Emoghere Onogitere & Ors.v. Echediare Itietie & Anor. (1972) LLJR-SC

Emoghere Onogitere & Ors.v. Echediare Itietie & Anor. (1972)

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G. S. SOWEMIMO, J.S.C. 

The present appellants were the defendants before the High Court, Sapele, in an action instituted against them by the respondents as plaintiffs and in which the plaintiffs’ writ was endorsed for the following claims:-

“1. A declaration that the title in the parcel of land edged blue in the plaintiffs’ plan No. TJM 484 prepared by licensed surveyor Mr. Theophilus John countersigned by the Surveyor-General, Benin City, is vested in the plaintiffs as descendants of Ogun absolutely in accordance with Okpe native law and custom.

2. 300pounds general damages for the trespass committed by the defendants when they entered the land in dispute without plaintiffs consent, removed earth from the land, and destroyed plaintiffs’ crops.
3. An injunction to restrain the defendants and their agents from entering the land in dispute without plaintiffs’ consent.”

Pleadings were filed by the parties and the issues for trial were substantially straightforward. The plaintiffs claimed to have owned the land through one Chief Ogun their own progenitor who was the first to settle on the land when it was virgin bush and to fell trees there. They also stated that accompanying Chief Ogun at the time of his discovery and settlement were Otamodua and Okpedama who also were co-owners of the land with Chief Ogun since, according to the statement of claim, by Okpe native law and custom the founder of a virgin forest not in the occupation of anyone else automatically becomes the absolute owner of such forest.

The defendants joined issue with the plaintiffs on the basis that the land in dispute belonged to them “as members of the Ughwe and Erhiemu families of Effurum.” Both sides gave evidence before the learned trial judge, the plaintiffs claiming to belong to the Okpe Clan and the defendants to the Uwhie Clan. The learned trial judge, Arthur Prest J., believed and accepted the plaintiffs’ case and expressly disbelieved the defence and rejected the case of the defendants.

Before us on appeal in a volley of attacks on the facts but phrased in the pattern of errors of law, a number of points were urged in order to disparage the findings of the learned trial judge. It was argued for instance that the learned trial judge should have believed and preferred the evidence given by the defence witnesses instead of the evidence given by and on behalf of the plaintiffs. We are unable to understand the basis on which this argument was founded for we think that the learned trial judge correctly described the evidence in the following passage of his judgment:-

“I do not believe that Uwe and Iriemu farmed on or owned any land beyond Erere stream, i.e. after Effurun side. I am satisfied that the land in dispute is the property of Ogun, Otamodua and Okpedama and their descendants.

The defendants contended that the plaintiffs’ evidence was conflicting and confused. It is clear from my review of the evidence in the case that this is not so and that it is the defence evidence that is conflicting and confused. The defendants have left me in no doubt that they have all along in this case been trawling for some defence to plaintiffs’ claim. They took all sorts of inane points against plaintiffs’ action and lied as they wished in their bid to make out a defence.”

The learned trial judge came to this conclusion after a full and thorough review of the evidence given by and on behalf of both parties and we think that the present criticisms of his findings by learned counsel for the defendants are not justified.

With respect to the facts found, learned counsel for the defendants further tried to pick out one fact here and another there and to show each one up as not being independently established or as having been severally contradicted by the defence story. This of course is not a proper way of dealing with findings of facts which must rest on the evidence rightly accepted by the trial court after a dispassionate study of the totality of the evidence before the court. In this case, the learned trial judge, as pointed out before, fully considered all the evidence before him and, not without justification, rejected the defence and it has not been shown to us even that the findings he had made were not justified by evidence properly given and admitted before him.

The jurisdiction of the trial court was also attacked before us. The plaintiffs had pleaded that the land in dispute lay within the area of the Sapele Judicial Division. The defendants in their statement of defence denied this and claimed that the land was within the area of the Warri Judicial Division. This point was taken and argued in limine and for reasons stated in the relevant ruling the learned trial judge overruled the defendants’ objection to the jurisdiction of the High Court, Sapele.

In connection with this point, we called the attention of learned counsel for the defendants to the following rules of Order 6 of the Rules of the High Court, applicable in the Mid-West at the relevant time:-

“2. All suits relating to land, or any mortgage or charge thereon, or any other interest therein, or for any injuries thereto, and also all actions relating to personal property, distrained or seized for any cause, shall be commenced and determined in the Judicial Division in which the land is situated, or the distress or seizure took place.

6. In case any suit shall be commenced in any other Judicial Division than that in which it ought to have been commenced, the same may, notwithstanding, be tried in the Judicial Division in which it shall have been so commenced, unless the Court shall otherwise direct, or the defendant shall plead specially in objection to the jurisdiction before or at the time when he is required to state his answer or to plead in such cause.
7. No proceedings which may have been taken previously to such plea in objection shall be in any way affected thereby; but the judge shall order that the cause be transferred to the Judicial Division to which it may be proved to his satisfaction to belong, or, failing such proof, that it be retained and proceed in the court in which it has been commenced, and such order shall not be subject to appeal.”

Thus, it is clear that after their objection had been overruled by the judge the defendants are precluded by the provisions of Order 6, rule 7 from raising the point of jurisdiction again as they have now attempted to do before us. Learned counsel for the defendants eventually conceded that this was the actual position in law and dropped the point.

Again, it was contended on behalf of the defendants that the learned trial judge having found that the designation of the plaintiffs on the writ and subsequent processes were inadequate should have non-suited the claim instead of amending the writ as he did and entering judgment for the plaintiffs on the amended writ. At the end of the case and in the course of his judgment the learned trial judge, having found that the plaintiffs had established their claim and title to the land in question as against the defendants, amended the designation of the plaintiffs in their writ to include the families of Otamodua and Okpedama as set out in the plaintiffs’ statement of claim and given in evidence by the plaintiffs themselves. On this point the learned trial judge observed as follows:-

“Returning to the point taken by learned counsel on how the plaintiff in this action has sued whereas the evidence shows the land belongs to families and descendants of Ogun, Otamodua and Okpedama, my view is that to obviate any controversy as to the persons in whose favour this judgment is given, the title in which the plaintiffs are suing should be amended and invoking the powers of amendment given to this court vide Order VII, rule 10(2) and Order XIV of Western Nigeria High Court (Civil Procedure) Rules, I amend same to read as follows:-

” 1. Echediare Itietie {For themselves and on behalf

of the descendants of Ogun,

2. Idogo Omajuwa Otamodua and Okpedamaof Osubi”}

We are in no doubt that the learned trial judge was clearly entitled so to amend the writ by virtue of Order 14 of the Rules of Court. Learned counsel for the plaintiffs has submitted before us that by virtue of the provisions of Order 7, rule 10 a cause or matter in the court should not fail simply because all parties have not been joined and that it was the duty of the court to take all such steps as may be necessary in the interest of justice to ensure that the merits of the case are fairly and finally determined.

Learned counsel for the plaintiffs also referred us to the decision of this Court in Michael Onayemi v. Olatunji Okunubi and Anor. (1966) N.M.L.R. 50 where the Supreme Court dealt with and decided a point which is not dissimilar to the one now in issue. We think that the contentions of learned counsel for the plaintiffs are well founded. Learned counsel for the defendants challenged the course taken by the learned trial judge and in support of his arguments before us referred to the cases of Onwundu v. Osademe, S.c. 241/67 decided on the 15th January, 1971, Ekpere v. Chief Aforije, S.C. 338/69 decided on the 24th March, 1972 and Dada v. Ogunremi (1967) N.M.L.R. 181.

We have read these cases and we point out that none of them is of any assistance to the defendants for the matters for amendment in those cases and the circumstances in which amendment was either made or sought were entirely different from the case in hand. In the present case it is clear that no amendment to the pleadings was necessary and the evidence in support of the identity of the plaintiffs as amended had already been given in the fashion both by the plaintiffs and the defendants themselves.

We are satisfied that none of the grounds of appeal urged has any substance and we have come to the conclusion that the appeal should be dismissed. The appeal fails and it is dismissed. The appellants will pay the costs of the respondents fixed at 51 guineas.

SC.79/1970