Benignus Duru & Anor V. Jonathan Nwosu (1989)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

This appeal is interesting from several perspectives. First, in substance it is about a case in which two communities are contending about title to a piece of land known as ALA-AMAEKE. Each community claims that the land in dispute formed part of a larger area which had descended to it from its ancestors.

Each also claimed that it gave the other community a portion of this land and neither community claimed the portion on which the other community resided. Second, the case has raised once more the perennial question of how a trial court should approach the resolution, in a judgment, of the issues raised before it in a civil suit.

In this Suit which started from the High Court of the East Central State, Gulu Judicial Division, the plaintiffs (respondents herein) suing as representatives of the Umuokwara Onene Umuezeala Ogboko family sued defendants (appellants herein) in their personal capacities for the following reliefs.

“1. Declaration of Title to that piece or parcel of land known as and called “Ala-Amaeke” of the annual value of N10.00 situate at Umuokwara Onene Umuezeala Ogboko, Orlu Division within the Judicial Division more clearly to be shown and delineated on the Plan to be filed with the Statement of Claim.

2. N100 (One hundred Naira) general damages for trespass into the said land.
3. Perpetual injunction to restrain the defendants their servants and/or agents from further acts of trespass to the land.”

Pleadings were ordered, duly filed and exchanged. Because of the relatively narrow issue raised in this appeal, I do not consider it necessary to set down the pleadings of the parties.

At the trial, both parties gave copious evidence and called witnesses. The learned trial Judge, A.K. Uche, J., of blessed memory, reviewed the evidence before him using such terms “as plaintiffs making out a prima facie case, and the defendants having to discredit that case or rebut it” to which I shall fully advert in this judgment. At the end of the exercise, he sustained the case of the plaintiffs and gave them judgment in terms of all the reliefs claimed. In the Court of Appeal, the main issue, which is not dissimilar to what has also been brought before this court, was stated in paragraph 14 of the appellant’s brief in that court. It read:

“As the main thrust of this appeal relates to the learned Judge’s treatment of the burden of proof and on the onus he placed on the appellants to discredit the respondent’s evidence or lose the case, it is submitted that the evidence tendered by both parties is secondary to this main objection…”

The Court (coram: Olatawura, Aikawa and Ogundere, JJ.C.A) after considering the submissions of learned counsel to the appellants not only upheld the approach taken in his judgment by the learned trial Judge, but refused the plea to order a retrial. In the conclusion to his lead judgment, Olatawura, J.C.A., said at page 179 of the record,

“In my view the learned trial Judge is not saying anything new by virtue of the provisions of Sections 134 to 136 of the Evidence Act, See Osawaru v. Ezeiruka (1978) 6 and 7 SC, 135/145. I will reject the submission of the learned Senior Advocate that the Judge’s mind was co loured and was no longer in a position to evaluate the evidence as a result of his approach. On the burden of proof generally in civil cases See Samuel Adenle v. Michael Oyegbade (1967) N.M.LR. 136; Mosalewa Thomas v. Preston Holder (1946) 12 W.A.C.A. 78; Awomuti v. Salami and Ors. (1978) 3 SC.105/115. Bafunke Johnson and Anor. v. Akinola Maja and Ors. (1951) 13 W.A.C.A. 290; Aquad v. Nzimiro and Anor. 10 W.A.C.A. 73.”

The appeal was dismissed hence the appeal to this court.

As already mentioned, the single issue argued in this court related to the approach of the learned trial Judge to the evidence of the parties and the endorsement by the Court of Appeal of this approach. These issues were clearly stated in paragraph 1 of the issues for determination as set down by appellants. That paragraph reads:

“1. Was the Court of Appeal correct in approving the way the learned trial Judge treated the burden of proof in this case and on the burden he placed on the appellants having regard to the principle laid down in Mogaji and Ors. v. Madam Rabiatu Odofin and Ors. (1978) 4 S.C. 91”

In his own formulation of the issues for determination, learned counsel to the respondents identified the same main issue as issue 2. It was slightly framed in more detailed terms so as to bring out the main bone of contention.