Okadigbo & Ors v. Anyaegbunam & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

EMMANUEL AKOMAYE AGIM, J.S.C. (Delivering the Lead Judgment)

This appeal No. SC.393/2011 is against the judgment of the Court of Appeal delivered on 28-7-2011 in Appeal No. CA/E/293/2007 affirming the judgment of the High Court of Anambra State at Onitsha delivered on 24-4-2007 in Suit No. 0/71/1958 that determined that the plaintiffs are entitled to the statutory right of occupancy to all the land known as Isi-Agu land in Abo Ogidi.

The notice of appeal was amended on 11-6-2015.

The parties herein have filed, exchanged and adopted the following briefs – amended appellant’s brief, amended respondent’s brief and amended appellant’s reply brief.

The appellant’s amended brief raised the following issues for determination-

1. “Whether in all the circumstances, the admission, use, reliance and acceptance of Exhibits B and C, being the evidence of four witnesses in a previous trial, accorded with the provisions of Section 34(1) of the Evidence Act, and the principle of a fair adjudication under our adversarial system.
   ​2. Whether the conflicts of evidence of the parties respecting the features on the land in dispute were properly

resolved without a visit and or inspection by the trial Judge to the locus in quo, (the land in dispute).

3. Whether the Plaintiffs/Respondents had proved the various acts of ownership and possession to sustain a declaration of title to the land in dispute.
4. Whether the Court of Appeal was right in upholding the finding of the trial Court that the case of the Appellants strengthened the case of the Respondents.
5. Whether this is a proper case for the Supreme Court to interfere with concurrent decisions of the lower Courts.”

The respondents adopted and argued the issues raised for determination in the amended appellants’ brief. This appeal is determined on the basis of the issues raised for determination in the appellants’ brief.

Let me start with issue No. 1 which asks – “Whether in all the circumstances, the admission, use, reliance and acceptance of Exhibits B and C, being the evidence of four witnesses in a previous trial, accorded with the provisions of Section 34(1) of the Evidence Act, and the principle of a fair adjudication under our adversarial system.”
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I have carefully read and considered the arguments in the respective briefs on this issue.

Let me start the determination of the merit of the said arguments by reproducing the part of the judgment of the Court of Appeal complained against under this issue. It reads thusly-

“In Agbakoba Vs INEC & Ors (2008) 12 SCM 159 at 194 the Supreme Court held that:-
“There is by virtue of Section 137 of the Evidence Act in civil case, the principle that the party who asserts certain facts must prove them and once this is done the burden shifts to the other party – It is true, it is not permanent, the burden shifts between the parties and against the party whom judgment would be given if no more evidence is adduced.”

Based on this legal perspective, the PW1 testified as follows:-
(see page 78 of the record).
“I know Mr. Clement Amafeobu Lawrence Nkemakonam, Aro Arubalzeama, Nwankwo Egbniwe. The aforementioned people testified in this case on how my people own this Isiagu land which is in dispute. These witnesses are now dead. We attended the funeral ceremonies of these people”

Under cross examination PW1 had this to say (See page 79 of the record).
“It is true that Nwankwo Egbuniwe has his store and dwelling house opposite Oye OIisa Ogbunike Nwankwo Egbuniwe is a trader. I do not know whether Nwankwo Egbuniwe is alive or dead. At times I hear he died, in another vein I will hear that he is alive. All I know is that I never attended his funeral.”

But in the course of further cross examination as shown in page 94 of the record, PW1 answered as follows:-
“I told the Court that I know Clement Amaifeobu, Lawrence Nkemakonamr Aro Arubalezeama and Nwankwo Egbuniwe. These aforementioned persons are no longer alive as suggested by counsel, but they are all dead.”

The above evidence of PW1 forms the basis for the subsequent tendering and admission in evidence of Exhibit B and C through the PW3.