Owunari Long-john & Ors. V. Chief Crawford N. Blakk & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The respondents were the plaintiffs before the Port-Harcourt High Court where they claimed against the 1st set of appellants as the defendants for:

1. A declaration that the plaintiffs are entitled to the customary light of occupancy according to Kalabari native law and custom to all the piece or parcel of land known and called Fubara Polo, Akpana Polo and Dokubo-Ekine Polo land situate at Fouchee Bakana-Delga.
2. N400.00 damages for trespass.
3. Injunction restraining the defendants by themselves, their agents and or servants from committing further acts of trespass thereon.

The respondents brought the suit as the representatives of Dokuboye Ekine, Orubioyo Akapana and Pokiye Fubara families of Efoko Bakana. The 2nd set of appellants who are the representatives of the Iboroma family were on their own application later joined to the suit and were described as the 2nd set of defendants.

The parties filed and exchanged pleadings after which the suit was heard by Opene J. (as he then was). On 14/07/86, Opene J. in a reserved judgment granted the claims by the plaintiffs now respondents.

The two sets of defendants were dissatisfied with the judgment. They brought an appeal against it before the Court of Appeal, Port-Harcourt Division (hereinafter referred to as the court below). On 7/12/2000, the court below in its judgment dismissed the appeal and affirmed the judgment of the trial court. Still dissatisfied, the two sets of defendants have come on a further appeal to this court. In their appellants’ brief, the issues for determination in the appeal were formulated thus:

(i) Did the Court of Appeal right (sic) when it failed to rule on the propriety of the order of the trial Judge expunging exhibits 2, 3 and D2 from the record in his judgment

(ii) Whether it was proper for the learned trial Justices of the Court of Appeal to hold that exhibit 2 ought not to have been admitted for its irrelevance

(iii) Is the judgment against the weight of evidence

The respondents in their brief also formulated three issues for determination, which said issues are in substance similar to the appellants’ issues. The respondents raised a preliminary objection to the 3rd ground of appeal from which the appellant distilled the 3rd issue for determination reproduced above. The substance of the objection is that the said ground of appeal, being one of fact or mixed law and fact could not be validly raised without the leave of the court below or this court being first sought and obtained pursuant to section 213(3) of the Constitution of the Federal Republic of Nigeria, 1999.

When the appeal came before us on 12/07/05, Uche Nwokedi, Esq., of counsel for the appellants conceded the objection. He thus agreed that the appellants had not first obtained the leave of the court below or this court before raising the 3rd ground of appeal. This leaves this court with no other option than to strike out appellants’ 3rd ground of appeal and the 3rd issue for determination distilled from it. These are accordingly struck out.

The two issues surviving could be conveniently taken together. It is necessary that I examine briefly the relevant facts leading to the dispute out of which this appeal arose as put across by the parties in their respective pleadings. The plaintiffs based the title, which they asserted by their claim, on traditional history. They pleaded that their great ancestor was one Dokuboye Ekine, the paramount chief of Fouchee. It was stated that Dokuboye Ekine and his chiefs first settled on a temporary site granted them by Chief Willy-Braide (Igbanibo). One Iboroma came to join him and his chiefs on the site. Following a disagreement as to the shrines to be worshipped by the groups at the temporary site, plaintiff ancestor later migrated south of Bakana where he finally settled with his chiefs. The plaintiffs’ ancestor was in possession of the land exercising thereon various acts of ownership. His descendants have since remained thereon. They granted a portion of the land for a church building to St. John’s Christ Army Church. It was pleaded that in February, 1973, the 1st set of defendants with the support and encouragement of the 2nd set of the defendants broke into the land and began the erection of buildings thereon. In reaction, the plaintiffs brought the suit.

The 1st set of defendants in their amended statement of defence denied most of the averments pleaded by the plaintiffs. It was pleaded that the Iboroma family of the 2nd set of defendants in February, 1973 granted to the 1st set of defendants the land in dispute. The defendants claimed that they and not the plaintiffs granted the land on which St. John’s Christ Army Church, Bakana, stood, to the church.

At the trial, the plaintiffs called 6 witnesses whilst the defendants called five. Some documentary exhibits were tendered. These include the following:

1. Exhibit D2 being the High Court proceedings and judgment in suit No. P/3/1957 between Chief Taylor John Iboroma & Ors. and Chief W Braide & Ors.
2. Exhibit 2, a judgment of the Supreme Court in FSC.20/60 between Chief Taylor John Iboroma & Ors. and Chief Samuel W Braide & Ors.
3. Exhibit 3, a plan of land in dispute in suit No. P/3/1957 between Chief Taylor J. Iboroma & 3 Ors. of Bakana and Chief Samuel W. Braide & Ors. of Bakana.

Appellants’ counsel has argued in his written brief that the court below failed to make a decision on an issue raised before it which challenged the propriety of the order made by the trial Judge expunging exhibits D2, 2 and 3 from the record of proceedings in his judgment. Counsel also raised issue as to the correctness of the conclusion of the court below that exhibit 2, being irrelevant evidence ought not have been admitted. Counsel submitted that it was a serious error for a court to have failed to consider an issue submitted to it for adjudication. Counsel relied on Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131; Jamgbedi v. Jamgbedi (1963) 2 SCNLR 311, (1963) NSCC 281- at 1282 Ojogbue & Ors. v. Ajie Nnubia & Ors. (1972) 1 All NLR (Pt. 2) 226 at 232; Chief G.A. Titiloye & Ors. v. Chief Omoniyi Olupo & Ors. (1991) 7 NWLR (Pt. 205) 519 at 529 and Chief Oro & Ors. v. Joseph Falade & Ors. (1995) 5 NWLR (Pt. 396) 385 at 408.