ABULE & ORS v. IWOWARI & ORS (2018)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of March, 2018

CA/PH/509/2015

Before Their Lordships

ALI ABUBAKAR BABANDI GUMEL  Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU  Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA  Justice of The Court of Appeal of Nigeria


Between

1. MR. GOODHEAD ABULE
2. MR. TIMIPAR K. BAFAMDEI
3. CHIEF ISAAC YOUSUWU
(For themselves and as representing the members of the Diebu Community of Southern Ijaw Local Government Area of Bayelsa State)-Appellants

AND

1. CHIEF IWOWARI
2. CHIEF IKEKIMA
3. CHIEF ALUKU W. AMABOGHA
4. CHIEF AUSTIN A. OSUMA
5. MR. IKIOMASI GILBERT
6. MR. DEINMA DAOFA
(For themselves and as representing the People of Epebu Community in the Ogbia Local Government Area of Bayelsa State) – 1ST SET OF RESPONDENTS

7. NIGERIA AGIP OIL COMPANY LIMITED – 2ND SET OF RESPONDENT-Respondents

…………………….A…………………….

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Bayelsa State of Nigeria Oporoma Judicial Division M. A. AYEMIEYE, J. presiding in Suit No. OHC/12/2011 delivered on the 2nd day of June, 2014. The Appellants as Claimants sued the 1st and 2nd set of Respondents as 1st and 2nd set of Defendants seeking for the reliefs contained in paragraph 21 of their Amended Statement of Claim dated 28th October 2013 as follows:-
1: A Declaration that the Diebu Community in the Southern Ijaw Local Government Area of Bayelsa State are the joint owners of the Obiama Land and are therefore jointly entitled to the right of occupancy over the said Obiama Land which said land is more particularly delineated and verged Red in Survey Plan No. FAABYS 002 LD 2013 dated 23rd July, 2013.
2: A Declaration that the Epebu Community cannot unilaterally lease out, dispose of or otherwise alienate the said Obiama land, without the consent and permission of the Diebu Community.
3: The sum of N5,534,486,333.80 as special damages being compensation to the Diebu Community 
or the 2nd set of Defendant’s use of the said Obiama land for the years 2007 -2011 and 21% interest per annum on the said sum with effect from 2011 until the delivery of judgment.
4: N5,000,000,000:00 (Five Billion Naira) only as exemplary damages.
5: N5,000,000,000:00 (Five Billion Naira) only as general damages.
6: An Order directing the 2nd set of Defendants to pay to the Diebu Community such reasonable annual compensation for the use of the said Obiama land as may be determined by a qualified and duly registered Estate Surveyor and valuer that may be appointed by the Court with effect from the year 2012 and subject to review every five years until the 2nd Defendant (sic) stops using the said Obiama land.
7: An Order of Perpetual Injunction restraining the 2nd set of Defendant (Nigeria Agip Oil Company Limited) from paying over solely to the Epebu Community any rentals or monies and or conferring solely on the said Epebu Community any benefits accruing on account of the use of the said Obiama Land by the said 2nd set of Defendants.
8: 10% interest per annum on any sum of money that this Honourable Court may award in 
its judgment in favour of the Claimants from the date of the delivery of the judgment until same shall be liquidated.
9: IN THE ALTERNATIVE TO RELIEF NO. VI ABOVE, AN ORDER OF PERPETUAL INJUNCTION restraining the 7th Defendant, its servants, agents and or privies from going upon the said Obiama Land as shown in the survey plan filed by the Claimants and or making use of same for any purpose without the consent of the Claimants. (pages 285 -286 of the record of appeal).

The 1st set of Defendants filed an Amended Statement of Defence and a Counter Claim on 27th February, 2014 pursuant to an order made by the trial Court on 25th October, 2013, wherein they denied the averments of the Claimants and counter claimed as follows: –
1: A Declaration that the 1st set of Defendants are the bonafide owners of the bush known as and called Obiama bush lying and situate at Epebu Town in Ogbia Local Government Area of Bayelsa State.
2: A Declaration that the Claimants are not joint owners of Obiama bush of Epebu Town Ogbia Local Government Area of Bayelsa State with the 1st set of Defendants.
3: An Order of Perpetual Injunction restraining t
he Claimants by themselves, their servants, Agents and privies from interfering with the 1st set of Defendants in their ownership and possession of Obiama bush the subject matter of this case.
4: An Order of Perpetual Injunction restraining the Claimants by themselves, their Agents, Servants and Privies from claiming ownership of all that land on which the facilities of the 2nd Set of Defendants facilities particularly its Pirigbene South East A Flowline are located and seeking any form of benefits from the 2nd Set of Defendant on account of its operations on the bushes.
5: N10,000,000:00 (Ten Million Naira Only) being the cost of this suit and damage suffered by the 1st set of Defendants for the Claimants claim to ownership of the lands in dispute in this case. (pages 483 -484 of the record of appeal).

Upon scrutinizing the judgment of the lower Court on page 608 of the record of appeal, I found the assertion by the learned trial Judge that the 2nd Set of Defendant now 2nd Set of Respondent has filed a Statement of Defence containing 10 paragraphs. I carefully perused the entire record of appeal but was unable to locate the 2nd

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set of Defendant’s Statement of Defence. Be that as it may, I will rely on the Statement of Defence of the 1st set of Defendatnts and the brief of argument of the 7th Respondent or 2nd set of Respondent to determine this appeal, however, on pages 388 to 399 of the record of appeal the Claimants filed an Amended Claimants Reply to the 1st set of Defendants Statement of Defence and Counter Claim dated 28th October, 2013.
The Claimant case as contained in their pleadings is that they are representing the people of Okigbene/Firebaghagbene Community in Southern Ijaw Local Government Area of Bayelsa State while the 1st set of Defendants are representatives of Epebu Community of Ogbia Local Government Area State. The 2nd set of Defendant is an incorporated company in Nigeria which, among others carry on business as Oil and Gas prospecting and producing company. The Claimants pleaded thus: –
4: The Diebu Community (i.e. Claimants) and the Epebu Community (1st set of Defendants) are joint owners of an old settlement comprising a very large expanse of land known as Obiama lying and situate in the Southern Ijawa Local Government Area of Bayelsa State. The said Obiama land is verged Red in Survey Plan No. FAA BYS 002 LD 2013, a copy whereof is filed herewith.
5: The Diebu and Epebu Communities for several years had disagreement over the ownership and use of the said Obiama Land as the Epebu Community attempted to deny the joint ownership of the said Obiama Land by the said two Communities.

That a prominent son of Diebu Community, Late Chief Dr. Zebulon Abule reconciled the two communities to agree to a joint ownership of the land in dispute culminating in a written agreement between the Diebu and Epebu Communities dated 30th April, 1998. That the 2nd set of Defendant refused to recognize the Claimants Community as joint owners of the land in dispute by refusing to pay to the Claimants the Annual Land Rentals or any monies at all. That the 2nd set of Defendant pays rentals and other monies to only the 1st set of Defendants.
That the 1st set of Defendants in their efforts to frustrate the Claimants from enjoying the lucrative income from the 2nd set of Defendant wrote a letter of complaint to the Hon. Commissioner Bayelsa State Ministry of Youths, Conflict Resolution and Employment Generation. That the said Commissioner invited both sides (Diebu and Epebu Communities) and the 2nd set of Defendant to a meeting. That: –
15: The Diebu and Epebu Communities as well as the 2nd set of Defendants (sic) fully attended the said meetings and participated in same and even attended a joint inspection of the said Obiama Land. The attendance list for one of the said meetings held on 5th day of May, 2010 is hereby pleaded.
16: In the said meeting, after initial denials, the Epebu Community representatives admitted that the Obiama land where the facilities of the 2nd set of Defendants are located is owned jointly by the said Diebu and Epebu Communities.”

That the said Commissioner, Bayelsa State Ministry of Youth, conflict Resolution and Employment Generation found that the oil and gas exploration and exploitation facilities of the 2nd set of Defendant is located on the land jointly owned by the Claimants and 1st set of Defendants. He directed the 2nd set of Defendant to recognize the Claimants among its host communities and accord them all benefits and privileges by paying them adequate compensation. That this directive was issued in writing to the Claimants and 1st and 2nd sets of Defendants vide a letter dated 29th September, 2009. That the 2nd set of Defendant remains recalcitrant by refusing to recognize the Claimants as their host community. In paragraphs 18 and 19 of their Amended Statement of Claim the Claimants pleaded thus: –
18: As a result of the persistent refusal of 2nd set of Defendants to pay the Diebu Community annual land rentals or compensation for the use of the said land and in view of the Bayelsa State Limitation Law, the Diebu Community retained the services of a firm of Estate Surveyors and Valuers to quantity in monetary terms the compensation payable annually to the Diebu Community for the 2nd set of Defendants??? use of the said Obiama land for the years 2007 to 2011. The said Estate Surveyors and Valuers prepared their report after visiting and inspecting the said Obiama land. The breakdown of the compensation payable is as follows:-
(i) 2007 – – N1,143,379,193:00
(ii) 2008 – – N1,140,677,002:00
(iii) 2009 – – N1,137,857,325:00
(iv) 2010 – – 
N1,135,155,134:00

…………………….C…………………….


(v) 2011 – – N977,417,679:00
TOTAL – – – N5,534,486,333:80 (sic). The Claimant shall found on the said Report.
9: Despite the said decision of the said Hon. Commissioner, the 2nd set of Defendants has refused to pay compensation to the Diebu Community for the use of the said Obiama land neither have the Defendants recognized Diebu Community as a joint owner of the said Obiama land.”

The Claimants then gave particulars of the exemplary damages in paragraph 20 of their Amended Statement of Claim before narrating their claims as I quoted above.
In their pleadings as contained in their Amended Statement of Defence and Counter Claim the 1st set of Defendants denied the facts pleaded by the Claimants in their Amended Statement of Claim seriatim. The 1st set of Defendants pleaded how the land in dispute which they called Obiama Land or Bush lying and situate at a point down Asaraba bush up to Igbokoroma Creek in Ogbia Local Government Area Bayelsa State was founded by their progenitor by name Ogbom. In paragraph 7 of their Amended Statement of Defence and Counter Claim, the 1st set of Defendants explained the custom and traditions of the people of Ogbia Land in Ogbia Local Government Area Bayelsa State to which the 1st set of Defendants Epebu is an intergral part as follows: That a person;
(i): Who first clear any virgin land or bush and settle thereon and use the land for farming, fishing, canoe carving, lumbering or any other activity is the founder of such land or bush and whenever he dies his offsprings inherit such land
(ii) Any person who by war conquer any other community to take over the land of such community becomes the owner of such land and if he dies the land is inherited by his offsprings.
(iii) If any stranger to Ogbia land is granted land to settle by the indigenes of a community that host him and he is of good behavior he controls such land and if he dies his offsprings inherit such land.
8: It is by the first method state above that is by first clearing and using that Ogbom founded Obiama land or bush according to the custom and tradition of Ogbia people of Bayelsa State.”

The 1st set of Defendants then gave a detailed version of the history of the land from their ancestor Ogbom to them in paragraphs 14 to 15 they pleaded thus: –
14: The Claimants in the case know that Epebu Community are the bonafide owners of Ogbiama bush but they are not joint owners of the land with Epebu people because they and the 1st set of Defendants do not share a common ancestor nor are the Claimants descendants of Ogbom the founder of Obiama bush
15: The people of Epebu Community enjoy exclusive ownership and possession of Ogbiama land and the 2nd set of Defendant does not have any oil well or any other facility in Obiama bush as the oil wells of the 2nd set Defendant’s Prigbene South East A location, Pirigbene B Deep location and Prigbene South East A Flowline are located in other bushes of Epetu Community.”

That the 2nd set of Defendant first came to Epebu Community in 1964 prospecting for oil and gas. That the Epebu Community has been exercising ownership of the land in dispute upon which the 2nd set of Defendant is located without challenge from any quarters until 1995 when the Okodi Community lay claim to the land in dispute. The matter was referred to the Rivers State Petroleum and Pollution Bureau, Governor’s Office Port Harcourt which produced a report on 24/12/1995 in favour of the 1st set of respondents. Thereafter there were several claims and Court cases with various communities that were not successful in blocking the 1st set of Defendants from enjoying their lucrative Annual Land Rentals from the 2nd set of Defendant.
Issues having been joined the matter went to trial. During trial the Claimants called four witnesses and tendered eight documents in evidence which were marked as exhibits. The 1st set of Defendants called three witnesses and tendered four exhibits while the 2nd set of Defendant called one witness but tendered no exhibit. (see pages 557 to 590 of the records for the evidence of Claimants witnesses and pages 590 to 600 of the records for the evidence of Defendants witnesses). Written addresses were filed, exchanged and adopted by learned counsel to the parties. On 2nd June, 2014, the learned trial Judge delivered his judgment. (see pages 605 to 621 of the record of appeal).

…………………….D…………………….

The learned trial Judge canvassed three issues for determination as follows: –
(1) Is this case statute barred?
(2) Has the Claimant proved their joint ownership with the 1st Defendant of the land in dispute?
(3) Has the 1st Defendants proved their Counter-Claim?
Learned trial Judge commenced his assessment and evaluation of evidence in respect to issue 1 and reached a decision as follows: –
Flowing from the above therefore the cause of action in this case is Statute Barred and this Court lacks the jurisdiction to entertain this suit. This Court cannot therefore go into the other issues raised in this case. Accordingly this case is struck out.”
This decision of the trial Court aggrieved the Claimants so they filed a Notice of Appeal containing three grounds of appeal dated 23rd September, 2015, vide an Order of this Court issued on 15th September, 2015 extending time to the appellants to file their Notice of Appeal. (pages 644 to 645 of the Records). The Record of Appeal was compiled and transmitted to this Court on 21st December, 2015. The Appellants Brief of Argument dated 1st February 2016 and filed on 2nd February 2016 was settled by Samuel Brisibe Esq., wherein he formulated one issue for determination as follows: –
Whether the lower Court was right when it held that the Suit was statute-barred and consequently struck out same? (Grounds 1, 2 and 3 of the grounds of appeal)
That 1st set of Respondents Brief of Argument was filed by Olu Ojujoh Esq., on 5th June, 2017 but deemed as properly filed and served on 18th January, 2018. Learned counsel also formulated a sole issue for determination as follows: –
Whether the lower Court was right when it held that the suit was statute barred and consequently struck out same

Justin O. Igiebor Esq.,of counsel to the 2nd set of Respondent filed his Brief of Argument on 15th May, 2017, it was also deemed by this Court on 18th January, 2018. Learned counsel also formulated a single issue for determination as follows: –
Whether the action is statute-barred by reason of the Limitation Laws of Bayelsa State, 2006.”
It is obvious that all the issues as formulated by learned counsel to the parties are the same though couched differently.
I read through the submission by learned counsel to the Appellants and was taken aback by submissions in paragraph 4.10 to 4.13 of the brief of argument. That the 1st set of Defendants filed a Notice of Preliminary Objection to the hearing of the suit before the lower Court is obvious because I noted the said Notice of Preliminary Objection on pages 173 – 178 of the record of appeal. However, I did not pay close attention to it on the assumption that it was not heard by the trial Court. The 1st set of Defendants were objecting to the hearing of the Suit No. OHC/12/2011 for reasons that the lower Court lacks the jurisdiction to hear and determine the issues between the parties on the following grounds: –
The claim of the Claimants is statute barred under Section 1 of the Limitation Law of Bayelsa State 2006, the subject matter or cause of action in this case having arose more than Ten (10) years before the filing of the Writ of Summons.
And pray for an Order dismissing the case for want of jurisdiction.”

A written address in support of the notice of preliminary objection is on pages 175 to 177 of the record of appeal. The appellants as claimants filed a Reply to 1st set of Defendants Preliminary Objection on pages 184 – 190 of the record of appeal. Those are the only processes filed in respect to the Notice of Preliminary Objection contained in the record of appeal.
The submission by learned counsel to the Appellants in their brief of argument revealed that the lower Court heard the parties on the said notice of preliminary objection and even delivered a Ruling on 16th July, 2012 wherein it struck out the said Notice of Preliminary Objection on the basis that the 1st set of Defendants failed to show how the action was statute barred. That the 1st set of Defendants were dissatisfied with this Ruling by the lower Court so they filed an interlocutory appeal before this Court. I noted that the Notice of Appeal is contained in the record of appeal on pages 311 to 315 of the record of appeal. Unfortunately, the proceedings in respect of the preliminary objection and more importantly the Ruling delivered by the lower Court in respect thereof are not contained in the record of appeal. Upon considering the sole issue canvassed by the parties it is imperative that the Ruling delivered by the trial Court in respect to which an

…………………….E…………………….

interlocutory appeal was filed must be in the record of appeal compiled and transmitted to this Court.
I stated above that the Statement of Defence filed by the 2nd set of Respondent which was alluded to in the judgment of the learned trial Judge on page 608 of the record of appeal is not included in the record of appeal. The learned trial Judge had said:-
On the 29th of February, 2012, the 2nd set of Defendant filed a Statement of Defence of ten paragraphs.
In my efforts to hear and determine this appeal on the merit, I said I will rely on the 1st set of Defendants Statement of Defence and Counter-Claim and the submission by learned counsel to the 2nd set of Respondent in its brief of argument to do justice to this appeal. But, alas, that is no longer possible in view of the absence of the Ruling delivered by the trial Court on 16th July, 2012 in respect to the 1st Respondents Notice of Preliminary Objection in the record of appeal. The record of appeal compiled and transmitted to this Court on 21st December, 2015 is incomplete, and thus incompetent.
The law is trite that an incomplete record of appeal divest this Court of the vires to hear the appeal as it will occasion a miscarriage of justice. In MUTUAL LIFE & GENERAL INSURANCE V. KODI IHEME (2010) LPELR 24698 (CA) this Court per SAULAWA JCA on pages 9 – 10 paragraphs C – D held as follows:-
Thus, in the absence of the above vital documents, the record of appeal is for all intents and purposes, grossly incomplete. And it’s a trite and fundamental principle of law, that the Court of Appeal is devoid of jurisdictional competence to hear an appeal base on an incomplete record of appeal. It is indeed a well settled law, that an appeal from the lower Court shall be determined by way of a rehearing. As such, the Court has an onerous duty to rehear fully and accord a second consideration to such aspects of the entire record of appeal, comprising the lower Court’s proceedings and evidence adduced thereat, to such an extent as the grounds of appeal demand. Most instructively, in the case of NWANA V. FCDA (Supra) at page 78 paragraphs F – H, it was aptly held by the Supreme Court, per Chukwuma-Eneh, JSC that: It is wrong for the Court of Appeal to base its decision in a case in an incomplete record transmitted to it without the vital documentary exhibits and without having the privilege of seeing the documents and to base its decision on speculation. Where the Court of Appeal makes pronouncements affecting the rights of the parties without the help of the material documentary evidence, the decision would occasion a miscarriage of justice.”
Learned counsel to the appellants is duty bound to ensure that the record of appeal is meticulously compiled and transmitted to this Court. He ought to have ensured that during settlement of records all relevant documents were included in the record failure of which now renders the record of appeal incompetent and consequently delay the hearing of this appeal. See PATRICK MICHAEL & ORS V. BANK OF THE NORTH (2015) LPELR 24690 (SC) at Pg. 59 -60 paragraphs B – A per AKAAHS JSC.
In EMEKA NWANA V. FEDERAL CAPITAL DEVELOPMENT AUTHORITY (2007) LPELR  2101 (SC) the Supreme Court held on page 17 paragraphs A D per CHUKWUMA-ENEH JSC thus: –
.. It is also conclusive in this case of the proposition that the lower Court has based its decision on an incomplete record as transmitted to it, that is, without the vital documentary exhibits to contend in the appeal. The lower Court is therefore wrong to have decided this case without having the privilege of seeing these documents i.e. the exhibits and to have based its decision on speculation, see: Panalpina V. Wariboko (Supra); Oparaji V. Ohanu (Supra); and Abacha V. Fawehinmi (Supra). This is so as here where the lower Court has made serious pronouncements affecting the rights of the parties without the help of material documentary evidence as per Exhibits A to I. There can be no doubt that the decision has occasioned a miscarriage of justice. See Udeze V. Chibede (1990) 1 NWLR {Pt. 125} 141.”
Upon considering the decision of this Court and the Supreme Court, it is obvious that since the record of appeal is not complete then this appeal is incompetent. In the circumstances this appeal No. CA/PH/509/2015 is hereby struck out. There shall be no order as to cost.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother Sanga JCA. I fully agree that this Court lacks jurisdiction to hear and determine an appeal in the absence of a complete record of appeal. Failure of an Appellant to compile and transmit a full record of appeal as stipulated under Order 8 of the Court of Appeal Rules, 2016 is fatal to the determination of that appeal. This appeal ought to be struck out and it is accordingly struck out by me. I abide by all the other consequential orders in the lead judgment, including the order on costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, BITRUS GYARAZAMA SANGA JCA gave me opportunity of reading before now the judgment just delivered. I agree with the reasoning and conclusion therein. The appeal is struck out by me for being incompetent. No order as to costs.

Appearances

S. Birisibe, Esq.-For Appellants

AND

W. Zinake, Esq. -for 1st – 6th Respondents
J. O. Igiebor, Esq. -for 7th Respondent For RespondentsCOMMUNAL OWNERSHIPLEASES & TENANCYOWNERSHIP & POSSESSION

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