Chief Victor Woluchem And Ors V. Chief Simon Gudi And Ors (1981)

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NNAMANI, J.S.C.

The appellants (who were plaintiffs in the High Court) in 1966 filed a suit in the Port Harcourt Judicial Division of the High Court of Eastern Nigeria against the respondents (defendants in the said High Court) claiming as follows:-

“(1)  A declaration that the Plaintiffs are the owners and are entitled to the possession, occupation and full user of all that piece or parcel of land known as and called “Ozugboko” land situate in the Port Harcourt Province South of a Government acquisition known as the “Trans-Amadi Industrial Layout.”

(2)    500 damages for trespass in that in and during the month of March 1966 and continuing, the defendants broke and entered upon the said Ozugboko land and caused and continue to cause damage on the same by destroying several economic trees thereon and desecrating plaintiffs’91 ancestral juju therein.

(3)    An injunction perpetually restraining the defendants, their agents, servants and/or other representatives from further interference with plaintiffs’ right, title, possession and interest in and over the said “Ozugboko” land.”

Pleadings were ordered, filed and duly delivered. I shall in the course of this judgment set down only those parts of the pleadings as are relevant to the fairly narrow issues to be decided in this appeal. Both parties filed and delivered plans of the land in dispute. At the trial before Allagoa, J., (as he then was), both parties gave evidence and called several witnesses in support of their respective case. The trial Judge made substantial findings of fact mostly in favour of the plaintiffs. In a reserved judgment delivered on 22nd September, 1975, the learned trial Judge gave judgment in favour of the plaintiffs (appellants in this court) as per their claim. The defendants appealed to the Federal Court of Appeal, Enugu Judicial Division. Before that court, 5 grounds of appeal were originally filed but only 2 were argued – a main ground on an issue of law and the general ground. As these 2 grounds substantially dealt with the same issues as are being raised before us in this appeal, I hereby set them down. In ground 1 the appellants in the Federal Court of Appeal (and respondents in this court) complained as follows:-

“1. The learned trial Judge erred in law when after holding as follows:-

‘As was submitted by Mr. Dappa, taking the plaintiffs’ case as it stands alone there is room for saying that their case, having regard to their pleadings and the evidence led in support of their case, will not warrant a declaration made in their favour’ he failed to dismiss the plaintiffs’ claim.

Particulars of Error

(i)     The learned trial Judge failed to consider and decide upon the plaintiffs’ title first, before considering that of the defendants.

(ii)    The plaintiffs can only succeed on the strength (if any) of their own case and not on the weakness of the defendants’.

(iii)   In the premises the plaintiffs’ claim ought to have been dismissed…..

5. Judgment is against the weight of evidence”

On the first ground they relied on two decisions of this court: Aromire v. Awoyemi (1972) 1 All NLR 101 and Godwin Egwuh v. Duro Ogunkehin S.C. 529/1969 decided on 28/2/69. Under the omnibus ground, learned counsel for the appellants in the Federal Court of Appeal, Chief Bayo Kehinde, SAN., who incidentally is their counsel in the appeal in this court, also raised specific points on law and facts. One of these points was his complaint that: