Oged Ovunwo & Anor V. Iheanyichukwu Woko & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

This appeal is against the decision of the Court of Appeal, Port Harcourt Division (i.e lower court herein) given on 4th July 2005 – in which the lower court has dismissed the plaintiffs/appellants’ ground one of the ground of appeal seeking a declaration that the appellants are entitled to a Customary Right of Occupancy of the land in dispute otherwise known as and called “Okporo Ovunwo”; in other words as condensed under issue one for determination in this appeal. Thus, more or less, it has allowed the appeal albeit in part. On the question of the appellate High Court having failed to consider and pronounce on issue 3 (three) for determination otherwise dealing with the omnibus ground of appeal properly raised before it as issue 2(two) the lower court rightly in my view has ordered as follows: “…a fresh trial of the appeal before another judge of the court below” i.e. the appellate High Court.

Further facts of this matter for purposes of resolving the questions raised in the appeal have encompassed the plaintiffs/appellants’ claim at the Customary Court Rumuogba Obio in Rivers State and it states as follows:

“1. Declaration of title to a piece and parcel of land known as and called ‘Okporo Ovunwo’ situate at the right hand of the road leading from Rumuokoro to Rumuagbaolu village which land is in peaceful possession of the plaintiffs and which the defendants have pinned cement pillars thereon for the purpose of sale which the defendants without leave or license of the plaintiffs entered and cut down for sawing three sticks therein.

2. Perpetual injunction restraining the defendants, their agents, heirs and privies from further acts of trespass into the said ‘Okporo Ovunvwo’ land until the case is finally determined by the court.

In the beginning the trial customary court in its judgment of 11th January, 1993 has ordered the partitioning of the land in dispute between the parties herein. The plaintiffs/appellants being aggrieved by the trial court’s decision have appealed to the appellate High Court. Before it, have been raised three issues for determination including the third issue now in the eye of the storm in this appeal to wit:

Whether the weight of evidence in the case was properly weighed and balanced in accordance with the requirements of the law.”

For no obvious reason, the appellate High Court has failed/neglected to consider and pronounce on the said Issue 3(three) as stated above. It is in regard to this failure, that the appellants in their appeal to the lower court have raised two issues before it (the lower court) against the decision of the appellate High Court as follows:-

“Issue No.1

Whether the lower court was justified in holding that the appellants relied on tradition evidence or history in proof of their claim as opposed to numerous and positive acts of ownership.

Issue No.2

Whether the refusal by the lower court to consider and determine the appellants’ omnibus ground of appeal was right and did the same not constitute a denial of the appellants’ right to fair hearing.”

On its part the lower court in its decision has resolved the above mentioned issue 1 (one against the appellants in favour of the respondents but with regard to issue 2(two) it respectfully has fumbled by concluding as follows:

“Honestly, I cannot surmise why the learned judge of the court below, with the crudity depicted in his judgment, declined to pronounce generally on the complaint in the ombibus ground of appeal. It is a complaint that the judgment is against the weight of evidence. He merely needed to balance the evidence adduced on both sides on an imaginary scale and see where the scale tilts. He needs to bear in mind the decisions of the Supreme Court in Mogaji v. Odofin (1978) 4 S.C. 91 at p.93; Bellow v. Eweka (1981) S.C. 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt.1) 101; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413; Adisa v. Ladokun (1973) 1 All NLR (Pt.2) 18. Refer to section 132 of the Evidence Act. Cap. 112.

Parties have agreed that there is a clear breach of fair hearing since the court below failed to determine the issue touching on the omnibus ground of appeal. And since there is a clear breach of fair hearing, the mandatory order that is warranted is one ordering a fresh trial of the appeal by another judge of the court below. And, I order accordingly.”