Onuoha Nwokorobia V. Desmond Uchechi Nwogu & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C

This is an appeal against the decision of the Court of Appeal, Port Harcourt Division delivered on 13th of June, 2002. The process that culminated into this appeal before us started at the High Court of Mbaise, Imo State. The appellant in this court was the plaintiff in that court, and the parcel of land which he was claiming against the respondents is called ODONKWU NWOKOROBIA, situate in Umualim Ikenga Eziudo Aboh Mbaise. The plaintiff traced the history of the land in dispute to himself in his statement of claim, and claimed therein as follows:

26 (a) An order of court commanding the defendants to surrender to the Plaintiff all the piece or parcel of land which is part of ODONKWU NWOKOROBIA, and situated in Umualim Ikenga Eziudo in Aboh Mbaise, which piece or parcel of land has been in possession of the defendants, and which the defendants have refused to surrender despite repeated demands.

(b) An injunction perpetually restraining the defendants, servants and or their privies from further entry into the lands so surrendered,

After pleadings were ordered, and the defendants refused/or neglected to file their statement of defence, the plaintiff sought for judgment to be entered in his favour, but the learned trial judge insisted that he would hear oral evidence. Meanwhile the defendants sought and obtained an order of extension of time to file their statement of defence. In their joint statement of defence, the defendants denied most of the claims in the statement of claim, alleging that the land in dispute forms part of a land UKPABI, and not Odonkwu Nwokorobia, and the land was pledged to Iwundu Ashiru by Nwokorobia. According to the defendants the land in dispute was from time immemorial owned and possessed by the Ogide family from whom the defendants inherited the land, Ogide being their ancestor. The land was pledged to Onuoha Nwachukwu Agunkwo of Umuwada Onicha, and the defendants sought to redeem it.

Both sides to the litigation adduced evidence. The learned trial judge appraised the evidence before him, considered the addresses by learned counsel, and at the end of the day found in favour of the plaintiff and gave judgment as follows:-

All aspects of this case and on all issues raised and canvassed by the parties, I am satisfied that the plaintiffs case yielded the degree of proof required in civil cases. In other words he has proved his case on the balance of evidence as being more probable. Accordingly, judgment is hereby entered for the plaintiff in terms of his claim for surrender of the land in dispute shown, demarcated and verged Red in Exhibit A and for (2) perpetual injunction restraining the defendants, their servants or their privies from further entry into the land so surrendered.The defendants were aggrieved by the judgment, and so appealed to the Court of Appeal, which set aside the above judgment. Dissatisfied with the setting aside, the plaintiff appealed to this court on four grounds of appeal. Learned counsel for both sides exchanged briefs of argument, on the appeal, as is the practice in this court. Issues for determination were raised in the briefs of argument. In the appellant’s amended brief of argument are the following issues:-

1. Whether the lower court was right in holding that there was no certainty in the description of the disputed land by the Plaintiff/Respondent/Appellant evidence before the trial court
2. Whether the Plaintiff/Respondent/Appellant has established his ownership of the land by traditional history.

The following issues for determination are in the amended respondents’ brief of argument:-

(1) Whether the Appellant had by credible evidence established the identity/features of the land in dispute.

(2) Whether the Appellant had established ownership over the land in dispute.

The two sets of issues are in essence the same. In arguing issue (1), the learned counsel emphasized the impropriety of the Court of Appeal overturning the findings of fact of the trial court which heard and watched the demeanour of the witnesses along side the veracity of Exhibits and tendered by both parties. Learned counsel submitted that the trial court based its findings on the credibility of the witnesses, and even went further to state clearly that DW3 was unreliable and inconsistent. He placed reliance on the case of Iwuorie Ihanacho & others v. Mathias Chigere & 3 others (2004) 17 NWLR part 901 page 130. Learned counsel reiterated the principle of law that an appellate court will not ordinarily interfere with the Findings of fact of a trial court unless there is ample evidence that the trial court failed to evaluate and make proper findings. In such a situation the appeal court ought to give its reasons, but it did not in the instant case. Reliance was placed on the cases of Chief James Obande Ibori v. Engineer Goodness Agbi & 5 others (2004) 6 NWLR part 78 page 123, and Chief D. M. Okochi & 2 others v. Chief Amukali Animkwoi & 2 ors (2003) 18 NWLR part 851 page 1. The main bone of contention on the identity of the land in dispute was the rejection of the probative value of exhibit “A” by the lower court, when the defendant did not challenge any aspect of it. The case of Omoigie v. Idugienwanye (1985) 2 NWLR part 5 page 41 was referred to.

The learned counsel for the respondents in their amended brief of argument submitted that the identity of the land in dispute was an issue, as is averred in paragraph (4) of the statement of defence, and so are the features of the land, as can be seen in paragraphs (5) and (6) of same. According to learned counsel no features of the land in dispute was given in evidence by the appellant and his witnesses, thus, the appellant failed to discharge the first burden on him at the trial, which was to establish the identity of the land. Reliance was placed in the cases of Odofin v. Ayoola (1984) 11 SC. 72, Baruwa v. Ogunshola 4 WACA 159, Adomba v. Odieze (1990) 1 NWLR part 125, page 165, Udeze v. Chidebe (1990) 1 NWLR part 125 page 141, and Tukuru v. Saki (2005) 3 NWLR part 913 page 544. Learned counsel further submitted that the burden of proving the features on the plan was on the appellant, contrary to the submission of the appellant that it rested on the respondents. He cited the cases of Ojoh v. Kamalu & ors (2005) 12 SCNJ 236, Agbana v. Owah & ors (2004) 5 SCNJ 195, and Nwabuoku & ors v. Onwordi & ors (2006) 5 SCNJ page 359.

At this juncture I will reproduce the relevant averments in the appellant’s statement of claim here below. They read:-

(a) The land part of which is the subject matter of this dispute is generally called “ODONKWU” “NWOKOROBIA”. “NWOKOROBIA” was the father of the Plaintiff. It is situate in Umualim Ikenga Eziudo Aboh Mbaise within jurisdiction. It is a very large area of land. The whole of “ODONKWU” is shown on Plan No. VEN/D234/87 which is attached and filed with this statement of claim. It is hereby marked Exhibit “A”. At the trial, the Plaintiff shall rely on the features shown on the plan as well as on those not shown on the Plan as well as on those not shown in so far as they are relevant.