Ukariwo Obasi & Anor. Vs Eke Onwuka & Ors (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This has been a long tedious and protracted case with some rather unfortunate vicissitudes like the deaths of Mr. Adighije and Mr. Abua who appeared at one time or the other as counsel in the case.

It had its sunny and happier side too. Mr. F.I. Ukattah who settled the pleading has since been elevated to Higher Bench as a High Court Judge in the Imo State Judiciary in 1976 and Mr. Chike Ofodile who appeared at the Appeal court stage became Attorney-General for the Federation in 1984.

These vagaries of fortune contributed in no small measure to the delay in disposing of this case which started by a Writ of Summons issued at Umuahia on the 16th day of August, 1974 thirteen years ago. PAGE| 2 In Suit No. HU/49/74 the present Appellants as Plaintiffs sued the present Respondents as Defendants claiming:

1. Declaration of title to the lots, pieces or parcels of lands known as and called “Abamkpughuru,” “Agboizu,” “Edo,” Ogboakwu” and “Okaiafo” situate and being at Uzo Ndi Okoronta, Amaeke Abiriba within the jurisdiction of this Court – Annual rental value being N10.00. 2. N800.00 being general damages for trespass to the said land. 3. Injunction permanently restraining the defendants, their Servants, agents and/or workmen from further entry upon or interference with the said lands.” Pleadings and plans were ordered, filed and duly exchanged and delivered.

PAGE| 3 From those pleadings it is apparent that the parties based their roots of title mainly on the traditional stories handed down by word of mouth from generation to generation by their ancestors and predecessors in title. As I have always observed, traditional evidence Is nothing but hear-say evidence removed from the hear-say rule and elevated to the status of admissible evidence by the statutory provisions of Section 44 of the Evidence Law Cap. 49 of the laws of Eastern Nigeria applicable to this case. In considering such evidence a trial Court should always remember that there is inevitably bound to be conflicts in the traditional stories of the parties. This does not mean that either side is lying. They may both be honest and truthful yet genuinely mistaken.

That is why it is necessary to test each side’s traditional history by reference to facts and acts done in recent years as established by the Evidence led, in order to see which side ought to be preferred on the basis of probability. See Twimahene Kojo 11 v. Opanin Bonsie (1957) 1 W.L.R. 1223; (1958) W.A.L.R. 257; Olisa Chukura’s Privy Council Judgments 668. In other words, though proof of title by traditional evidence may have its roots in ancient history, it must have its stem and branches in modern history to be conclusive.

This is one reason why Webber, J. delivering the opinion of the Full Court in Ekpo v. Ita XI N.LR. at p.68 observed:- “If then the traditional history is not accepted as proved what are the facts in support of the plaintiff’s claim to a declaration? …There is no evidence of occupation by the plaintiff’s people … In a claim for a decree of declaration of title, the onus is on the plaintiff to prove acts of ownership …. numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners – H the evidence of tradition is inconclusive the case must rest on question of fact.”

In this case the learned Trial Judge Ononuju, J. disbelieved the P.W.1, P.W. 2, and P.W. 3 and held that the plaintiffs failed to Establish their claim by traditional evidence. He then applied the principle in Ekpo v. Ita supra and held at p.91:- “The plaintiffs in this case have not been able to prove acts of ownership of the land in dispute over a sufficient length of time numerous and positive enough to lead to the conclusion that they are entitled to the declaration sought.”

The Plaintiffs’ case was therefore dismissed in its entirety by the trial Court. PAGE| 4 The Plaintiffs having lost in the Court of first instance appealed to the Court of Appeal Enugu Division on the omnibus ground on the facts and on 3 grounds of Error in Law. In the Court of Appeal also, the Plaintiffs brought a motion to adduce or to use their ipissima verba “to receive further evidence in respect of the above-mentioned mater.” By a majority decision of 2 to 1, the Court of Appeal allowed the “further evidence.”

This was an alleged “Arbitration Proceeding” tendered as Ex.FCA1. After considering the arguments of counsel and Ex.FCA1, the Court below unanimously dismissed the Plaintiffs’ appeal as lacking in merit and in substance. This means that the plaintiffs have lost the two Courts below. Still aggrieved and dissatisfied the Plaintiffs have now appealed to the country’s Court of last resort – the Supreme Court of Nigeria. Two grounds of appeal were filed by the plaintiffs. These are copied at pages 235-236 of the Record. During his oral argument in this Court, learned counsel for the plaintiffs/Appellants, Mr. G. A. Graham Douglas, confined himself only to ground one. He did not argue Ground 2 at p. 236 at all. he is therefore deemed to have abandoned that ground, see Shell B.P. v. Abadi (1974) 1 All N.L.R. Part 1 p.1 at p.16. Now Ground 1 of the Plaintiffs/Appellants’ Grounds of Appeal complains:-

“(a) Error in Law The learned Justices of the Court of Appeal erred in law after admitting the document headed “Peaceful Arbitration on Farm Dispute” as Exhibit FCA1 proceeded to consider and evaluate its contents thereof without sending the case back to the lower Court, an exercise that has occasioned a miscarriage of justice. Particulars of Error (i) The appraisal of evidence is that of the trial Court not the Court of Appeal and consideration of Exhibit FCA1 or its contents is that of the lower Court. (ii) Exhibit FCA1 is a document that embodied the arbitration proceedings and was pleaded in paragraph 15 of the Statement of Claim. (iii) Exhibit FCA1 though pleaded and Admitted by the Respondents, evidence was not available at the trial.

PAGE| 5 (iv) Proceedings embodied in Exhibit FCA1 is not a document tainted with illegality in view of the Criminal Code and the Constitution of the Federal Republic of Nigeria, an existing law. (v) Alleged criminality of Exhibit FCA1 relied upon heavily by the Court obviated consideration of issues raised by Appellant in court below.” Particulars (iv) and (v) above are to me unintelligible. Ground 1 above is the only ground argued before this Court.

The submission of Mr. Graham-Douglas was follows:- “Having admitted the document (EX. FCA1) and seeing that it is a document to be admitted, the Court of Appeal should have allowed the appeal and remitted the case to the Court of first instance, the trial court – to Ononuju, J. – to consider the additional evidence.” The above appears to me to be a very novel submission to make. May be because of its novelty learned counsel was unable to cite one solitary authority in support either in his Brief or during his oral argument. The guiding principle here is that to avoid surprise to the opposite party the Plaintiff should plead all the facts and all the documents he intends to rely on at the trial of the case.