Ocheni Achor V. Anene Adejoh & Anor (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the Judgment of the High Court of Kogi State, Appellate Division, holden at Idah (Coram: Honourable Justices M,A. Medupin and S. S. Idajili) delivered on the 11th day of April, 2002.

The proceedings subject of the instant Appeal started at the Upper Area Court as case No. CV.59/98 on 3rd August, 1998,

The brief fact of the case is that the Appellant (who was the Plaintiff at the trial Court but represented in that Court by Egbunu Adejo who testified as PW5) claimed to be the eldest member of the 1st Respondent’s clan commenced the action claiming: “Declaration that the alienation of those parts of Otobo family land situate at Imere and Ibochi villages by the 1st Defendant/Respondent to the 2nd Defendant/Respondent is null, void and of no effect.”

The 1st Defendant/Respondent is the beaded Chief (Adokpulu Aganapoje) and the head of the Appellant’s family and in that capacity, the recognized head of the family as well as the custodian and controller of all lands belonging to the family.

The 2nd Defendant/Respondent is also a beaded Chief with the title of “Achadu Imere” and in that capacity, the head of Achadu Imere clan as well as custodian and controller of Imere land.

In 1986, a dispute over the ownership of Imere land ensued between the 1st and 2nd Defendants/Respondents as heads of their respective families. The dispute was resolved on 6th May, 1988 in favour of the 2nd Defendant/Respondent in a Customary arbitration before the Attah Igala as evidenced in Exhibit D1.

Thereafter, the 2nd Defendant/Respondent engaged in another round of dispute with Idakwo Ohioga and his group being tenants put on the said land by 1st Defendant/Respondent’s family. Exhibit D3 is the consolidated proceedings of the dispute between the 2nd Defendant/Respondent and the tenants at the Upper Area Court, Idah. The 2nd Defendant/Respondent won the case and Exhibit D4 is the judgment of the Kogi State High Court which slightly varied the Orders in Exhibit D3.

The 1st Defendant/Respondent participated in the proceedings in Exhibit D3 as a witness for the tenants but conceded in that proceedings the existence of Exhibit D1 and admitted that he had left the land for 2nd Defendant/Respondent in compliance with Exhibit D1.

“Exhibit D3 was decided on 7th May, 1991 while Exhibit 04 was decided on 20th March, 1992. The Plaintiff/Appellant commenced the instant case on the 17th February 1993 with a view to nullifying the effect of Exhibits D1, D3 and D4. The trial Court resolved the issues raised against the Plaintiff/Appellant. On Appeal to the High Court, the Court dismissed the Appellant’s Appeal as it saw no reason to disturb the judgment of the trial Court.

The Plaintiff/Appellant dissatisfied with the judgment has appealed to this Court.

Parties have exchanged their Briefs. The Appellant’s Brief of Argument was filed on 14th August 2006 while the Reply Brief was filed on 29th March, 2007. The 2nd Respondent’s Brief was filed on 5th March, 2007. The 1st Respondent was absent and unrepresented though duty served. From the eleven grounds of Appeal contained in the Notice of Appeal and one additional ground of Appeal, four issues are distilled on behalf of the Appellant for the determination of this Appeal and they read as follows:-

“1. Whether the Kogi State High Court was right to hold that the Plaintiff/Appellant has not identified or described Imere land and its boundaries to sufficiently enough entitle him to judgment and or that he merely described the boundary of general Adokpulu Aganapoje’s Otabo land such as entitled the 2nd Defendant/Respondent to judgment in his favour.

2. Whether Exhibits D1, D3 and D4 constituted res judicata or an estoppel by standing by.

Whether the lower Court properly evaluated the evidence and came to the right conclusion that the scales of justice weighed more or tilted in favour of 2nd Respondent.