Chief Walter Akpan & Ors. V. Chief Edo Ekong Umoh (Deceased) & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This appeal is from the judgment of the Court of Appeal (Enugu Division) given on the 30th day of June 1987 wherein the appeal of the Appellants to that Court was dismissed.

The Appellants are Plaintiffs in Suit No. HEK/6/75 and they sued the Defendants for a declaration of title to a piece of land known as Afaha Ubium land situate in Eket Division, one thousand four hundred Naira (N1,400.00) damages for trespass allegedly committed by the Respondents, as Defendants in that suit, in December 1966 and a perpetual injunction restraining the latter, their people etc from committing further acts of trespass on the said land. The Respondents on their part also instituted suit No. HEK/10/75 in the District Court Grade A against the Appellants claiming also a declaration that they “are the titular owners” of the piece or parcel of land set out, described and otherwise delineated in their plan ESA/656(LD) drawn by Mr. E.S. Akpan and dated 5th of July 1974, twenty thousand Naira (N20,000.00) special and general damages for trespass allegedly committed by the Appellants and perpetual injunction. I must observe that the suit numbers were not the original suit numbers of these actions but were given these numbers on the two actions coming before the Eket Judicial Division of the High Court of the now defunct South Eastern State or Nigeria. The Respondents, action in the District Court Grade A had earlier been transferred to the High Court.

Pleadings were ordered, filed and exchanged in respect of each case. On the application of the Appellants, as Defendants in suit No. HEK/10/75, the two suits were by order of the trial High Court consolidated for hearing and determination with the Appellants becoming Plaintiffs and the Respondents becoming the Defendants. In paragraphs 8 – 10 and 13 of the affidavit in support of the Appellants application for consolidation the 3rd Appellant Okon Uko Ekpe had deposed as hereunder:

“8. That the subject matter of the two suits is the same piece or parcel of land.

9. That the parties in the above suit No. HEK/10/75 are the same as the parties in Suit No. HEK/6/75.
10. That both parties in the two suits sue or are sued in the same right, as representing themselves and their respective village communities.”
11. That for a fair, just and speedy determination of the rights of the parties hereto suits No. HEK/8/75 AND HEK/10/75 should be consolidated.”

The trial of the consolidated suits came before Ndoma-Egba J. (as he then was) and after protracted trial the learned trial Judge on 23rd September, 1982 dismissed the Appellants’ case, that is, HEK/6/75 and found in favour of the Respondents on their claims in suit HEK/10/75 and adjudged as follows:

“In view of the foregoing, I declare that the parcels of land known and called Edissong, Owok Otuno, Esa Ikot Ekpo and Atarut shown in survey plans filed by the defendants in this consolidated case which are on record as Exhibits D and E, constitute the property of the defendants, the people of Nung Oku Ekanem in the former Eket Local Government Area.

The Plaintiffs (in this consolidated case), the people of Afaha Ubium, did commit acts of trespass and interfered with the said parcels of land. Edissog, Owok Otuno, Esa Ikot Ekpo, all of which were in the lawful possession of the defendants at the time averred by the defendants in this consolidated case and also find that the Plaintiffs did interfere with the enjoyment of the defendants of the said parcels of land as averred by the defendants. The Plaintiffs in this consolidated case shall pay to the defendants the sum of N2,000.00 damages for the trespass aforesaid. The claim for special damages was not specifically proved and is therefore rejected.

The Plaintiffs by themselves, their servants are hereby restrained from any further interference with the defendants land as hereby declared.”

It was against that judgment that the Appellants unsuccessfully appealed to the Court of Appeal. They have now further appealed to this Court, with leave of the Court below, on seven original and one additional grounds of appeal.

The parties filed and exchanged their respective briefs of argument and with leave of this Court, amended same. In their amended Brief of Argument the Appellants have set out 3 issues for determination covering grounds 2, 3, 4, 5, 6, 8 and 9 at the oral hearing of the appeal the learned counsel abandoned grounds 1 & 7 which were accordingly struck out. The 3 issues set out in the Appellants brief are as follows:-

“1. Whether the Court of appeal was right in upholding the order for consolidation of the suits made by the trial Court when on the evidence the identities of the land in dispute in the various suits were not proved to be identical (Ground 4).

2. Did the Court of Appeal properly determine the issue of inordinate delay at the trial and the consequent miscarriage of justice raised before it (Ground 8).
3. Whether the Respondents adduced sufficient credible evidence to entitle them to judgment for title, damages for trespass and injunction. (Grounds 2, 3, 5, 6 and 9).

The formulation of these issues was criticized by the Respondents in their own (Respondents’) brief and reformulated same. The three issues as formulated are as hereunder:

“1. Whether the Court of Appeal was right not to have reversed the order of the learned trial judge consolidating the two suits.

2. Did the Court of Appeal properly determine the issue of inordinate delay at the trial and the consequent miscarriage of justice raised before it and if it did not, whether the Appellants have suffered a miscarriage of justice thereby to warrant a reversal of the decisions of the decisions of the lower courts
3. Whether the Respondents adduced sufficient credible evidence to entitle them to judgment for title, damages for trespass and injunction.”

I have considered the criticisms and I think they are well placed. Having regard, however, to the wording of ground 4 of the grounds of appeal on which issue 1 is based and the arguments advanced in the Appellants’ brief, I would retain issue 1 as framed by the Appellants but would adopt issue 2 as framed by the Respondents. Both parties agreed on the wording of issue 3. Consequently this appeal will be considered by me on the following questions:

1. Whether the Court of Appeal was right in upholding the order for consolidation of the suits made by the trial Court when on the evidence the identities of the land in dispute in the various suits were not proved to be identical.
2. Did the Court of Appeal properly determine the issue of inordinate delay at the trial and the consequent miscarriage of justice raised before it and if it did not whether the Appellants have suffered a miscarriage of justice thereby to warrant a reversal of the decisions of the lower counts
3. Whether the Respondents adduced sufficient credible evidence to entitle them to judgment for title, damages for trespass and injunction.

Question I:

As earlier mentioned in this judgment, the application for consolidation was made by the Appellants who claimed in an affidavit by one of them that the subject matter of the two suits “is the same piece or parcel of land” and that the parties in the two suits are the same who sued in representative capacities. They now complain, after losing, that the trial judge should have revoked the order for consolidation and heard the suits separately. Their reason for this contention is that the identities of the lands involved in the two cases are not the same.

I think this argument is puerile. Pleadings had been completed and plans filed in the two suits when they averred in their affidavit that-

“8. That the subject matter of the two suits is the same piece or parcel of land.”(Italics is mine for emphasis)

In addition, the 3rd Appellant as PW1, admitted that the subject matter in the two suits are the same. He testified in cross examination thus:

“I did not file a plan with the statement of Defence in Suit No. HEK/10/75 because Suit C/1/67 (i.e. HEK/4/75) refers to the same subject matter in dispute.” (words in brackets are mine)

To further questions, he answered:

We did not file a new plan in HEK/10/75. I examined the plan. The area in dispute is not in issue.” (italics is mine)

Again he said:

“I told the Court that I made one plan in connection with this case, I did not bother to make another plan because it was in the same piece of land which was the cause of action in both suits.”

Appellants’ learned counsel in his final address at the trial submitted as follows:

“Says the area in dispute had been identified by parties. Says the disputed land is not in issue although it is not the whole land area shown in Exhibit B, D and E. Refers to Exhibit B, the area verged green. Submits that the plaintiffs, are claiming a portion of land described ‘Afaha Ubium land’, one portion of which is called Ndon Ikot Nte’. The other portion is Owok Udu. Submits that there is sufficient evidence by the PW1 as to the area in dispute.”

I cannot, in the light of all these, see how the Appellants can now argue that the lands in dispute in the two suits are not identical. It has not been shown that the trial judge, at any stage of the trial, expressed satisfaction that justice would best be served by taking the suits separately. Nor was he ever invited to so hold. On the contrary, the consolidated suits were fought throughout by the parties on the premise that the parties and subject matter were the same in both suits. I do not see how the authorities of Obiekweife & Ors. v Ununuma & Anor. (1957) SCNLR 331; (1957) 2 FSC 70; Attah & Ors. v. Nnacho & Ors. (1965) NMLR 28 and Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) 505, 537 cited by learned counsel for the Appellants are of any assistance to them as the identity of the land in dispute was never an issue between the parties at the trial.

I resolve Question 1 against the Appellants.

Question 2:

Trial in this matter commenced on 26/5/77 when the 1st witness for the Appellants (as Plaintiffs) stated to give evidence. The first six witnesses testified between 26/5/77 ands 29/8/78 when further hearing was adjourned sine die for undisclosed reason or reasons. Trial resumed before the same judge on 14/3/79 and on 26/7/79 Appellants closed their case. Defence opened on 8/8/79 and concluded on 26/2/80. Learned counsel for the parties addressed the Court between 17/6/80 and 23/6/82 when the case was adjourned for judgment. Judgment was delivered on 23/9/82.

It was on the above facts that the Appellants in their appeal to the court below raised the following ground of appeal, among others:

“The judgment of the trial court is wholly against the weight of evidence and in particular the learned trial judge owing to the inordinate delay and/or lapse of time between the time some of the witnesses testified, especially witnesses for the Appellants, and the completion of evidence and delivery of judgment had become a complete stranger to the facts of the case and was not in a position to properly evaluate the evidence or form a proper view of the credibility of the witnesses, and have lost much of the advantage which he may otherwise be supposed to have derived from seeing and hearing the witnesses and this consequently occasioned a miscarriage of justice.

The particulars are omitted in the Appellants’ Brief, they raised, among the six questions formulated, the following question:

“6. Whether the long delay in the hearing of the case, long intervals of adjournments and address of counsel had affected the judge’s proper appraisal and evaluation of evidence and the judgment as a whole.”

In its judgment, the Court below, per Ogundere J.C.A. considered the facts in the light of Section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979 and came to the conclusion that:

”In this case the final addresses ended on 23/6/82, the three calendar months for the appeal (sic) therefore, ends on 23/9/82 the day the judgment was delivered, that is 24/6/82 to 24/9/82 less one day, 23/9/82. It is, therefore, within the prescribed time and valid.”

The Appellants have now complained in this Court that the Court below misconceived their complaint about inordinate delay and therefore, it failed to properly determine the complaint. I think this complaint is well taken. The complaint before the Court below and on which argument was addressed was not about the breach of section 258(1) of the Constitution but about inordinate delay between the commencement of trial in May 1977 and its conclusion by delivery of judgment in September 1982. The Respondents concede as much but contend that the delay notwithstanding; there was no miscarriage of justice. They argue further that in the circumstances of the case, there was no inordinate delay.

I have given careful consideration to the record and the submissions of learned counsel for the parties both in the Briefs and in oral arguments, There is no doubt that there was a long delay in the trial in the High Court. This delay was partly due to the length of the evidence of some of the witnesses and the long opening and closing addresses of learned counsel for the parties. The parties also contributed to the delay by their application for adjournment. There is no explanation for the adjournment sine die granted by the trial court at a stage in the proceedings even though trial resumed six months later.

Delay perse, however, does not lead to a judgment being vitiated; the delay must occasion a miscarriage of justice to result in such a conclusion. This point was dealt with at length by this Court in a recent case – Chief Osigwe Egbo & Ors. v. Chief Titus Agbara & Ors. (1997) 1 NWLR (Pt.481) 293 at p. 316 B & E- F where Iguh, J.S.C. observed:

“For the complaint to succeed, it has to be further established that the delay occasioned a miscarriage of justice in that the trial judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay.”

After quoting from the judgment of Idigbe J.S.C, in Chief Akpor v. Iguoriguo & Ors. (1978) 2 SC. 115 at p. 128. Iguh J.S.C. went on to say:

“It is, therefore, not in every case where inordinate delay is established that the appellate court must necessarily set aside the decision of the trial court. An appellant, to succeed, must go further to show, from the record of proceedings, that the trial Judge had lost his impressions of the trial or had not taken a proper advantage of having seen or heard the witnesses testify as a result of the delay complained of.”

Adio J.S.C. in his own judgment in the case, observed at pages 320-321 of the report:

“On the question whether there was prolonged or inordinate delay in the hearing and determination of the case and, if so, whether it vitiated the trial, the legal-effect depends on the circumstances of each particular case. For example, the trial will be vitiated if the learned trial Judge is no longer in a position to properly articulate the evidence adduced before him and make full use of his advantage in having seen and observed the demeanor and the credibility of the witnesses who testified before him. If that is the case, then the prolonged or undue delay is capable of occasioning a miscarriage of justice and will vitiate the trial. See Awobiyi & Sons v Igbalaiye & Bros. (1965) All NLR 163. It will be otherwise if the memory of the learned trial Judge has not been blurred or in anyway been adversely affected and no credibility of the witnesses was involved. In short, a party raising as a ground for attacking the findings of facts of the trial court on the ground that there was a prolonged or undue delay in the trial of the case must show the specific finding or findings of fact which could be faulted as a result of the delay. See Ariori v. Elemo (1983) 1 SCNLR 1; and Chukwu v. the State (1992) 1 NWLR (Pt.217) 255.”

In the case on hand, Appellants have not shown that the learned trial Judge erred in any way except as to his numbering of witnesses. The learned trial Judge numbered PW7 as PW8. He realised this error and corrected it in his judgment. I cannot see how this slip could be said to occasion a miscarriage of justice. The learned trial Judge painstakingly reviewed the evidence of all witnesses that testified before him including the addresses of learned counsel for the parties, he evaluated the evidence in a manner that not even the Appellants have attempted to fault; he made vital findings of fact which have not been impugned before us. I do not in the circumstance see any justification for concluding that he was at no time master of the case before him or that he in any way lost the advantage of having seen or heard the witnesses.

This notwithstanding, I can only repeat here the remarks of my learned brother Iguh J.S.C. in a situation not too dissimilar to the present case. In Chief Osigwe Egbo & Ors. v Chief Titus Agbara & Ors. (supra) at page 315 D-F he said:

“We have on several occasions in the past, also, expressed the disapproval of this Court in the exhibition, on the part of trial courts, of such inordinate and inexcusable delay in the determination of cases once they commence the hearing of evidence in such matters. This is because trial courts must at all times bear in mind that human recollections being what they are, may loose (sic) their strength with the passage of time and that justice delayed is as bad as justice denied and may even, under certain circumstances, be worse. See: Lawal v. Chief Yakubu Dawodu & Anor. (1972) 1 All NLR 270 per Coker J.S.C. The inordinate delay of seven years which this case was subjected to from the commencement of the hearing of evidence in the trial court to the delivery of judgment is, in my view, totally inexcusable, unwarranted, unjustifiable and, if I may say with respect, almost amounted to a reckless action on the part of all concerned. Trial courts are once again admonished in the strongest possible terms against undue and/or inordinate delay in the determination of suits once the actual hearing of such suits has commenced.”

Undue delay there was, no doubt but this has not been shown to have occasioned a miscarriage of justice. I, therefore, resolve Question 2 against the Appellants.

Question 3:

The only point the Appellants held on to is that the identity of the land to which title and injunction were tied was not established by the Respondents. I think Appellants are on a very weak wicket. I have, when dealing with Question 1, shown the various admissions made by P.W.1 and by their counsel to the effect that the identity of the land in dispute was itself not in dispute. In paragraph 4 of their statement of claim in HEK/10/75, Respondents (as plaintiffs) pleaded as hereunder:

“4(a)(i) The Area of land in issue in the above Suit (to be referred to hereinafter as the Area of land simply) is set out described and/or properly delineated in the Plan No. ESA/656 made by Mr. E.S. Akpan and dated 5th day of July, 1974, and is the plan verged pink. It is known as and generally called LAND OF NUNG OKU EKANEM or more properly designated NUNG OKU EKANEM VILLAGE LAND simply.

(i) A Certified True Copy of the said Plan No. ESA/656 (LD) is ‘A’ herewith attached to this Statement of Claim as Exhibit ‘A’.”

4(b)(i) A PORTION OFTHE AREA OF LAND verged green in the Plan No. ESA/656(LD) aforesaid has been put into issue by the DEFENDANTS (as Plaintiffs) against the PLAINTIFFS (as Defendants) in the Suit No. C/1/67 on the following particulars of claim, to wit:

i. A Declaration of title to all that piece or parcel of land being part of the Plaintiffs Village – Afaha Ubium, in Eket Division – known as Afaha Ubium land, the area whereof will be particularly delineated in a plan to be made hereafter by the plaintiffs.

ii. 700 damages for trespass in that in and after the month of January. 1966, the defendants and their people, servants, privies and/or agents broke and entered upon the aforesaid land without the leave and consent of the plaintiffs and there did damage.

iii. A perpetual injunction to restrain the defendants, their people, servants, privies and agents from further acts of trespass on the said land.’

(ii) In the said Suit No. C/1/67 an Order was made for pleadings and plans, copies of which said pleadings and plans were duly filed and exchanged between the parties therein; and the land in dispute between the disputants therein in reference to the Plan filed by the Plaintiffs therein was described by them in the following terms, to wit:

”The land in dispute is delineated and shown verged pink on the plan No. UND/11/69 (sic) filed with the Statement of Claim served on the defendants “. Para. 8 of the Statement of Claim ‘Dated at Calabar this 5th day of April, 1973 in the selfsame suit refers’.

(iii) And the said land in dispute referred to in the plan No. UN. D/11/69 (sic) aforesaid and therein verged pink is as described in the Plan No. ESA/656 (LD) dated this 5th day of July, 1974 referred to in Para. 4(a) (i) above and therein verged green.”

In reply, Appellants (as defendants) in the said suit averred thus:

“9. In answer to paragraph 4 (a) (i) of the Statement of Claim the defendants deny that Plan No. ESA/656 LD filed by plaintiffs in this case properly sets out and describes the land in dispute. The land in dispute is not land of Nung Oku Ekanem. It is not Nung Oku Ekanem village land simply as alleged by Plaintiffs. Land in dispute is part of Afaha Ubium land.

10. Paragraph 4 (a) (ii) of the Statement of Claim is not denied, except that plaintiffs in Suit No. C/I/67 never filed plan No. UND/11/69.
11. In answer to paragraph 4 (b) (i) of the Statement of Claim the defendants say that all that area of land shown edged green on plaintiffs’ plan No. ESA/656 LD is part of Afaha Ubium land and is an issue in Suit No. C/1/67.
12. Paragraph 4 (b) (ii) of the Statement of Claim is not denied.
13. In answer to paragraph 4 (b) (iii) of the Statement of Claim the defendants say that their plan No. UND/ 11/67 filed in Suit No. C/1/67 properly describes the land in dispute. Defendants deny filing Plan No. UND/11/69.”

From the pleadings and evidence, therefore, the identity of the land was a non-issue.

The learned trial Judge in entering judgment in favour of the Respondents tied the declaration of title made to “Exhibits D and E”, The Respondents, in paragraph 8 of their statement of claim tied their claim to title to Plan No, ESA/656 (LD) which is Exhibit E. Exhibit D is Respondents’ plan in Suit HEK/4/75 in which they were defendants. The learned trial Judge was, therefore, in error to tie his judgment to Exhibits D and E. But this error, in my respectful view, is a mere slip that can be corrected by this Court. I, therefore, amend the declaration granted to read:

“In view of the foregoing, I declare that the parcels of land known and called Edissong, Owok Otuno, Esa Ikot Ekpo and Atarut shown in survey plan filed by the defendants in suit No. HEK/10/75 which is on record as Exhibit E, constitute the property of the defendants, the people of Nung Oku Ekanem in the former Eket Local Government Area.”

There are concurrent findings of the two Courts below which have not been shown to be perverse. I see no reason to interfere with them. I therefore, resolve Question 3 against the Appellants.

In conclusion, I find no substance in this appeal which is completely bereft of any merit. I unhesitatingly dismiss it with N10,000.00 costs to the Respondents.

SC.98/1990