Awa Okorie Uchendu & Ors Vs Chief Eyo Ogboni & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

S.O.UWAIFO, JSC

These appeals come from a decision of the Court of Appeal, Enugu Division given on 7 February, 1987. They are in respect of a land dispute between three Villages which, in a primary context, may be regarded as border villages of two States. The Plaintiffs of Biakpan in Akamkpa Division of the erstwhile South Eastern State (now more particularly of the Cross River State) claim the land to be theirs, naming it Okporokum.

The 1st set of defendants of Abia village in Ohafia Division of the erstwhile East Central State (now more particularly of Abia State formerly part of Imo State) call the land Aliedo, while the 2nd set of defendants of Achara Ihie village in Arochukwu Division also now of Abia State call the land Ugwu Ofo. The claim brought on 12 October, 1973 in the High Court, Calabar of now Cross River State was for (a) a declaration that the land known as Okporokum as delineated in the Plaintiffs’ plan No. EAAC/489/LD is part of Biakpan communal land and (b) perpetual injunction to restrain the defendants by themselves, their servants, agents or assigns from alienat­ing, dealing with or doing anything in the said Okporokum inconsistent with the communal ownership of Biakpan of it. The 1st set of defendants were originally the only defendants. As between them and the plaintiffs, issues were joined on the pleadings sometime in March, 1975 and hearing of the case by Koofrey, then Ag. Chief Judge, commenced on 2 July, 1975.

But while the cross-examination of the first of the plaintiffs’ witnesses (p.w.1) was continuing, the court ordered the joinder of the 2nd set of defendants on 6 January 1976 upon an application made by them. There is nothing to show that the writ of summons was accordingly amended, nor was the statement of claim. Even the statement of defence filed by the 2nd set of defendants in March 1976 did not properly reflect them as party to the suit as such. The parties constituting the title of the suit were simply thus:

Chief Eyo Ogboni &, 2 Ors………………. plaintiffs

(for themselves and as representing the people of Biakpan in Akamkpa Division of East Central State)

AND

Chief Awa Aja & 3 Ors. ……………….. Defendants

(for themselves and as representing the people of Achara Ihie Arcohukwu Division of East Central State).

It will be observed, first, that the Plaintiffs were erroneously de­scribed as people of Biakpan in Akamkpa Division of East Central State instead of South Eastern State. Second, the defendants on record as stated in the statement of defence are simply those representing the 1st set of defendants of Abia in Ohafia Division which, in that sense, exclude the 2nd set of defendants themselves. Third, over and above that, those inadequately stated on record as the defendants were erroneously described as people of Achara Ihie in Arochukwu Division whereas they are Abia people of Ohafia Division.

All the above-noted irregularities were not formally corrected. There was indeed throughout no amended writ of summons. As to the other irregularities, it was only in some subsequent motions that the representative capacities of the parties were indicated. Even so, all the parties on record were not specifically named. It would appear also that after the order of joinder was made no notice under Order 4, r, 5(1) of the High Court Rules (Cap. 51) Laws of Cross River State, 1979 was issued. Arguments in respect of some aspect of the defaults in this joinder procedure have been canvassed by the 1st set of defendants (to whom I shall hereafter refer as the 1st set of appellants) on their appeal. The 2nd set of defendants shall be referred to as 2nd set of appellant while the plaintiffs shall be the respondents. On the basis of the issues joined in the circumstances of the irregularities already identified, and the evidence led, the learned Chief Judge gave judgment for the respondents on 26 November 1979.

The 1st set of appellants through their counsel, Mr. Kehinde Sofola, SAN. extensively canvassed at the Court of Appeal the inadequacies in the evidence relied on by the respondents, the unsupported findings of facts by the learned trial Chief Judge and misdirection as to the burden of proof. On the other hand, the 2nd set of appellants repre­sented by Mr. A.N. Anyamene SAN raised issues of some irregularities in the proceedings at the trial court, but more particular attention was drawn to the failure of the respondents to prove tale either by traditional evidence or by acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference of exclusive ownership. The learned trial Chief Judge was criticized for (1) ignoring the clear evidence coming from the respondents that the land belonged jointly to them and the 2nd set of appellants, (2) making perverse findings of fact and (3) giving judg­ment for the respondents before considering the case of the 2nd set of appellants and making findings thereon as faulted in Odofin v. Mogaji (1978) 4 SC. 91.

The Court of Appeal in its judgment of 9th February, 1987 dis­missed the appeals. On appeal against that judgment the 1st set of appellants raised five issues for determination in their brief of argu­ment. But I think at the hearing of the appeal, the main focus was on the pleadings, the evidence and the manner in which the learned trial Chief Judge dealt with them. It was the contention of learned counsel Mr. Molajo who appeared for the 1st set of appellants in this Court in his oral presentation of the appeal that the learned trial Chief Judge failed in his primary duty to properly evaluate the evidence and that in addition to that he made a finding which ought to lead to the dismissal of the respondents’ case: the finding in effect being that one party showed evidence of positive and numerous acts of possession on the land in dispute and the other party showed similar evidence also on the land. It was therefore argued that going by the strength of the evidence and also the nature of the said finding made. the learned trial Chief Judge had no justification to give judgment for the respondents. Consequently, that the Court of Appeal was in error to have affirmed that judgment.

The last two of the five issues raised are made the basis of the argument in question and I think they are indeed sufficient to dispose of the first appeal. They read as follows: