Mr. Marvin Faithful Awara & Ors V. Alaye Alalibo & Ors (2002)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
The appellants were defendants to an action instituted against them and their community by the respondents, as plaintiffs in the High Court of Rivers State, holden at Degema. In the suit the respondents’ claim is as follows:
(i) “That the plaintiffs as the owners in possession of the Aba Boko Fishing Port are the persons entitled to the compensation payable by the Shell BP Petroleum Development Company of Nigeria Limited.
(ii) An order directing the Ministry of Finance, Rivers State to release to the plaintiffs all the sums of money paid into the Rivers State Treasury by the Shell BP Petroleum Development Company of Nigeria Limited as compensation in respect of the Ekulama Location at Aba Boko.”
The respondents explained in their statement of claim the subject matter in dispute between them and the appellants. Originally the dispute was between the respondents and Idama/Ekulama people. The dispute arose when Shell BP discovered oil at Aba Boko settlement. Shell BP decided to pay compensation to the villagers or communities on whose land the oil was found. The dispute went before the divisional officer at Degema but no agreement was reached. The Idama/Ekulama community thereafter sued the respondents before the High Court, in suit no. PHC/97/91, and claimed for declaration of title to the mangrove swamp, the site of the location and an injunction restraining the respondents from interfering with their title, rights and interests in and over the location.
The appellants, in the present case, applied to be joined as second set of defendants to the suit filed by Idama/Ekulama community. Their application was granted and they filed their statement of defence. The High Court dismissed the case of Idama/Ekulama. The appellants and the respondents now locked horns on which of the two communities is entitled to the compensation money. Meanwhile, Shell BP paid the compensation money into the Treasury of the Rivers State Government pending the determination of the dispute over the party rightly entitled to be paid the compensation money.
Pleadings were called and delivered. Each party called witnesses in proof of their respective claims. The learned trial Judge, at the end of the trial, dismissed the action filed by the respondents against the appellants. Dissatisfied with that decision the respondents appealed to the Court of Appeal, Port-Harcourt Division. The Court of Appeal, in a considered judgment, found that the respondents had established their claim to Aba Boko fishing port. The appeal was allowed.
It is against the judgment of the Court of Appeal that the appellants have now come before this court. Four issues were identified by the appellants for the determination of this appeal. The issues are as follows:-
“1. Whether the Court of Appeal properly considered all the issues in the appeal.
- Whether the Court of Appeal was ight in shifting the onus of proof on the defendants/appellants.
- Whether Court of Appeal was right in making a case for the respondent which is contrary to the case put forward in the High Court.
- Whether the Court of Appeal was right in holding that the respondents have proved their radical title to the land in dispute.”
After going through the issues raised by Chief Debo Akande, SAN, for the respondent, I will accept that those issues are more relevant to the grounds of appeal filed for the consideration of this appeal. The respondent’s issues read as follows:
“1. Whether Aba Ama was in dispute so as to make it necessary for the lower court to resolve issues relating thereto in reaching a decision on Aba Boko.
- Whether Court of Appeal had infact shifted the burden of proof unto the appellants.
- Whether the Court of Appeal actually made a case for the respondents different from the case placed before the trial court by the respondents.
- Whether there were enough materials on the record of proceedings before the Court of Appeal upon which the Court of Appeal’s decision that the respondents have proved their title to Aba Boko can be based.”
I will start with issue 4 which is common to both the appellants and respondents. It is, in my view, the main issue for the determination of this appeal. Before I go further in considering the matter raised in this issue I would like to state that there is no dispute over the fact that communities which first settled within the oil locations are entitled to be paid compensation. The appellants stated this fact in paragraph c of the amended statement of defence. In that paragraph they averred thus:
“5(a) With further reference to paragraph 13 of the statement of claim, the defendants averred that communities which first settled within the oil locations are entitled to be paid compensation and by virtue of first settlement within the area in dispute the defendants are entitled to be paid compensation to the exclusion of the plaintiffs.”
The respondents on their part, made similar averment in paragraph 13 of their statement of claim wherein they pleaded as follows:
“13. The plaintiffs will contend at the trial that even though the mangrove swamps within the Kalabari territory are for the common use of every Kalabari person yet communities who have established settlements within the mangrove swamps are entitled to compensation and Shell BP paid and still pays compensation for locations to the villages or communities in whose vicinity the location situates, for example:-
Soku locations are claimed by Soku community. Idama Locations claimed by Idama Community. Abisa location claimed by Abisa community. Krakrama locations claimed by Krakrama community. Bogi village locations claimed by Soko community. Elem Sangama locations claimed by Elem Sangama. Elegbaboko location claimed by Prince will family of Buguma. Jumojumo Kiri location claimed by the Lawson House of Buguma, and several others.”
The appellants relied on traditional history to establish their claim to both Aba Boko and Aba Ama. They argued that Aba Boko which was a fishing port and Aba Ama which was an ancient settlement were founded by their ancestors, Omonise and Abe, respectively, from Opukula over 400 years. The appellants exercised acts of ownership over their various original settlements for many years unchallenged. They also founded many fishing settlements in the area and were paid compensation by oil companies who discovered oil in the location of those settlement.
The respondents on their part, as plaintiffs at the trial court, submitted that they were the owners of both Aba Boko Kiri and Aba Ama. They tendered a plan no. TJ.R 41 LD dated 20/11/73 in suit no. PHC/97/71 (which I mentioned earlier in this judgment) in a case the respondents fought with Idama/Ekulama people over the oil location at Aba Boko. The respondents called evidence to show that four fishermen from their Community founded Aba Boko Fishing Port. The names of the fishermen were given as Isaac Kio, Green Ogonobere, Ila Eferebo and Dokubo Wari. They founded the fishing port by reclaiming the mangrove swamp and building huts thereat.
The most important witness for the respondents is Chief Walter Omoni Alasia. He gave evidence as defence witness no.1 in suit no. PHC/97/71 which I mentioned earlier in this judgment. In that suit both the present appellants and present respondents were co-defendants in the claim filed by Idama/Ekulama community over the ownership of “Alagba Mburu” in Aba Boko. Each set of defendants in that suit called witnesses to establish their title to the disputed fishing settlement. The Idama/Ekulama people lost the case leaving the two defendants to fight out who is the rightful claimant to the compensation paid for the oil location at Aba Boko. During the hearing of this case in the High Court, learned counsel for the respondents referred to s.34 of the Evidence Act and applied to tender the evidence of Chief A.K. Offor which he gave in suit no. PHC/97/71. Chief A.K. Offor was a leading witness for Kula people in that suit. Learned counsel for the respondents in the case in hand told the trial High Court that Chief Offor was dead and that his evidence was vital for the determination of the plaintiffs/respondents’ case. Mr. Ogunwole who appeared for the defendants/appellants raised no objection and the whole evidence of Chief Offor was admitted and marked as exhibit 4. In his testimony before the trial High Court in that suit, Chief Offor told that court that Kula settlement was very far away from Aba Boko. He further testified as follows:
“It is not correct that Shell BP met Ekulama people and their tenants at the area in dispute, no, Shell BP did not meet Kula at ‘Aba Boko’ but when we saw them we told them we owned the area in dispute, that was in 1956. We did not tell our solicitor that we talked with Shell BP in 1956.”
It is clear from this piece of evidence that the appellants were not in possession of Aba Boko when Shell BP struck oil there as is evident from the testimony of Chief A.K.D. Offor. He told that court that Kula people were not present in the fishing port when Shell B.P. entered the location.
In his evidence before the trial High Court Chief Walter Omoni Alasia testified that that Aba Boko oil location was established in 1956 and that he knew the four fishermen from their community who established Aba Boko. He gave the trial court the names of the fishermen and their fathers in the following testimony.
“Four fishermen were the people who first went to Aba Boko fishing port originally. They cut the mangrove swamp and developed it, built houses and settled there and fish. Later other fishermen came and joined them. The four fishermen were: Isaac Kio, Green Ogonobere, Ila Eferebo and Dokubo Wari.”
PW 1 continued at page 55 of the record thus:
“Kio was the father of Isaac Kio. Ogonobere was the father of Green. Iwari was the father of Dokubo Wari. Eferebo was the father of Ila Eferebo. Aba Boko was founded over 30 years ago before the Nigerian civil war. I am not sure of the exact date…”
It is crystal clear that the respondents’ case was not based on traditional history but, as Chief Debo Akande submitted, it was based on direct and positive evidence. The position of the law of evidence is clear in regards to pleadings. Parties are bound by their pleadings and evidence which is at variance with the averments in the pleadings must be disregarded by the court, whether objected to or not. Njoku v Eke (1973) 5 SC 293; N.I.P.C. v. Thompson Organisation (1969) 1 All NLR 138.
But is it correct that in paragraph 10 of the statement of claim the respondents pleaded traditional history With respect to the learned counsel for the appellants, the averments in that paragraph cannot be said to have been based on traditional history. P.W.1 who gave evidence on the establishment of Aba Boko told the trial court that the fishing settlement was founded 30 years before the Nigerian civil war. He gave the names of the fishermen who established the port and gave the names of their fathers. The defence, during the trial did not cross-examine him as to whether he knew those fishermen personally or not. His evidence is positive on the identity of the fishermen. It is axiomatic that there was enough materials on the record of proceedings before the trial High Court which guided the Court of Appeal to hold that the respondents have proved their radical title to the land in dispute.
In issue I learned counsel for the appellants tried to make Aba Ama relevant to the case in issue. He referred to contradiction in plaintiffs/respondents’ evidence on Aba Ama. He pointed to the evidence of PW1 where he told the trial court that one Idiom founded Aba Ama and to the evidence of PW4 where he said that Idiom was not the founder. It is however very clear from the declaration sought before the court that Aba Boko is the only settlement in dispute. Aba Ama was not. I have reproduced the claim of the respondents earlier, in this judgment and it can be seen from the claim that the respondents asked the court to declare that they were the persons entitled to be paid compensation from Shell B.P for the oil location at Aba Boko fishing port. Aba Ama was only mentioned in order to show that Aba Ama and Aba Boko were in the same area. In his evidence PW4 explained how Soku people owned both Aba Ama and Aba Boko in the following words:
“I know Aba-Ama. Aba-Ama and the land in dispute are in the same vicinity. Soku people are the owners of Aba Boko fishing port and Aba-Ama. In the olden days Aba Ama was small town. In those days bigger towns used to go and conquer smaller towns. Because of this, Aba-Ama moved with their households to Soku because Soku was a very powerful town.”
The testimony clarified any assertion that Aba Ama is also in dispute between the parties. The wordings of the claim before the trial court are clear that Aba Boko is the settlement in dispute. It is wrong to impute what the respondents did not make as their case. I agree with the court below that Aba Ama is not in dispute between the parties.
The appellants submitted, in issue 2 that the learned trial Judge shifted the onus of proof on the appellants. Learned counsel for the appellants opened his argument, on this issue, with an erroneous submission; that the respondents relied on traditional history in establishing their title to the land in dispute. I have already ruled that the case of the respondents was not based on traditional history. It was an error of the trial High Court to say that from the pleadings the respondents had onus of proving traditional history and acts of ownership in order to succeed in their claim. As quite rightly pointed out by Senior Advocate, Chief Debo Akande, the Court of Appeal after finding that the trial High Court was in error to hold that the respondents based their case on traditional history had to evaluate the whole evidence in order to weigh it on imaginary scale. See Mogaji v. Odofin (1978) 4 SC 91 at 94 and Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 265.
In re-evaluating the evidence the Court of Appeal was satisfied that the respondents had established their title to the land in dispute, and quite rightly found the case of the appellants not convincing enough. I have affirmed this finding because in my view, the respondents have established that they were the founders of Aba Boko and the evidence to that effect is very convincing. P.W.1 was old enough to know when Aba Boko was founded 30 years before the Nigerian civil war. His evidence could not therefore be said to have been based on traditional history.
Learned counsel for the appellants referred to contradiction in the evidence adduced by the respondents on the founding of Aba Ama. Such contradiction, if any, is not relevant to this case because Aba Ama is not the settlement in dispute. The claim of the respondents is clear and unambiguous and it concerns ownership of Aba Boko fishing port and nowhere else. In such a claim the onus is on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration he seeks. The acts of ownership must be positive enough to warrant the inference that the plaintiff is the exclusive owner. See Okiji v. Adejobi (1960) SCNLR 133 and Trauma v. Akpe-Ime (2001) 7 SC (Pt. 11) 24,12 NWLR (Pt.680) 156.
The respondents have proved through positive and convincing evidence that they were the community in control of Aba Boko before the oil was discovered by Shell B.P. there. Evidence was given that stranger non Kalabari settlers were paying rents to them. Clifford Quaker who gave evidence for the respondents in suit no. PHC/97/71 was not a Soku man. His testimony was tendered as an exhibit in the case in hand. He explained how he went about collecting rents from stranger settlers in the following testimony:
“I used to go round and collect rents from stranger settlers along Kalabari rivers. I collected the rents for the Kalabari people as a clan. I know these Soko people. My grandmother and I lived at Opukiri which was Soku settlement; it is along Soku river and on to Kula. I know those rivers and I collected rents along all those rivers I knew all the fishing settlements there. Soku people came each month to Opukiri and collected rents from the stranger settlers there from non Kalabari people. The settlement after Opukiri is Aba Boko and I had collected rents from stranger settlers for Kalabari. Aba Boko belongs to Soku people because Soku collected rents from stranger settlers there. After Aba Boko downstream are Opuonongi and Kala Onongi. I know the fishing settlement called Olomaboko near to Dabibi Kiri on the left after Apiboko.
Cross-examination by Dapps:
I lived at Opukiri in 1932 then at Aba Boko. I lived at Apiboko too. I was fishing in 1932. I do not know that Opukiri belongs to Ekulama. I do not know Aba Boko belongs to Ekulama. I do not know Ilumaboko; we call it Nembe Boko – both Soku and Nembe sacrifice to the juju there. I know the Ekuleama and Kula people here and they know me.
Cross-examination by Douglas:
I was a fisherman in 1932. I went to school in 1925. Even as a school boy I lived with my grandmother at Opukili. Was in school up to 1937. I am still the head of Opukiri fishing port.”
The relief claimed by the respondents at the close of their pleadings is very clear. They prayed the trial court to order for the payment of compensation money paid by Shell B.P. for the oil location at Aba Bohn. They further prayed for an order directing the Ministry of Finance, Rivers State, to release to them all sums of money paid into the treasury by Shell B.P. as compensation in respect of oil location discovered at Aba Boko.
I am satisfied that the learned Justices of the Court of Appeal had considered all the issues canvassed before them in respect of this case and had arrived at the correct conclusion that the respondents had established their root of title to the disputed fishing port of Aba Boko.
This appeal has therefore failed and it is dismissed. The judgment of the Court of Appeal is hereby affirmed. I award N10,000.00 costs in favour of the respondents.I. L. KUTIGI, J.S.C.: I read in advance the judgment just rendered by my learned brother Mohammed, JSC. I agree with the conclusion to dismiss the appeal. The plaintiffs’ claim is clearly confined to the Aba Boko fishing port where they claim to be owners in possession thereof. Any averment in the defendants’ pleadings which goes outside the relief claimed before the court goes to no issue and cannot be considered by the court (see for example Agu v. lkewibe (1991) 3 NWLR (Pt 80) 380; Ohiaeri v. Akabeze (1992) 2 NWLR (Pt.221) 1. Therefore despite the pleadings in respect of Aba Ama settlement in the defendants’ pleadings, the issue of Aba Ama did not call for any resolution see for example Akinfolarin v. Akinola (1994) 3 NWLR (Pt.335) 659; Nwadike v. Ibekwe (I987) 4 NWLR (Pt.67) 718. The Court of Appeal was therefore right when it held that Aba Ama was not in dispute. It was equally right when it resolved the issue of title to Aba Boko to the plaintiffs based on the direct oral evidence of witnesses before the court and not on any traditional evidence which the trial court had described as contradictory and which was in respect of Aba Ama settlement only. The Court of Appeal was again right when it held that the plaintiffs had established their claim to Aba Boko and that the learned trial Judge was in error to have found otherwise (see for example Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt.502) 630.
I have no hesitation whatsoever in dismissing this appeal as unmeritorious. It is accordingly dismissed with NI0,000 costs in favour of the plaintiffs.
SC.162/1997
