are not the same and relied on the decision in OKULATE Vs. AWOSANYA (2000) FWLR (Pt. 25) 1666 at 1679. Counsel submitted that since the first relief is the foundation upon which other reliefs sought by the Appellant stands, failure of the Appellant to establish that it is a distinct entity automatically means that the whole claim was bound to fail.

​Arguing further on this issue, the learned counsel stated that the Appellant failed to prove his claim that the Respondent intentionally discharged crude oil and other noxious chemicals from its facility into the Appellant’s farms. Counsel remarked that Exhibit C shows that the Rivers State Ministry of Environment intervened in the matter and one of its Directors, Mr. I. O. Saloka, participated in a joint inspection of the impacted area, upon which a finding was made that no crude oil was spilled from the Respondent’s facility. Counsel maintained that in the absence of a reply from the Appellant, the Court is entitled to hold that the Appellant is deemed to have admitted the Respondent’s averment that there was no crude oil spill. He further relied on Exhibit 6 and the evidence of DW1 in support of this fact before submitting that there was material conflict in the evidence of the Appellant’s witnesses, in particular PW1 and PW3 on their alleged visit to the area impacted by the alleged crude oil spill and the composition of their teams; therefore, the Court ought to disregard their evidence and relied on the decision in the case of UNILORIN Vs. ADESINA (2010) 9 NWLR (Pt. 1199) 331 at 351. Counsel submitted that the only inference from the evidence of PW1 and PW2 is that none of them went for any inspection as claimed in their reports and as such misled the trial Court by stating that there was a crude oil spillage from the Respondent’s facility. Respondent’s learned counsel stressed that it is curious that as at the date PW3 allegedly went for inspection on 17th November, 2005, PW1’s Valuation Report – Exhibit 1, was already in existence for about 18 days as same is dated 30th October, 2005, even though the norm is that the valuer depends on the report of the environmentalist to determine the effect of the spill on the environment and the expected period of recovery of the environment.

​On the Appellant’s entitlement to damages on the basis of the contents of the valuation report – Exhibit 1, the learned Respondent’s counsel submitted that since the Appellant did not file a reply to the Respondent’s statement of defence, he is deemed to have admitted that averments contained therein, to wit; (a) the Appellant presented a personal claim which was found to be lacking in merit after the joint inspection by officials of the Ministry of Environment; (b) in anticipation of the joint inspection visit, the Appellant had rushed to plant bitter leaf stems on the land for the sole purpose of claiming compensation from the Respondent; (c) the Odual Family informed the Appellant during the inspection that affected area was owned by the family and it was therefore a family affair; (d) the Respondent duly paid compensation to the Odual Family; (e) trees are not owned by individuals under Abua native law and custom; (f) the Respondent carried out remediation of the affected areas. It is also the submission of counsel that the Appellant did not prove that he and the Chief Wome House suffered damages as a result of the Respondent’s activities and such damages are different from what was suffered by the Odual family, which entitled him to be compensated. The Respondent’s counsel noted the PW1 and PW3’s evidence did not offer credible proof in support of the Appellant’s claim for damages and that Exhibit 1 reveals that the Odual Family is the one entitled to claim compensation and not the Appellant. Counsel argued that Exhibit 1 dated 30th October, 2005 was concocted by PW1 to meet the circumstances of the case and the total value of loss claimable therein (circa Three Hundred and Nineteen Million Naira) contradicts the sum demanded by the Appellant from the Respondent (Fifty Million Naira) in Exhibit C dated 15th December, 2005.

​Counsel stressed that throughout the proceedings at the trial Court, the Appellant did not dispute the contents of Exhibit 6 wherein it was stated that the Appellant’s case lacks merit and as such was advised to join with his Odual Family Kinsmen. He also referred to the evidence elicited from DW1 to the effect that the Appellant was unable to show the joint inspection team with regard to his farmland in the area affected by the chemical spill and also that the compensation paid to the Odual family was shared among the eight sub-houses of the family including the Igila sub-house, to which the Appellant belongs. It is the submission of counsel that reliance on Exhibit 1 as the basis of compensation in awarding damages including general or aggravated damages in favour of the Appellant will amount to double compensation, and the law abhors double compensation, citing the cases of KOPEK CONSTRUCTION LIMITED Vs. EKISOLA (2010) 3 NWLR (Pt. 1182) 618 at 661; OZIGBU ENG. CO. LIMITED Vs. IWUAMADI (2009) 16 NWLR (Pt. 1166) 44 at 62. The Respondent’s counsel noted that the Respondent pleaded and led evidence to show that it had since carried out a remediation of the environment; therefore, aggravated damages does not arise. The Court was urged to dismiss the appeal and affirm the Judgment of the trial Court.

Appellant’s Reply Submissions
In the reply brief, Appellant’s counsel argued that the trial Court did not discountenance or strike out Mr. Wome Harry – PW2’s statement on oath but what was discountenanced was the Appellant’s reply to the Respondent’s statement of defence. He argued that Mr. Wome Harry’s statement on oath was admitted as evidence during the trial and countenanced by the trial Court. Counsel submitted that in a case where a defendant did not file a counterclaim, the law permits the Appellant to lead evidence on the pleadings of the defendant without first filing a reply to the defendant’s statement of defence, citing the decision in the case of MKPA Vs. MKPA (2010) 14 NWLR (Pt. 1214) 612.

It is the further submission of the Appellant’s counsel that the other reliefs sought by the Appellant are not dependent on the first relief. He also argued that the fact that no crude oil was detected on the affected area was not specifically pleaded by the Respondent, and only the Ministry of Environment can therefore lead evidence that it did not detect any petroleum substance on the affected areas and tender Exhibit, citing the decision in NYESOM Vs. PETERSIDE (2016) ALL FWLR (Pt. 842) 1573 at 1637 para E. Appellant’s counsel canvassed other arguments in reply which shall be considered in this judgment as the need may inevitably arise.

RESOLUTION
There is no doubt that the crux of the Appellant’s case before the lower Court is that he (and the Chief Wome House whom he represents) is personally and independently entitled to compensation for damages caused to his farmland by the spillage from the Respondent’s oil facility. To this extent, the Appellant approached the trial Court, asking the Court by his originating process, to declare that the Appellant “is a different entity from the Odual Family of Otarir Abua and so entitled to compensations different from that of Odual family” for the oil intentionally spilled by the Respondent from its facility.

​Therefore, on the basis of the settled position of the law, the first relief sought by the Appellant, being a declaratory relief, I need to state it clearly at this point that since the foundational relief sought by the Appellant in this case is a declaratory relief, the law places a legal and evidential burden on him to establish his claim by preponderance of evidence on the balance of probabilities, and the other reliefs sought are invariably predicated on the success of the main declaratory relief. Put simply, the Appellant must establish that he is entitled to the declaratory relief sought before there can be a consideration of the question as to whether he is entitled to the monetary reliefs for damages as sought in the Appellant’s amended statement of claim. I must say that it really needs no further emphasis that the burden of proof on the plaintiff in establishing declaratory reliefs to the satisfaction of the Court is quite heavy in the sense that such declaratory reliefs are not granted as a matter of course or even on admission by the defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence. It is an elementary but fundamental requirement even as an equitable remedy that is discretionary, of a declaratory relief for a plaintiff to satisfy the Court that he is entitled in law to the relief claimed. In the recent decision in the case of ADAMU Vs. NIGERIAN AIRFORCE & ANOR (2022) LPELR-56587(SC), the Apex Court, per MARY UKAEGO PETER-ODILI, JSC (now retired), was unequivocal when his lordship clearly held as follows:
“It is my humble view that the burden of proof on the Appellant in establishing declaratory reliefs are not granted even on the admission by the defendants (Respondents herein). In this instant appeal, the Appellant failed to discharge this burden on him in the lower Court and it is not difficult to so hold. It needs be brought to the fore that declaratory reliefs are not granted based on the lack of credible evidence by the defence but on the convincing, satisfactory and credible evidence by the claimant. Assuming that the Respondents’ evidence were not satisfactory enough, that is not a pointer that the declarative reliefs should be granted.”
See further the decisions in AKANINWO & ORS v. NSIRIM & ORS (2008) LPELR – 321(SC); IFEDIORA & ORS Vs. OKAFOR & ORS (2019) LPELR-49518(SC); MOHAMMED Vs. WAMMAKO & ORS (2017) LPELR-42667(SC).

The Appellant, in proof of his entitlement to the reliefs sought, called three (3) witnesses and tendered 9 documents which were admitted as Exhibits A–G1; and 1–2. Notably, the learned trial Judge expressed the view and reached the conclusion that based on the evidence before him, the Appellant did not establish his entitlement to the declaratory reliefs sought. Meanwhile, the predominant argument repeatedly and strenuously canvassed by the Appellant in the brief of argument is essentially predicated on the fact that the Respondent did not deny the Appellant’s pleadings that the Appellant has farms and other landed properties near the Respondent’s oil well; that the spill alleged by the Appellant occurred in 2005; that the Appellant’s crops were destroyed by the Respondent’s activities; that the Respondent acknowledged the spill and duly conducted a valuation/assessment of the items affected by the spill. On this basis, the Appellant argued that the admission made by the Respondent should be resolved in the favour of the Appellant.

As earlier remarked, declaratory reliefs are granted only when the Court is satisfied and convinced by the strength of the evidence adduced by the Plaintiff and the Court is of the opinion that the party seeking the relief is fully entitled to be so granted. The settled position of the law is that such reliefs are not granted on the admission or implied admission of a Defendant. See the decision in C.P.C. Vs. INEC (2012) 1 NWLR (Pt. 1280) 106 at 131 where the Supreme Court held:
“The Court does not make declarations of right either on admission as in default of defence without having evidence and being satisfied by such evidence to the plaintiff’s entitlement to such a right. The requirement of oral evidence arises from the fact that the Court has discretion to grant or refuse a declaratory relief and its success depends entirely on the strength of the plaintiff’s own case and not on the defence….”
See also the extant decisions in TUKURU & ORS Vs. SABI & ORS (2013) LPELR 20176 SC; ADEPETUN Vs. FASIMOYE & ANOR (2022) LPELR–56632(CA). Therefore, the argument canvassed by the Appellant’s counsel that the declaratory relief sought by the Appellant ought to be granted on the basis of the Respondent’s admission is grossly misconceived and misplaced. A plaintiff who sought for such relief must prove and succeed on the strength of his own case and would not rely on the weakness of the defence of his opponent.

​It is worthy of note that parties are ad idem that the entire farmland which was allegedly affected by the spill from the Respondent’s facility belongs to the Odual Family. However, the crux of the Appellant’s case is that himself and the Chief Wome House, to which he belongs are also entitled to a separate and distinct compensation, since they had personal crops on the said farmland. By this token, the Appellant has divorced his interest and placed it as being different from that of the Odual Family. Clearly, as the record shows, both parties joined issues on the question as to whether Chief Wome House is a constituent family unit of the Odual Family. Both parties however agreed that the Odual Family is delineated into eight (8) sub-houses namely, Akari-Ikpoki; AkariInoma (Ataghonom); Adigboogh; Gogo Abam; Eze Abam; IyallaNwabali; IyallaNwabali; and Igila. 

The Respondent led evidence to show that the Appellant herein belongs to the Igila family sub-house/unit. On the other hand, the Appellant has argued that he led through Mr. Emmanuel Wome Harry, with regard for the purpose of the proceedings as PW2, that due to the fact that the eight (8) sub-houses have grown very large, they have been further broken down to more divisible units known as “OTO” in Abua language, and it is this OTO that the Appellant regarded as a house in his pleadings. By this token, the Appellant is saying that he belongs to the Chief Wome Oto unit.
In reaching the conclusion that the Appellant did not establish his entitlement to the reliefs sought, the learned trial Judge at pages 811 to 813 of the record of appeal states thus:
“It is my finding that the evidence of PW2 and Exhibits tendered by him, shows clearly that the pollution that alleged impacted on the Odual Family land of OtariAbua. See Exhibit B. Also, by Exhibit C, the plaintiff admits that the pollution impacted the Odual family in Otarir Community. There is no evidence before the Court by the Plaintiff that he is a different entity from the Odual family of OtarirAbua. On the contrary, the oral and documentary evidence clearly shows that the plaintiff is part and parcel of the Odual family of Otarir Community. Exhibit 1 the Valuer’s Report is for the Odual family land at Otarir Community in Abua, Rivers State. Also, Exhibit 2 i.e. the Scientific Report. The contention of the plaintiff that the Wome House is a different entity was not proved….
The plaintiff has not shown that it has any legal entity outside that of being a member of the Odual family in this case.
It is to be noted as I have earlier found that from all the garmount (sic) of evidence in this case, the dispute has been between the Odual family land that was impacted and the defendant. Even the Exhibit tendered by the plaintiff is to the effect that the Rivers State Ministry of Environment told the plaintiff in clear language when he raised the issue of personal claims that same was unfounded and lacking in merit. Exhibit 6.
It is my finding from the totality of the evidence adduced that it has not been proved that the Wome House was impacted by the spill. All the Exhibits tendered and the evidence of the witnesses were centered on the impact on the Odual family House. See Exhibits A – G, 1 and 3….”

My noble Lords and brothers, I am clearly in agreement with the findings and conclusion reached by the learned trial Judge to the effect that the Appellant did not present any credible evidence to establish that Chief Wome House is a distinct family unit of Odual family or that the Appellant’s interest and that of Chief Wome House, which he belongs, is distinct and different from the interest of Odual family. The only probable inference that can be drawn from a proper evaluation of the evidence on record is that the farmland impacted by the spill arising from the Respondent’s activity belongs to the Odual Family. Quite frankly, I am at a loss as to how the Appellant who has pleaded and led evidence to say that the entire land impacted belongs to the Odual Family and that the Chief Wome House is a family unit under the said Odual Family, can then come before the Court to seek a relief for a declaration that he is a different entity from the family which he has asserted that he belongs to. A fortiori, there is nothing on record to establish that the area for which the Appellant lays his claim distinctly belongs to him or to those he claims to represent. Meanwhile, it is clear on the face of Exhibit 6, the minutes of the meeting held on 13th July 2006, under the auspices of the Honourable Commissioner of the Rivers State Ministry of Environment, who midwifed the amicable settlement of the underlying dispute arising from the alleged pollution by the Respondent, that the original Plaintiff, PW2 attended the meeting as a constituent member of the Odual Family and not that of the Chief Wome House. See also PW2’s evidence at page 317 of the record of appeal, where he admitted that he is a member of the Igila family. In the same vein, Exhibits 1 and 2, the valuation and scientific report relied upon by the Appellant in support of his case, also support the inference that the land impacted belongs whole to the Odual Family. This Court cannot give in to the submission by the Appellant that the learned trial Judge did not properly evaluate the evidence before it in reaching his decision. There is nothing on record to show as the Appellant want the Court to believe, that the Appellant is from a different entity from the Odual Family.

​It must be emphasized and for the avoidance of doubt that this Court will not readily or lightly interfere with the findings and conclusions of a lower Court, which were reached, upon what can be accepted by the Appellate Court as a dispassionate appraisal of the pleadings as well the evidence elicited by the parties before the lower Court. Ipso facto, and perhaps on the contrary, the interference by this Court with regard to such findings is only warranted or legitimate where it is found that the findings are not only perverse, but also where the conclusions were reached because of an incorrect application of the applicable law(s) and adjectival principles. See the decisions in RABIU Vs. ADEBAJO (2012) LPELR–9709 (SC); OKOYE & ANOR Vs. OBIASO & ORS [2010] 8 NWLR (Pt. 1195) 145 SC; IFETA Vs. SPDC NIG LTD [2006] 8 NWLR (Pt. 983) 585. Owing to the state of the evidence before the trial Court, I am unable to subscribe to the Appellant’s strident contention that the learned trial Judge erred when he held that the Appellant did not establish his entitlement to the relief sought. Regrettably, I share the same views with those expressed by the learned trial Judge and I must be quick to add that the evidence adduced by the Appellant is grossly insufficient to sustain the claim before the Court.

​Before drawing down the curtain on this appeal, I must say that there is positive evidence, particularly Exhibit 5, which shows that the Respondent has paid the necessary compensation to the rightful persons (family) – the Odual Family, whose farmlands were impacted by the Respondent’s activity. The Appellant who has failed to establish his distinct interest, cannot and ought not be allowed to cry more than the bereaved because, he appears more like a “gold digger” scooping for what he did not lose! As a matter of fact, the Respondent, led evidence through DW1 that the compensation paid to the family was shared amongst the eight (8) sub-houses in the Odual Family, the Igila family, to which the Appellant belongs also partook in the sharing. Having failed to establish his entitlement to the declaratory relief sought as the principal claims, the monetary claims, which rests on the said declaratory relief is bound to fail, as rightly held by the learned trial Judge. In the end, I am at one with the learned trial Judge that the Appellant’s case ought to be dismissed, and I agree with the Respondent’s Counsel that the present appeal is devoid of merit. The sole issue adopted is therefore resolved against the Appellant.

​In the circumstance, I hold that this appeal is grossly unmeritorious, and it is accordingly dismissed. The decision of the Federal High Court, coram Honourable Justice U. N. Agomoh delivered on 19th April, 2016 is hereby affirmed. Costs of N100,000.00 is awarded against the Appellant in favour of the Respondent.

TANI YUSUF HASSAN, J.C.A.: I have read in draft, the lead judgment of my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA just delivered. I agree with the conclusion that the appeal lacks merit. I dismiss same and affirm the judgment of the trial Court. I abide by the order as to costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA.
I am in agreement with the reasoning and conclusion in the lead judgment with nothing useful to add thereto.

I too resolve the issues considered in this appeal in favour of the Respondent as done by my learned brother in the lead judgment. The appeal fails and dismissed by me. The judgment of the lower Court in Suit No. FHC/PH/CS/500/2008 is hereby affirmed.

I abide by the consequential orders in the lead judgment including order as to costs.

Appearances:

MRS. M. A. ONUJIDE. For Appellant(s)

T. J. KRUKRUBO, ESQ. with him, S. O. OKITI, ESQ. For Respondent(s)