Olum Ogba & Ors. V. Israel J. Onwuzo & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

AKINTAN, J.S.C.

The present respondents were the plaintiffs while the present appellants were the defendants in this action which was instituted at the Ahoada Judicial Division of the High Court of Rivers State. The plaintiffs sued in a representative capacity and it was suit No. AHC/49/82. The plaintiff’s claim as set out in paragraph 22 of the amended statement of claim, was for a declaration of customary right of occupancy to the parcel of land known as Eli Agba Osimini lying and being at Agba, Ndele in Ikwerre district of Kelga in River State; N2,000 damages for trespass; and perpetual injunction restraining the defendants, their servants or agents from further acts of trespass on the said plaintiffs’ land. Pleadings were filed and exchanged and the trial thereafter took place before Okor, J. The parties led evidence in line with their respective pleadings. At the end of the proceedings and addresses of counsel, the learned Judge delivered his reserved judgment on 26/6/89. The learned trial Judge granted the declaration sought by the plaintiffs; awarded N1,000 as damages for trespass and granted the injunction sought, N400 was awarded as costs.

The defendants were not satisfied with the judgment and their appeal against it to the court below was dismissed. The present appeal is from the judgment of the court below. The parties filed their respective brief of argument in this court. The appellants formulated the following two issues as arising for determination in their brief:

1. Whether the judgment of the Court of Appeal should not be set aside as the court in its judgment did not consider at all an issue validly and properly raised before it.
2. Was the Court of Appeal right in its decision that the trial Judge did a dispassionate appraisal of the evidence before coming to the conclusion that the respondents proved their claim and were entitled to judgment without stating any reasons for the said conclusion.”

The respondents also formulated two issues in their brief which are similar to those formulated by the appellants.

The plaintiffs, both in their pleadings and evidence led in support, based their claim on traditional history. Their case was that the land in dispute formed part of the family land of Okparaeri of Agba-Ndele in Ikwere from time immemorial. Okparaeri, the plaintiffs’ ancestor, was the first to settle on the land. He was one of those who migrated from the big Ndele in late 18th Century to settle in Agba. When Okparaeri died, his sons succeeded him on the land and so the land remained in the family since then. Evidence was led regarding a grant of part of the land to the C.M.S. Church and a survey plan of the plaintiffs’ entire land which also shows the disputed portion, was tendered and admitted as exhibit A.

The defendants also based their claim on traditional history. They claimed that the land was discovered by one Ohia of Mgbuelia, a hunter who made the discovery during one of his hunting expeditions. On his return, Ohia informed Ogbolo, who was then the oldest man in Ndele about his discovery. Ogbolo summoned the elders of the four villages that made up Ndele at that time and requested them to nominate persons who would settle on the newly discovered land. Nominations were made from six families from three of the four villages. The defendants’ family, Rumuorlu, was one of the families that made nominations. The land was then shared among the families that made nominations. The defendant’s family occupied the portion of the land given to them after the sharing and they have remained on their portion since then. They claimed that the land in dispute was part of the portion of the land given to their ancestor when the land was shared. They also produced a survey plan of the land showing the disputed land. It was admitted as exhibit B.

The learned trial Judge rejected the traditional history presented by the defendants. He found as a fact that the land was never shared and accepted the evidence presented by the plaintiffs. Judgment was therefore entered for the plaintiffs as afore-mentioned above and the defendants’ appeal to the Court of Appeal against the judgment was dismissed.

The main complaint of the appellants as canvassed in the appellants’ first issue centred on the Court of Appeal’s decision that one of the two issues formulated by the appellants before that court was based on a ground of appeal which could only be sustained if the appellants had prior leave of the court before filing it. The ground of appeal as well as the issue based on it were held to be incompetent and therefore struck out. It is submitted that there was abundant evidence before the court that the required leave of the court was in fact obtained on 18th May, 1993. The lower court is therefore said to have acted erroneously when it refused to consider the appellants’ appeal as raised in that issue which was wrongly struck out. The failure is said to be a gross miscarriage of justice since mere consideration of only one of the two issues formulated by the appellants in the case could not have fully determined the appeal. The Court of Appeal is said to have, by the omission, been patently in breach of the audi alteram partem rule.

It is further argued that generally, where the lapse has, as in the instant case, occasioned a miscarriage of justice, the proper order this court can legitimately make is one sending the matter back to the lower court for rehearing. The decision in FCDA v. Sule (1994) 3 NWLR (Pt. 332) 257, (1994) 3 SCNJ 1 at 11; and Ifeanyi Chukwu (Osondu) Co. Ltd. v. Soleh Boneh (Nig.) Ltd. (2000) 5 NWLR (Pt. 656) 322, (2000) 3 SC 42 at 60 are cited in support. It is further submitted that as there are sufficient materials in the record of appeal entitling this court to resolve the issue omitted by the lower court, this court should therefore embark on resolving the issue without sending the matter back to the lower court since the said issue is a matter of law alone.

In the appellant’s second issue, the lower court was accused of not giving sufficient reasons for coming to the conclusion it reached in the case. Reference is made to the portion of the lead judgment written by Ogebe, JCA where he said:

“I have examined the record of appeal scrupulously and I am satisfied that the trial Judge did a dispassionate appraisal of the evidence and came to the conclusion that the respondents proved their claim and were entitled to judgment.”

The learned Justice of the Court of Appeal is said to have failed to state the reasons for supporting the trial High Court’s finding of fact or for not accepting the reasoning proffered by the appellants in the case. We are therefore urged to set aside the judgment of the lower court for those reasons. It is further submitted that a judgment of a court must amply demonstrate a dispassionate consideration of all the issues properly raised and argued and must reflect the result of such an exercise. In the instant case, the judgment of the court below is said to have failed or neglected to resolve vita or crucial issues raised or give reasons for its decision. It is submitted in reply in the respondents’ brief on issue 1 that the court below was right in striking out the issue No.2 formulated by the appellants in the brief they filed in the court below. This is because the required leave of the court ought to have been sought and obtained before arguing the point in the appellants’ brief. A reference is made to page 10, paragraphs 5.2 of the brief filed by the appellants in the court below and dated 15/2/91, which is as follows:

“As issue number 2 was not taken up in the court below, the appellants hereby give notice of their intention to apply for the leave of the Honourable Court to raise the issue on appeal. The appellants will also further crave the leave of the Honourable Court to amend the memorandum of their notice of appeal by the addition of 3 further grounds of appeal to the grounds of appeal already filed. The original and further grounds of appeal numbered 6, 7 and 8 are subjoined to this brief as a schedule thereto.”

The two issues formulated in the said brief were duly argued in the said brief. But in a motion filed by the appellants on 18/2/91, the appellants prayed the court below for the following reliefs:-