Chief (Dr) R.N.A. Ubani-ukoma & Ors V. Seven-up Bottling Company Plc & Anor (2009)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
This is an appeal against the judgment of I.F. OGBUAGU (J) (as he then was) of the High Court of Abia State sitting at Aba delivered on 1/11/2000 in Suit No. A/169/88. The plaintiffs (hereinafter “the Appellants”) had claimed in a land suit against the Defendants (hereinafter “the Respondents”) in their amended statement of claim, found at pages 100-101 of the Records, the following declaratory reliefs and damages:
“(a) Declaration that the 1st set of plaintiffs are the proper persons entitled to apply for and receive STATUTORY RIGHT OF OCCUPANCY of the piece or parcel of land known as and called “OVORO EGBELU” situate at UMUOLA village in Abayi Community Obingwa Local Government Area within the jurisdiction of this Honourable Court.
(b) A declaration that the 4th plaintiff is by Ngwa Native Law and custom one of the descendants of “OLA” the original owner of OVORO EGBELU land situate at Umuola village in Abayi community of Obingwa Local Government Area.
(c) N100,000.00 (one hundred Thousand Naira) being general and special damages in that on or about the month of December, 1987 and on diverse days before and thereafter the Defendants by themselves, their agents, and/or workers broken and entered into that piece or parcel of land brushed same, uprooted all the economic trees thereon, lid (sic) foundation for warehouse without the consent of the 1st set of plaintiffs who have been in peaceful possession of the said parcel of “OVORO EGBELU” land for many years.
i. Cost of labour to brush land N140.00
ii. 200 matured oil palm trees at N1,000.00
iii. 800 ububa, otiri, and Ahaba trees uprooted by the Defendants at 50k each – N400.00
SPECIAL DAMAGES – N1, 540.00
GENERAL DAMAGES – N98,460.00
TOTAL – N100,000.00
(d) Perpetual injunction restraining the Defendants their agents, workers and/or servants from committing further acts or trespass on the said “Ovoro Egbelu” land property of the 1st set of plaintiffs”.
The 1st Respondent a limited liability company has claimed that it was on the disputed land by the authority of the Government of old Imo State of Nigeria. It applied to the trial court for the joinder of the 2nd Respondent as a party to the proceedings and he was so joined. The Respondents raised defence of compulsory acquisition of the land in dispute by the Government of Imo State.
After a full hearing, the learned trial judge in his judgment concluded at page 224 of the Record as follows:
“This action fails in its entirety as it is extremely unmeritorious. It lacks substance and it is hereby and accordingly dismissed.”
Dissatisfied with this decision, the Appellants, promptly filed an appeal to this court. The EIGHT grounds of appeal without their particulars are set out as follows:
“1. ERROR IN LAW.
The learned Trial Judge erred in law in not distinguishing in his judgment between the meaning and effects of sections 5 and 8 of the Public Lands Acquisition Law Cap. 105 of the Laws of Nigeria 1963 applicable to Abia State.
2. ERROR IN LAW
The learned Trial Judge en-ed in law in not adverting his mind to the consequences of an acquiring authority failing to comply with the mandatory provisions of section 5 (supra).
3. ERROR IN LAW
That the learned Trial Judge erred in law his construction section 8 (supra)
4. ERROR IN LAW
The learned Trial Judge erred in law in holding that a vesting order from a High Court is not necessary because of the provisions of sections 5 and 8 (supra).
5. ERROR IN LAW.
The learned Trial Judge erred in law in holding that the acquisition of the land in dispute by the Government of Imo State and the grant of a statutory certificate of occupancy in respect thereof to the 1st Respondent was an act done for a public purpose.
6. ERROR IN LAW.
The Learned Trial Judge erred in law in refusing to strike out the 4th Appellant from the suit for mis-joinder.
7. ERROR IN LAW.
The Learned Trial Judge erred in law in failing to evaluate the evidence of the parties or to have done so in most inadequate manner.
8. The Learned Trial Judge erred in law in not assessing damages awarded to the 1st to 3rd Appellants, even if he had made up his mind, in the course of the Judgment, to dismiss the suit.
Initially the Appellants distilled a total of 8 issues from the 8 grounds of appeal. However, on 16/2/2009, when the appeal came up for hearing, learned counsel for the Appellants TAGBO NWOSU Esq. bad indicated, the intention of the appellants to abandon issues 4 and 5 distilled by the Appellants. Hence the Appellants’ issues identified for determination of the appeal remain the following issues 1, 2, 3, 6, 7 and 8 set out hereunder:
ISSUE 1 (ONE)
Was the learned Trial Judge right in not distinguishing in his judgment the meaning and effect of sections 5 and 8 of the Public Lands Acquisition Law Cap. 105 of the Laws of Eastern Nigeria 1963 applicable to Abia State.
ISSUE 2 (TWO)
What in Law is the effect of Non-compliance by the acquiring authority in this case with the provision of section 5 (supra)?
ISSUE 3 (THREE)
Was the Learned Trial Judge right in his interpretation of section 8 (supra)?
ISSUE 6 (SIX)
Was the Learned Trial Judge right in dismissing the case of the 2nd set of plaintiff instead of striking it out?
ISSUE 7 (SEVEN)
Was the Learned Trial Judge right in his evaluation of evidence of the parties in this case?
ISSUE 8 (EIGHT)
Was the Learned Trial Judge right in not assessing the damages suffered by the plaintiffs/Appellants in this suit?
The 6 issues identified by the 1st Respondent for the determination of the appeal are as follows:
“2.01 Whether having regards to the claim of the Appellant before the Lower Court and the Judgment of the Lower Court, Issues 1 and 2 in the Appellant’s Argument are relevant to the appeal herein.
2.02 Whether the learned trial judge must distinguish Sections 5 and 8 of the Public Lands Acquisition Law Cap. 105 of the Laws of Eastern Nigeria 1963 applicable in Abia State in determining the competing rights of the parties on the question of valid acquisition of title to land under the law, bearing in mind the combined effect of the provisions and the position of the law as relates to the parties.
2.03 Whether the trial judge gave due regard and interpretation of Section 5 of the public lands Acquisition law Cap. 105 of the laws of Eastern Nigeria 1963 in his judgment having regard to the competing rights of the parties and the best interest of justice under the circumstances.
2.04 Whether the trial Court was justified in dismissing the case of the 2nd set of plaintiffs/4th Appellant who contested the suit till conclusion of trial, bearing in mind the competing rights of the parties and the positions of the law.
2.05 Whether having regard to undisputed facts and the evidence before the lower Court proper evaluation of evidence material to the issue raised by the parties was done by the trial judge in determining the case at the lower Court.
2.06 Whether having regard to the decision of the lower Court especially on proof of due compensation to the 1st Appellant the trial Judge need further assess and or award additional compensation in damages for the 1st – 3rd Appellants.
The 2nd Respondent has nominated the following 3 ISSUES for the determination of the appeal.
3.1 Whether the trial judge was right dismissing the suit with regard to the provisions of sections 5 and 8 of the Public Lands Acquisition law Cap. 105 of the law of Eastern Nigeria 1963 bearing in mind, the competing rights of the parties.
3.2 Whether the appellants can at this stage raise the issue of non compliance with section 5 of the Public Lands Acquisition Law Cap, 105, laws of the Eastern Nigeria by the acquiring authority i.e. 2nd respondent when they did not join issues with the 2nd Respondent on it in their pleadings at the trial court.
3.3 Whether the trial court was justified in holding that the action was not statue barred.
On the 16th day of February 2009 this appeal came up for hearing. Learned counsel for the Appellants Chief Tagbo Nwogu Esq. identified the Appellant’s brief of argument dated 6/11/2002 and filed on 12/11/2002 and urged us to allow the appeal. I have observed that the learned counsel still referred to his Notice of preliminary objection filed on 9/9/2004 even though the record shows that this court on 15/9/04 struck out the objection. Again in the Appellants’ Reply reference was made to the 1st Respondents’ Issue No.1 at paragraph 3.01 of page 3 of its brief of argument and Issues 1 and 2 of the brief of argument of the 2nd Respondent. This Reply serves no useful purpose. It is of no moment, because the record shows that on 15/9/2004 the said Reply was struck out and the briefs upon which the objections were predicated have been amended and reparagraphed. It is wrong for the learned counsel to have referred to his Reply brief that was withdrawn and struck out on 15.9.2004. Again it shows loss of memory or absolute control and seizure with the facts of the events from the record of the court on 15/9/04 when the Appellants Notice of preliminary objection was withdrawn and stuck out. Absolute vigilance not indolence, honesty not dishonesty or deceit is the hallmark of a sound legal practice. With due respect the learned counsel for the Appellants failed to show this in the light of my observations above.
However, on his part, the learned counsel for the 1st Respondent C.U. IHEKWEAZU Esq. identified his brief of argument dated 3/2/2004 and filed on 4/2/2004 but deemed validly filed in which six issues were raised as earlier set out above. Without further amplification on these issues, the court was urged to dismiss the appeal.
The brief of the 2nd Respondent dated 17/5/2004 was filed on 3/6/2004 but deemed validly filed on 15/9/2004 with leave of court; having extended the time to do so.
However, before I decide which issues are apt and appropriate, in the circumstance, to determine the appeal I shall encapsulate the essential facts that led to this appeal. The Appellants’ case is that their late father purchased the land in dispute from the 4th Appellant who they claimed was by Ngwa Native law and custom, one of the Descendants of OLA, they original owner of “OVORO EGBELU” land (now in dispute). That they inherited same and have been in possession before the 1st Respondent came into the land.
It is the 1st Respondents’ case that the Appellants pleaded some documents to support their claim, but they never produced any at the trial and did not lead any traditional evidence as per the custom and tradition of Ngwa Land. That they admitted the acquisition of the land but claimed to have challenged same in a pending suit.
The 1st Respondent’s case and statement of facts duly adopted by the 2nd Respondent are as follows:
That the land in dispute belong to the 1st Respondent by virtue of its valid title to the land evidenced by its statutory right of occupancy, which was duly granted by the then Imo State Government. Consequently the 1st Respondent has remained in possession of the land pursuant to the aforesaid grant exercising therefore rights of ownership in accordance with the grant. Prior to the grant to the 1st Respondent the Imo State Government had acquired the land, among others, and granted the land in question to the 1st Respondent for public purpose and the 1st Respondent proceeded to take possession and built a soft drink, Industry on the land worth over N5 million at the material times but presently worth over N500m and employing over one thousand Nigerians in line with the grant. It was the 1st Respondent’s case that it had adequately proved that upon the acquisition the 1st – 3rd Appellants were paid compensation with grant of alternative plots by the Government upon their request. The 1st Respondent tendered and relied on Exhibits D, E, F, G, H, J, K and others to prove its title.
The 2nd Respondent adopted and relied on statement of facts stated by the 1st Respondent. Further the 2nd Respondent relied on Exhibits N, O, P, Q, R to prove that the 1st – 3rd Appellants were duly compensated after the acquisition of the land.
Trial was conducted and concluded on the basis of the respective cases of the parties in their pleadings and documents exhibited.
From the foregoing, the determination of the appeal does not call for unnecessary proliferation of the issues as done by the Appellants and the 1st Respondents. The 2 Issues save Issue 3, nominated and set out by the 2nd Respondent to my mind, are apt and relevant to the determination of the appeal. These, issues have been set out above. I shall consider the 1st and second issue herein together and the third on its own later.
The first issue has to do with whether the dismissal of the Appellants’ suit by the learned trial judge was right having regard to the provisions of sections 5 and 8 of the Public Land Acquisition Law Cap. 105 of the Law of Eastern Nigeria (then applicable in Imo and Abia State) bearing in mind the competing claims of the parties. The second issue is whether the Appellants can at that state of the trial and now raise the question of non-compliance with section 5 of the Public Lands Acquisition Law (supra) by the acquiring authority (i.e. the 2nd Respondent herein) when they did not join issues with the 2nd Respondent on it in their pleadings at the trial court.
Clearly issues 4 and 5 of the Appellants having been abandoned struck out, any arguments canvassed thereon must be discountenanced. Appellants’ Issues 1, 2, 6 and 7 are subsumed by the first and second issues aforesaid of the 2nd Respondent. Similarly, the 1st Respondent has Responded to these questions in their issues 2.02, 2.03. Hence, as it intended that the issues will be taken together.
It is the contention of the Appellants that the learned Trial Judge failed to distinguish between the meaning and effect of section 5 and 8 of the Public Lands Acquisition Law Cap. 105 of the Laws of Eastern Nigeria applicable in Abia State. Alluding to section 8 (supra) learned counsel has contended that no specific specimen Form is required to give or issue- “Notice of Intention to take possession” In effect the acquiring authority may issue such notice in any form it deems convenient. That DW4 one EGBEGBU KALU UKARIWO, the then Deputy Director of Lands, gave evidence on procedural aspect of the acquisition of property in dispute and tendered Exhibits “L” and “M” an affidavit of service sworn to by one Mr. Linus Ehirim a retired official of the Abia State Ministry of Lands, now resident in the U.S.A. Exhibit ‘M’ an official gazette of the Imo State Government. It is contended that evidence of DW4 was wholly on the records available to him, as he was not in the zone at the relevant time. That in the absence of his personal
knowledge of the circumstances surrounding Exhibit ‘L’ his evidence should be regarded as mere conjecture.
That this is more so in respect of service or non-service on the 2nd Appellant. That in its strict sense there was no evidence before the court about the service of any notice by the acquiring authority pursuant to Sections 5 and 8 (supra). It is submitted that since the 2nd Respondent introduced the issue of compulsory acquisition of land in dispute, the onus was on him to strictly prove it. Reliance was placed on the cases of OSAWARU V. EZEIRUKA (1978) 6-7 SC. 135; A.G. BENDEL STATE V. AIDEYAN (1989) 4 NWLR (Pt.593) 17; MOGAJI V. ODOFIN (1978) 4/5 SC 91-98 and AJIDE V. KELANI (1986) 3 NWLR (Pt.12) 248 at 265 – 266. Learned counsel has submitted that this onus was not discharged by the 2nd Respondent. He further questions the validity of Exhibit ‘M’, the fulcrum around which the defence of compulsory acquisition of land in dispute revolves. That the question that arises is how come about that a Notice of Acquisition of Land compulsorily dated at Owerri on 14/1/1977 came to be published only in 1988 in an Imo State Government Gazette of 1/9/1988. It is argued that what can be taken as the date of issuance of the notice is 1988 and not 1977. Reliance was placed on the case of BANK OF THE NORTH V. BABATUNDE (2002) 7 NWLR (Pt.766) 389. Relying on the evidence of DW3, it is contended that the transactions leading up to a grant of statutory certificate of occupancy of the land in dispute took place in 1987. He distinguished the case of OVIAWE V. INTEGRATED RUBBER PRODUCTS (NIG.) LTD (citation not supplied) from the instant case and finally urged us to allow the appeal.
Learned counsel for the 1st Respondent purported to have taken a preliminary objection to issue 1 and 2 nominated by the Appellants in their brief. The 1st Respondent never filed any formal Notice of Preliminary objection. At least this is not borne out of the record of this court. But the record shows that on 15/9/2004 this court struck out the Appellant’s Reply to the 2nd Respondent’s Preliminary objection which only appears under Issue 1 at paragraph 4.01 (not 3.01 alluded to by the Appellants). Be that as it may, having carefully looked into issues 1 and 2 of the brief of the Appellants I am of the view that they are relevant to this appeal. In their amended statement of claim the Appellants pleaded the Traditional History of the land in dispute and acts of ownership and possession. This is where they have hinged their claim. However, I have come to agree with the 1st Respondent’s counsel on one point, that is, the issue on compliance and/or distinction of sections 5 and 8 of the Public Lands Acquisition Law Cap. 105 (supra). I agree with the learned counsel that whether or not there was due compliance with the said sections is a question of pleadings and evidence. It must be pleaded first and properly raised in the trial court.
This was not done. It is late in the day to do so. This obvious lapse is fatal to the Appellants’ case. They cannot now change the face of this case at the stage of Appeal, to raise issues on claims not properly canvassed before the trial court. This court is a court of appeal. It is an appellate court. Section 239 of the 1999 Constitution, no doubt confers original jurisdiction on the Court of Appeal. The present case does not fall under that section. It was brought under the appellate jurisdiction of the court as conferred by section 240 of the constitution. The Appellants came to this court on appeal. They can only raise issues on claims canvassed before the lower court. In the case of ADEGOKE MOTORS LTD. V. ADESANYA (1989) 3 NWLR (Pt.109) 250 at 266 the apex court had this to say:
“Generally an appeal is regarded as a continuation of the original suit rather than inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeal new issue without express leave of court or to prefer new evidence without such leave. An appeal being a judicial examination by a higher court of the decision of an inferior court, it follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior court for decision.”
See further SHONEKAN V. SMITH (1964) All NLR 168- 173.
The learned counsel for the 1st Respondent however, ex-abundanti cautela, in the alternative, submitted that the argument of the appellants relating to the effect of sections 5 and 8 of the Public Land Law Acquisition law (supra) was to cause confusion and misconceive the clear provisions of the two sections. It is submitted that the learned trial judge gave due regard to the meaning and interpretation of section 5.
That the interpretation of similar provisions of the law makes service of the Notice on affected person irrelevant and failure to serve or publish the same is not fatal. See OVIAWE V. INTEGRATED RUBBER PRODUCTS (NIG.) LTD (1977) 3 SCNLR 29 at 42 and 47. It is submitted that the learned trial judge need not distinguish the two provisions (sections 5 and 8) in view of the current position of the law and the applicable law under the circumstances.
On his part, learned counsel for the 2nd Respondent, has submitted that the trial judge was right in dismissing the suit of the Appellants bearing in mind the competing rights of the parties. That the land in dispute was acquired by the then Imo State Government in 1977 in view of the provisions of the Public Land Acquisition law (supra) and also by Virtue of the State Creation Provisions Decree 1991. That by virtue of the compulsory acquisition by the 2nd Respondents and the grant of Certificate of Occupancy to the 1st Respondent, the rights of the Appellants became extinguished and non-existent.
The essential facts and undisputed facts admitted by the parties particularly the Appellants are that: The interest of the 1st Respondent is traceable to the acquisition of the land in dispute for public purpose. At page 206 of the record the trial court had this to say:
“The court agrees also with him (Chief Nwogu) that the 1st defendants in paragraph 4 to 11 of their amended statement of Defence, traced their root of title to the land in dispute to Exhibit ‘H’ – the statutory certificate of Occupancy granted them. Chief Nwogu has submitted that the interest of the 1st defendants is traceable to the said acquisition of the land in dispute for public purpose.”
It is the claim of the appellants that they were in possession until 1975 when the East Central State Government acquired the land and they had to challenge the acquisition in court in 1975. But it is admitted fact that the 1st defendant gained possession of the land in dispute claiming under a statutory Right of Occupancy granted and registered as No.65 at page 65 in Volume 174 and dated 20/11/1987. The identity of the land in question was certain and known to all the parties and identified in survey No ABA (M) 78″. The manner in which the acquisition was carried out, having regard to sections 5 and 8 of the Public Lands Acquisition Laws (supra) was never challenged by the Appellants at the lower court. (Sec pages 186 – 187 of the Record).
The question now is, having regard to the provision of sections 5 and 8 of the said law, can the trial judge be said to be justified in the conclusion reached? To attempt to answer this question in the affirmative, regard must be had to the following law and facts:
What is the requirement for compulsory acquisition of land for public purpose under the Public Land Acquisition Laws Cap. 105 of Laws of Eastern Nigeria 1963 applicable in Abia State? It requires Notice but it need not be in any prescribed form but may be in form of “Form A” or to the like effect. Consequently, any form of Notice which conveys the intention suffices, as the use of the word ‘may’ in section 8 makes it discretionary for the authority to use any form of Notice. The word “may” is a permissive or an enabling expression. It does not mean “must”, See SHEFFIELD CORPORATION V. LUXFORD (1929) 2kb 180 at 183; OHANAKA V. ACHUGWO (1998) 9 NWLR (Pt.564) 37 at 66 and OKO V. IGWESHI (1997) 4 NWLR (Pt.497) 46 at 60. In the case at hand it is in evidence, and this is not challenged, that due Notice was issued and even served on the appellants through the 2nd Respondent. Under section 8(1) and (2) the acquiring authority retains the discretion to direct the person to yield possession in the notice issued under section 5 of the law or in any subsequent notice within a maximum period of 6 weeks to enter and take possession. It is worthy of note that by Imo State official Gazette No. 15 of September 1988 Vol. 13, Government Published a Notice of intention to acquire the said land in dispute after due issuance of Notice. The trial court admitted the certified true copy of the Gazette in evidence and marked it as Exhibit “M”. (See page 153 of the Record). At page 211 the learned trial judge found thus:
“Now Exhibit “M” is the Imo State of Nigeria Official Gazette No.15 of 1st September 1988 Vol.13. Therein is contained as I.S.L.M. No. 20 of 1988; the Notice of Acquisition served on the claimants. Thus, in the said Exhibit “M”, the Government gave notice of its intention to acquire the said land to the whole world. The description is stated to be “STATE ACQUISITION FOR NEW INDUSTRIAL LAYOUT AT ABA”.
The interpretation of similar provisions of Public Acquisition Law Cap. 136, Laws of Bendel State 1976 make service of the Notice on affected person irrelevant and failure to serve or publish not fatal. In the case of OVIAWE V. INTERGRATED RUBBER PRODUCTS (supra) at page 47 the Supreme Court per IGUH JSC, has this to say:
“In my opinion the issue of service or publication of such notice of intention to acquire land by Government, in so far as the law now stands, is immaterial and irrelevant. It is only the notice of intention to acquire land that needs be validly issued and no more and failure to serve or publishes the same; though desirable, is not fatal to the acquisition under section 20 of Decree No.33 of 1976.”
Let it be noted that the said acquisition by the Government relates to a vast area referred to as the “New Industrial Layout,” at Aba and of which the land in dispute is only a part. It has been held that compulsory acquisition of land for Industrial purpose falls within the definition of acquisition for public purpose. See OVIAWE V. INTEGRATED RUBBER PRODUCTS NIGERIA LTD (supra). It would appear that the Appellants never challenged the acquisition not did they seek any declaration to invalidate or void the acquisition in their action before the lower court. The Appellants never challenged the said acquisition in this appeal. In fact the Appellants have conceded in their issue 3 which is distilled from ground 3, that by virtue of section 20 of the Public Lands Acquisition (Miscellaneous Provisions) Decree No.30 of 1976, and the interpretation of that section by the Supreme Court at page 42 of the ease of OVIAWE (supra), a piece of land vests in a Government after 6 weeks notice of intention to acquire a land compulsorily. They agree that there is nothing further to be done by the acquiring authority and therefore concede further that the learned trial judge was right in his decision on this issue. Furthermore, the Appellants have abandoned their issues 4 and 5 distilled from grounds 4 and 5 of the grounds of appeal. These issues and grounds from which they were distilled have been set out above. In effect the Appellants are in agreement with the interpretation and construction of sections 5 and 8 of the Public Lands Acquisition Law (supra) as earlier observed. That the learned trial Judge was right in holding that a vesting orders from a High Court is not necessary because of provisions of the Land Use Act, 1978. Vesting order is not a mandatory requirement of law, He was therefore right in holding that the acquisition of the land in dispute by the then Government of Imo State and the grant of a certificate of Occupancy in respect thereof to the 1st Respondent was an act done for a public purpose. The reasoning of the learned trial judge in view of sections 5 and 8 of the Public Lands Acquisition Law was apt bearing in mind the facts before the court and effect of the relevant laws.
The Appellant, in their evidence admitted that they challenged the acquisition in a different court but they failed to produce any document or copies of the, proceedings to prove the fact. Section 135 of the Evidence Act provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. The Courts have interpreted this section to mean that “he” who asserts must prove”. See FAMUROTI V. AGBEKE (1991) 5 NWLR (pt. 189) 1 at 13E SC; C.O.P V. OGUNTAYO (1993)6 NWLR (Pt.299) 259 at 268E. The onus is to prove a positive assertion and not a negative one, because he who desires cannot produce any proof. See EJINIYI V. ADIO (1993) 7 NWLR (Pt.305) 320 at 330.
The Appellants herein have failed to produce their assertion that they challenged the acquisition of the disputed land in a different court. Their failure to produce that evidence must operate against them in that if same was produced it would have been unfavourable to them. See section 149(d) of the Evidence Act. The burden of proof which clearly lies on the Appellants have not been discharged. It is therefore my respectful view that the acquisition of the land in dispute was proper and that section 5 of the Public Land Acquisition Law (supra) was duly complied with. The procedure for acquisition was duly proved on the balance of probability which is the standard of proof required in law. See MARK UGBO V. ABURIME (1994) 8 NWLR (Pt.360) 1 at p.20. In Civil cases the preponderance of probability may constitute sufficient ground for a verdict. The standard of proof required in civil cases is not “beyond reasonable doubt”. The 1st Respondent proved its title through its witnesses and tendered relevant documents. Such as Exhibit ‘D’, the certified true copy of a letter of offer granted by the Ministry of Commerce and Industry to the 1st Respondent to establish its factor; certified true copy of letter of Acceptance of offer by the 1st Respondent, Exhibit ‘E’; certified true copies of evidence of payments of relevant fees and certificate of occupancy – Exhibits ‘F’, ‘G’ and H. respectively. Three certified true copies of various developmental fees, charged by the Aba Local Government Exhibits ‘J’ and ‘K’. The 2nd Respondent on their part as said, earlier, also proved due acquisition of the land of which the land in dispute formed part of. The Appellants merely tried to trace their purported title to the 4th Appellant, but could neither produce the receipt of purchase nor relevant particulars of the suit in which they allegedly challenged the acquisition.
With respect to the question of dismissal of the case of the 2nd set of the Appellant i.e. the 4th Appellant herein it must be noted that he was a Party in the suit at the lower court; He contested the suit till conclusion of trial. He never applied for leave of court for his name to be struck out on grounds of misjoinder as required under Order 11 rule 2 of the Imo State High Court Civil Procedure Rules 1988 applicable at the material time and did not present any formal application in respect thereof. No formal application to strike out the 4th Plaintiff/Appellant’s name from the said suit was presented to the court. The only application to strike out his name was made by the Appellants’ counsel in his final Address on his own facts stated in his submissions.
The court is not bound to rely on the evidence of counsel to make any pronouncement as such. See NAB. LTD V. FOLLY KEMO (NIG.) (1995) 4 NWLR (Pt.38) p.100. To strike out the name of the 4th Appellant under the circumstances require the leave of court and satisfactory material and reasons shown to enable the court exercise the discretionary powers under Order 11 rule 2 of the said Rules (supra). I therefore hold the view that the learned trial judge was right in dismissing the 4th Appellant’s suit as some was fully heard by him.
On the question of evaluation of evidence by the Court, it is trite law that the ascription of probative value to evidence is the primary function of the court of trial and generally the appellate court will be show to disturb the findings of a trial court where it is shown that the trial court has taken advantage of having seen and heard the witnesses testify before making such findings of fact in the instant case the relevant part of the judgment of the trial court are as contained at pages 201- 203, 208 – 209, 211, 212, 214 – 216; 219 – 225 of the Record. In these pages the learned trial judge has thoroughly evaluated the relevant evidence in line with the issues raised from the claim of the Appellants and the Defence of the Respondents herein. The findings are sound and unassailable. It has not been shown that the trial court had not taken advantage of having seen and heard witnesses testify before it. The lower court in its evaluation preferred the evidence of the Respondents’ witnesses and gave reasons thereto which were supported by legal authorities. This approach by the trial judge has served the end of justice and has not in anyway occasioned a miscarriage of justice.
Further, in resolving issues 1 and 2 of the Appellants and Issue 1 of the 1st Respondent before the lower court, it relied on documentary and oral evidence.
The evidence of the witnesses were duly evaluated and relevant conclusion drawn. Again, in resolving issue 3 of the Appellants and issue 2 of the 1st Respondent, before the lower court, it examined the evidence of the witnesses and the documents tendered, before arriving at the conclusion, I find that the evidence examined was material and relates to the issues raised therein before the court. There has therefore been proper evaluation of material evidence and the issues raised. Hence, there is no need to disturb the finding of fact.
As for the issue of assessment of damages, this can only arise where damages have been proved, See ODIBA V. AZEGE (1996) 9 NWLR (Pt.566) 370 at 385.
Consequently, where damages are not proved the trial court cannot involve itself in superlative calculation of damages. The trial court must have established in the first place, the bases for the award of damages. This was not done in the instant case. The lower court was therefore right in not calculating possible damages as same were not proved. It has become an elementary principle of law that a party or claimant can only get what he claims if both on the pleadings and the evidence, he has successfully made out and proved his case. See U.T.C. V NWOKORUKU (1993) 3 NWLR (Pt.281) 295 at 308; S.C.O.A. (MOTORS) V. ABUMCHUKWU (1973) 4 SC 51.
The Third Issue raised by the 2nd Respondent is whether the trial court was justified in holding that the action was not statute-barred. The learned trial judge found on this issue and held that the appellants brought their action timeously and it was not statute – barred. Naturally, the Appellants were satisfied with that finding, and expectedly, they could not have appealed against it. The 2nd Respondent did not file a Respondent’s Notice or cross-appeal against that decision. It is trite law that a respondent seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal.
This is because it is on those findings that any decision in the appeal one way or another can correctly be made.
See ELOCHIN (NIG) LTD V. MBADIWE (1986) 1 NWLR (Pt.14) 47; ANZAKU V. NASARAWA STATE (2005) 5 NWLR (Pt.919) 448 at 476. Since the 2nd Respondent did not cross-appeal they cannot now seek to correct an error standing in their way in the main appeal. In effect, though aggrieved, but having not cross appealed they cannot be heard to say that the trial judge was wrong to hold that the action of the Appellants was not statute – barred.
On the whole this appeal lacks merit and is hereby dismissed.
The decision of lower court is consequently affirmed. I adjudge appellants liable to the 1st Respondent for the costs of this appeal fixed at N30,000.
Other Citations: (2009)LCN/3217(CA)
