Ezekiel Emenimaya & Ors. V. Okpara Okorji & Anor (1987) LLJR-SC

Ezekiel Emenimaya & Ors. V. Okpara Okorji & Anor (1987)

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This appeal relates to two actions which were consolidated and tried together in the High Court, Ahoada.

The first action, suit No.AHC/4/73 was instituted by the appellants herein as plaintiffs, against the respondents, claiming as follows:

“(a) declaration of title to all that piece or parcel of land situate at Odiemerenyi Village, Ahoada Division, known as and called “OKPUDOR” which will be clearly defined in a plan to be filed in this suit.

(b) N600.00 (Six hundred Naira) as general damages in that in the month of April, 1973 the defendants broke and entered the said land of Plaintiffs to farm thereon by planting cassava and cocoyams.

(c) perpetual injunction restraining the defendants their servants and/or agents or privies from any act of trespass or in any way interfering with the plaintiffs’ use or enjoyment of the said land.”

The second action suit No. AHC/9/75 was instituted by the respondent against the appellants in the same High Court, claiming as follows:-

“1 . A declaration of title to a piece or parcel of land situate at Odiemerenyi village in Ahoada Division known as Ugbo farm land which will be better delineated in a plan to be filed later.

  1. The sum of N200 being general damages against the Defendants their servants and Agents for acts of trespass upon the said land since 1973.
  2. And an injunction restraining the Defendants their servants and Agents from further entry upon the said land.
  3. Annual Rateable value of the land amount to N20.00”

Pleadings were ordered in respect of each suit and they were duly filed and exchanged. On the application of the plaintiffs’ counsel in the first suit, both actions were consolidated on the 16th of March, 1976, and throughout the proceedings in the consolidated actions, the plaintiffs in suit No. AHC/4/73 were referred to as plaintiffs and the defendants in the same suit as defendants.

At the trial both parties gave evidence and called a number of witnesses in support of the averments in their pleadings.

Both parties are from the same village of Odiemerenyi in Ahoada Division belonging to different families. While the plaintiffs are members of Umuewe family of Odiemerenyi village, the defendants belong to the Umuojo family of the same village.

Summarily stated, the plaintiffs’ case was that the land in dispute called “OKPUDOR” – meaning an ancestral home, was originally owned by their ancestor IGWELAZU and that it had always been, from time now out of memory, that of their family. It was also their case that a portion of the land called “Ugbo” was given to the defendants’ ancestors by their ancestors for a specific purpose, and by the terms of the grant, the defendants were not permitted to farm or plant any crops on the land granted to them.

The defendants consistently kept strictly to the terms of the grant until 1963 when, without the plaintiffs’ permission, they entered the said land, destroyed the plaintiffs’ economic trees thereon and started planting cassava and cocoyam trees on the land. The plaintiffs pleaded various acts of ownership over the land in dispute and led evidence in support of their pleadings. The defendants’ case was that the land in dispute, called “Ugbo” was founded by their ancestor OGWU, the son of Onyo, and that it had always been, since time immemorial, in exclusive possession of the family passing from one generation to another until it devolved on the defendants. It was also their case that the land on which the plaintiffs built their houses was in fact given to the plaintiffs’ ancestors by the ancestors of the defendants when the plaintiffs left their original village ABORIKPO to settle with the defendants. Like the plaintiffs, the defendants also pleaded various acts of ownership and called evidence in support of their pleadings.

At the trial both parties gave evidence and called a number of witnesses in support of their respective claims. At the conclusion of the hearing of evidence and addresses of counsel, the learned trial judge reviewed the evidence adduced by the parties and upheld the plaintiffs’ claim. He concluded his judgment as follows:

“Perhaps by far the strongest witness for plaintiffs is Sampson Ako, the oldest man in the defendants’ family and their family head. He confirmed plaintiffs’ story of the granting of part of the land by plaintiffs’ ancestors to their (defendants’) ancestors, and says he himself lives together with defendants on the land so granted them.

He says the persons they buried on the land in dispute were buried there with the permission of plaintiffs.

Defendants have not called any of the persons or churches to whom they alleged they gave land there to testify on their behalf, and I have no difficulty in finding that plaintiffs have proved a better claim to the land than defendants.

I therefore give judgment for plaintiffs for customary right of occupancy of the parcel of land verged red on Plan No. OK/RSD.8/74 prepared by Mr. F.C. Okoli, dated 30th March. 1974 and filed in this action. I also give judgment for plaintiffs in the sum of N300.00 damages for trespass, and a perpetual injunction restraining defendants, their agents and servants from further trespass on the said land.”

The defendants, aggrieved by the decision of the trial court, appealed to the Court of Appeal, Enugu Judicial Division, filing 10 grounds of appeal. At the bearing, however, all the original grounds were abandoned and with the leave of the court, two additional grounds were filed and argued. The two additional grounds, which have nothing to do with the merit of the case, are:-

“1. ERROR IN LAW. That the judgment was a nullity in that, without any order of transfer of the suit, the trial Judge started the hearing of the suit in Ahoada in Ahoada Judicial Division of the Rivers State of Nigeria and concluded it at Port Harcourt in Port Harcourt Judicial Division of the Rivers State.

PARTICULARS OF ERROR: That the land the subject matter of the dispute in the suit is situate at Odiemerenyi Ahoada Division in Ahoada Judicial Division.

(1) That pleadings were ordered at Ahoada on 6th August, 1973.

(2) That on the 19th day of February, 1975, the High Court Ahoada, granted an order of Interim Injunction against the Defendants/Appellants (vide PP. 16-20 of the Record of proceedings) .

(3) That hearing of the case started at Ahoada High Court on Monday 29th March, 1976 (vide p.40 of the Record of Proceedings).

(4) That without any order of transfer, the learned trial Judge who had been transferred from Ahoada to Port Harcourt took the part heard case to Port Harcourt continued hearing there and gave judgment (vide P. 64 of the Record of Proceedings).

(5) That none of the parties had applied to the Chief Judge of the Rivers State for a transfer of the suit and no order of transfer was made.

  1. ERROR IN LAW: That because of the protracted nature of the hearing in this suit, the learned trial judge could not avail himself of the advantages of seeing the witnesses in the witness box.


(1) That judgment in the suit was mainly on facts.

(2) That hearing in the suit started on Monday 29th day of March, 1976 (vide p.40 of the Record of Proceedings).

(3) That the defence closed its case on 20th July, 1978 i.e. more than two years later. (Vide p.81 of the Record of Proceedings).

(4) That the learned trial Judge heard addresses from Counsel on 2nd November, 1978 (vide pp.82-84 of Record of Proceedings).

(5) That judgment was delivered in the matter on 5th November, 1979 i.e. more than one (1) year later.”

The Court of Appeal went into the defendants’ complaints and came to the conclusion that they had merit.

With regard to the complaint in the first additional ground of appeal, the Court of Appeal, as per Olatawura, J.C.A. in the lead judgment said:-

“There is one High Court of Justice in a state but there are for the purposes of administration judicial divisions created for the easy determination and disposition of cases. Judges, depending on the volume of work, are attached to each judicial division. Section 2 of the High Court Law of former Eastern Nigeria, applicable to Rivers State defines “Division” as judicial division of the High Court. A writ wrongly filed in a wrong division can therefore be transferred to the appropriate judicial division. See sections 5 and 6 Order VII of the High Court Rules. What is material in this appeal is the provision of Order VII rule 1 which states:

“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.”

(Italics mine)

Both sides agree that the land in dispute, by whatever name it is called by them; is in Ahoada Judicial Division. See paragraph 1 of the Statement of Claim in Suit No. AHC/4/73 and also paragraph 3 of the Statement of Claim in Suit No. AHC/9/75. As at the time both writs were filed in Ahoada High Court there was strict compliance with Order VII rule 1 of the High Court Rules. Mr. Peters has rightly agreed that a suit is determined when judgment is delivered. Having agreed also that when the matter which started in Ahoada Judicial Division was heard again in Port Harcourt was not in compliance with the said Order VII rule 1, the futility of his later submissions becomes manifest.”

The action of the trial judge in this case on appeal renders the proceedings up to the judgment in Port Harcourt a nullity.

With regard to the complaint in the second ground of appeal with which we are concerned in this appeal, the learned Justice of the Court of Appeal said:-

“The other ground deals with delay in the trial of the case. Mr. Peters agreed that the judgment is based mainly on facts but that the facts in issue were subsequently admitted by the respondents. He submitted that mere delay should not affect positive evidence of ownership. It is the learned counsel’s contention that the appellants would have failed in that there was no identity of land and that no boundary men (sic) was called. For the issue of delay to succeed it must be shown that the delay has affected the assessment of witnesses. O. EKIRI & ORS v. CHIEF CLARIC & ANOR. (1976) 9 & 10 S.C 61/72-4. While it is true the learned trial judge did not in the usual manner resort to whether he believed or did not believe particular witnesses one finds it difficult to conclude by his mere comparison of what each witnesses said without relying on the witnesses to reach his conclusion. The defendants did not admit the facts; they relied on the pleadings. A mere comparison of the case stated by each side without saying positively which version is correct or more reliable is not cured by the general statement made by the learned trial judge that:

“I have no difficulty in finding that the plaintiffs have proved a better claim to the land than the defendants.”

Thus the appeal was allowed, and the judgment of the trial court given in favour of the plaintiffs was set aside, and an order made directing that the case be retried by another judge of the Ahoada Division of the High Court of Rivers State. Phil- Ebosie, JCA. and Aseme, JCA concurred in the lead judgment of Olatawura, J.CA.

Being dissatisfied with the decision of the Court of Appeal, the plaintiffs have further appealed to this Court, and their main complaint is contained in the second ground of appeal which states that “The Court of Appeal misdirected itself in law in setting aside the judgment of the High Court and ordering a new trial when on the facts found by the learned judge the plaintiffs were entitled to judgment.

When the appeal came up for hearing on the 3rd day of March, 1987, after we had heard the appellants’ counsel’s oral submissions in amplification of the brief filed, and without calling upon the respondents’ counsel, we summarily dismissed the appeal, and indicated that we would, today, give our reasons for doing so. I now give those reasons.

Now the respondents’ main complaint in the Court below was that because of the protracted nature of the hearing in the trial court, the learned trial judge could not avail himself of the advantage of seeing and hearing the witnesses who testified before him, and could not, in the circumstances, have come to the right decision. The main submission of the appellants’ counsel in this regard was that the Court of Appeal was in error to have set aside the judgment of the trial court as mere delay in the delivery of a judgment by a trial judge is insufficient to warrant the reversal of such a judgment.

I think at this stage, it is pertinent to state, in some detail, the course taken by the proceedings at the trial which formed the basis of the complaint.

The record shows that after the pleadings had been completed, hearing of the plaintiffs’ case commenced on the 29th March, 1976 when the 1st Plaintiff gave evidence. He concluded his evidence on the 31st of March, 1976. On that same day, the Plaintiffs’ second witness gave evidence, and at the end of the day, the case was adjourned to the 27th April, 1976 for continuation.

The record shows that on the 27th April, the plaintiffs’ 3rd and 4th witnesses gave evidence. The case was then adjourned to the 30th April, 1976 when the evidence of the 5th witness was taken, and at the conclusion of the hearing of that day, the case was further adjourned to the 24th May, 1976 for continuation.

On 24/5/76, the evidence of the 6th, 7th and 8th plaintiffs’ witnesses was taken, and for no apparent reason, the case was given almost three months’ adjournment to the 20th August. 1976. On the 20th August, 1976, the 9th. 10th and 11th plaintiffs’ witnesses gave evidence, and at the end of the day, the case was further adjourned for another two months to the 19th October, 1976 for further hearing. On the 19th October, 1976, the plaintiffs’ 12th witness gave evidence, and on that day the plaintiffs closed their case.

At the close of the plaintiffs’ case on the 19th October, 1976, further hearing was adjourned to February, 1977 but the case could not go on, on that day because, as an endorsement on the record shows, the court was “engaged trying a criminal matter.” It was then adjourned to the 31st March, 1977. Thereafter the case suffered series of adjournments spanning a period of thirteen months from the 31st March, 1977 to 5th April, 1978 when the defendants’ case commenced. The defence called five witnesses and closed their case on the 20th July, 1978. The case was then adjourned to 15th September, 1978 for addresses which did not take place on that day. In fact counsel’s final addresses were delivered on the 2nd November, 1978 – about 4 months after the conclusion of hearing. Thereafter the case was adjourned to 30th November, 1978 for judgment which was eventually delivered on the 5th November, 1979 – more than one year after the conclusion of the case, and three years and seven months from the commencement of the hearing.

It should be noted that in the mean time the 1979 Constitution had come into force. Section 258(1) of which made it compulsory for judgments to be delivered within three months from the conclusion of evidence and final addresses. In this case, however, as final addresses were delivered before the Constitution came into effect on the 1st October, 1979, the provisions of Section 258(1) of the Constitution are inapplicable in this appeal; see Florence Taylor v. The Registered Trustees of Trinity Methodist Church (1986) 4 NWLR (Part 34) 136.

Now, an appellate court will not ordinarily disturb the findings of fact by a trial court relating to credibility of witnesses and evaluation of evidence since these are matters within the knowledge of the trial court on account of having seen and heard the witnesses who gave evidence before it, but where the trial court has held up its judgment for such an unreasonably long period of time, an appellate court will not hesitate, in a proper case, to intervene and when necessary set aside such findings: see Chief Yakubu Kakarah v. Chief Okere lmonikhe (1974) 4 S.C. 151 and Onosiaherhovwe Ekeri & Ors. v. Edo Kimisede& Ors (1976) 9 -10 S.C. 61. In this case, in view of the many long intervals of delay in taking the evidence of the parties and their witnesses, and the long lapse of time between the conclusion of the hearing and the delivery of judgment, can it be seriously contended that the trial judge had not lost all the impressions which the opportunity of a court of trial could afford him A perusal of the judgment in this case clearly shows that the trial judge was unable to make any specific findings on several crucial issues which were in controversy between the parties, and this was no doubt due to the fact that he had completely lost his impression of the case.

In Awobiyi & Sons v. Igbalaiye Brothers (1965) 1 All N.L.R. 163, this Court considered the probable effect of inordinate delay between the hearing of a case and the time of the delivery of judgment by the trial Court. In that case the respondent gave evidence on the 21st September 1961 and the case was then adjourned until the 12th October, 1961 when the appellant gave evidence. Judgment was delivered on the 7th November, 1961. Delivering the judgment of the Court regarding the effect of delay in that case, Brett, J.S.C, at p.166, observed as follows:

” The presumption which the Chief Justice felt justified in making is further weakened by the lapse of time between the 21st September, when Awokoya gave evidence, the 12th October, when the appellant gave evidence, and the 7th November, when judgment was delivered.

During these intervals the magistrate must have had to direct his mind to numerous other cases, and in such circumstances he must be regarded as having lost much of the advantage which he might otherwise be supposed to have derived from seeing and hearing the witnesses, so that an appeal court is in almost as good a position as he is to form an opinion of their reliability.

This ground of appeal is well-founded and if it stood alone the question would be whether we should dismiss the plaintiffs claim or send the case back for retrial so that an express finding might be made by someone who had heard the evidence.”

In this case it is my view that owing to the long interval between the conclusion of evidence and final addresses and the delivery of judgment, the trial judge ought to be regarded as having lost the advantage of seeing and hearing the witnesses who had given evidence before him. In the circumstances, it would have been almost impossible for him to come to a right decision in his judgment.

It was for the above reasons that I dismissed the appeal on the 3rd day of March, 1987.


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