Leonard Okere & Ors. V. Titus Nlem & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C.

The short point for determination in this appeal is whether the Court of Appeal exercised its discretion rightly in refusing the appellants extension of time to appeal to the Court of Appeal against the judgment of the trial court dated 24th June 1985. It is also to be noted that on the day the appeal came up for hearing neither the appellants nor their counsel, nor the respondents nor their counsel appeared. The court having been satisfied that both parties were notified with hearing date, took it that both parties have adopted their briefs which they have already filed. See Order 6 rule 8 (6) of the Supreme Court Rules, 1985.

The appellants who were the plaintiffs in the trial High Court of Owerri Judicial Division of Imo State, filed an action in that court asking for-

“(a) A declaration that the villagers of Umuanyim in Umuekwune town, comprising of the kindreds of the plaintiffs and the defendants are entitled to customary right of occupancy of that piece and parcel of land known as and called “Egbelu” and coloured pink in plan No ASNL/IM/26/LD situate at Umuanyim in Umuekwune in Owerri Local Government Area within Owerri Judicial Division with an annual rent of N10.00.

(b) A declaration that the Defendants have no right to turn the said land coloured pink in Plan No. ASNL/lMI26/LD into an agricultural palm plantation of their own without the consent of the plaintiffs.

After both parties had filed and exchanged pleadings, the case proceeded to trial. Evidence was adduced on both sides, and the learned trial judge in a considered judgment, made the following findings:

1. “From the evidence before me, it is clear that the plaintiffs are not quarrelling with the fact that the 1st defendant is farming on the portion of Egbelu land in dispute. Rather, their case is that by cultivating palm trees on it he has turned it into his exclusive farm land. In other words, they are quarrelling with the act of user and not the right to use the Land in dispute. It is quite clear from the evidence that the whole of Egbelu land is agricultural land. It is, therefore, difficult for me to appreciate how the fact that the 1st defendant has cultivated palm trees on a portion of Egbelu land can raise a real issue in the case.”……………

2.”I am constrained to hold that since from the evidence all the members of Umuanyim family are free to clear or deforest any portion of Egbelu land for purposes of farming, the mere fact thatone of such members had decided to cultivate palm trees on a portion so cleared does not change the character of user which is essentially agricultural.

The evidence called by the plaintiffs on which they asked for the first arm of relief is that the land in dispute was deforested by strangers, and therefore, the defendants cannot lay claim to it. As I said, this appears unrealistic and I cannot order the declaration in the manner it has been framed in the first relief sought for I find as a fact that a member of Umuanyim family who cleared a portion of Egbelu land even though by strangers can rightly lay claim to it. On the preponderance of evidence I am of the view that the defendant’s case is stronger.”……………….

3. “There is no evidence before me that where a member of a family is entitled. as a matter of custom, to farm on the family land he has first to obtain the consent of the rest of the members of the family before he develops a plantation of palm trees on it. In fact, this aspect of the plaintiffs’ relief falls outside the issue before the court, nor was it pleaded that under Umuekwunne customary law that such consent is necessary. The defendants by cultivating palm trees on the land are not alienating or disposing of that portion of the land which remains within the family with the palm plantation thereon. I do not, therefore, see how this again could constitute a real issue for purposes of a declaratory relief…………….
4. “Even if this is a case where the relief sought by the plaintiffs meets the requirements of concrete adversense (sic) the court will have to consider the balance of convenience, the evidence led on both sides, before exercising its discretion to grant a declaration sought. It is abundantly clear from evidence on both sides that several members of Umuanyim family have portions of Egbelu land to which they lay exclusive claim. But ( have no evidence that the 1st defendant has any particular portion other than the land in dispute to which he as a member of the family should equally lay exclusive claim. My view on the whole is that this is not a case where a declaration ought to be made. If the members of the family decided to partition Egbelu land, this is a separate issue. They could go to court for that purpose and ask for the partition of Egbelu land. The court has been told that the 1st defendant has been making use of the land in dispute for purposes of farming for the past 39 years. It is inequitable to grant the declaration sought in the second arm of the plaintiffs’ relief, because the plaintiffs are guilty of laches and secondly. it will serve no useful purpose to simply declare that he has no right to turn the said land in dispute into agricultural plantation. This will not take the plaintiffs anywhere.”

He then finally made the following order-

“…that both parties should go back and make use of Egbelu land as they have been doing before and that this action is misconceived and lacking in substance. The action is hereby accordingly dismissed. No order as to costs.”

A year after the judgment of the trial court, the plaintiffs filed an application in the Court of Appeal for enlargement of time within which to file Notice and Grounds of Appeal to that Court. After some protracted adjournments of the application for over a year, it was argued on 5th November 1987 before S.N. Onu. O. Kolawole and B.A. Omosun, J.J.C.A and ruling was reserved. On January 25th 1988, Onu, J.C.A. delivered the Ruling of the Court (to which both Kolawole and Omosun. JJ.C.A, subscribed) in which the application was refused.

The plaintiffs have now appealed to this Court against the Ruling of the Court of Appeal.

Henceforth both the plaintiffs and the defendants would be referred to in this judgment as the appellants and the respondents respectively.

With the Notice of Appeal, the appellants filed 5 grounds of appeal. Briefs were filed and exchanged by the parties as required by Order 6 rule 5 of the Supreme Court Rules, 1985 (as amended).