Chief Thomas Ekpemupolo V. Godwin Edremoda (2009)

LAWGLOBAL HUB Lead Judgment Report

F. TABAI JSC 

The two suits culminating in this appeal were commenced at the Warri Judicial Division of the High Court of the then Mid-West State of Nigeria. The first Suit No. W/l32/70 was filed on the 2nd of December, 1970. The Plaintiffs are the Respondents before this Court. The, sole Defendant, Shell B.P. Petroleum Development Company of Nigeria is the 6th Respondent herein. By an application dated 17/12/70 and an order of court pursuant thereto dated 12/1/71 the Appellants were joined as Co Defendants.

The 2nd Suit No.W/62/71 was filed on the 6/5/71. The Plaintiffs therein are the Appellants and the Defendants therein, the lst-5th Respondents herein. The two suits were by an order of Court on the 11/6/73 consolidated and tried. By its judgment on the 4/12/1980 the trial Court allowed the claim in Suit No. W/l 32/70 and dismissed the claim in Suit No.W/62/71. In allowing the claim, the learned trial judge E.E. Akpata J (as he then was) stated at page 149 of the record:

“In sum therefore in respect of Suit No. W/132/70, the Plaintiffs are hereby granted a declaration of title to all the piece of land verged RED in survey Plan No. M/GA. 71/72, Exhibit ‘A’ in these proceedings. They are also entitled to the total sum of N9,500.00 which the company has deposited in the Government Treasury in Benin City. The company is to pay this amount or see to it that the amount is paid by the Treasury to the Plaintiffs. The company, Shell B.P. Development Company of Nigeria Limited is hereby restrained from paying any money in respect of all the land verged RED in Exhibit ‘A’ to any person or persons other than the Plaintiff.”

The Defendants/Appellants were aggrieved by the said judgment and proceeded on appeal to the Court below. By its judgment dated the 7th January 1994 the Court below dismissed the appeal.

And still dissatisfied with the said judgment the Defendants/Appellants have come on further appeal to this Court. The original Notice of Appeal dated and filed on the 23/2/1994 raised two grounds of appeal. The Amended Notice of Appeal was dated the 28/6/2006 and same was filed on the 29/6/2006. The Notice raised three grounds of appeal. The grounds without their particulars were:

GROUND I

The Court of Appeal Benin erred in law when it dismissed the Appellants’ appeal on the ground that the appeal has not been argued according to the rules of court.

GROUND 2

The learned Justices of the Court of Appeal erred in law when they affirmed the judgment of the High Court having regard to the fact that they did not evaluate exhibit “A” (i.e. Plan No. M/GA71/72 to which the declaration was tied thereby occasioning miscarriage of justice.

GROUND 3

The Court of Appeal erred in law when it affirmed the judgment of the trial Court which entered judgment in favour of the Plaintiffs/Respondents and granted reliefs not contained in their amended Statement of Claim.

Briefs were duly filed and exchanged. The Appellants’ Amended Brief was prepared by Larry S and same was filed on the 13/10/07. He also prepared the Appellants’ Reply Brief which was filed on the 5/11/08. The 1st – 5th Respondents’ Brief was prepared by John Alele and it was filed on the 8/7/08. In the Appellants’ Brief learned counsel, Larry S. formulated three issues for determination.

In the lst-5th Respondents’ Brief learned counsel John Alele seems to have adopted the issues formulated by the Appellants without expressly saying so. In sum therefore the parties are in agreement as to the issues for determination in this appeal. The issues are: