Godwin Uzoechi V Elias Onyenwe (1999)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J.S.C.
The original plaintiff who sued in representative capacity on behalf of Okorokwaraun: kindred. John Ekke, died on 2nd February, 1982, in course of proceedings and by application of the kindred the present plaintiff. Godwin Uzoechi, was granted leave by trial court to substitute as plaintiff. The action was for declaration of title, damages for trespass and injunction in respect of a piece or land called “Ohiagu” by plaintiff and in respect or which a plan, Exhibit A. was drawn. After all the pleadings were exchanged, the trial court heard evidence and Ugoagwu. J., delivered judgment in favour of the plaintiff by concluding as follows:-
“In the final result, on a calm view of the totality of the evidence adduced, the pleadings and submissions of learned counsel for the parties. I am satisfied that the plaintiff has proved his case on the balance of probabilities and that he is entitled to the judgment of this court. I will also add that I find as a fact that the name of the land in dispute is ‘Ohiagu’ and not ‘Ukabi Ohiagu’.”
Consequent upon the aforementioned judgment, the learned Judge made the following orders:-
“1. The plaintiff, Godwin Uzoechi, and members of Okurokwaraure kindred in Obiohia are entitled to the customary right of occupancy of that piece of land called ‘Ohiagu’ situate at Obiohia in Ideato Local Government Area within jurisdiction and more particularly shown verged red in plan No. P. O./E41/76. Exhibit ‘A’.
- The defendants shall, jointly and severally, pay to the plaintiff N400.00 general damages for trespass to the said land.
- The defendants by themselves, their agents and of servants are hereby perpetually restrained from acting in any manner inconsistent with the plaintiffs rights of possession of the said Ohiagu land.’
The defendants appealed against this decision to the Court of Appeal, Port Harcourt Division. The Court or Appeal allowed the appeal and set aside the entire decision of the trial court. The plaintiff pleaded that his kindred is called Okorokwaraure in Obioha and the kindred is also known as Mkpokiriohia, this defendants admit in their paragraph 2 of statement of defence. However, defendants’ assert that the plaintiffs kindred were shown the land in dispute by defendants’ ancestors for their dwelling. It is very clear in this paragraph 2 which states as follows:-
“The defendants admit paragraph I of the statement of claim only to the extent that the plaintiff is a resident of the kindred called Okorokwaraure in Obioha and also called Mkpokiriohia which is the name of the section of Okorokwaraure to whom the defendants’ ancestors showed a dwelling land called Ukabi Ohiagu now being disputed by the plaintiff. Defendants deny that plaintiff’s fellow kinsmen are all in support of plaintiff’s claim to defendants’ land or that he represents them and plaintiff is hereby put to the strictest proof thereof.”
That the defendants were not disputing tha1 the plaintiff, Godwin Uzoechi. is a member of Okorokwaraure kindred of Obiohia in Ideato Local Government. Nkpokirioha kindred is the same as Okorokwaraure kindred. Despite this admission of the kindred to which the plaintiff belongs by the defendant, it is curious that the Court of Appeal held as follows:
“i. that the plaintiff is not a member of Okorokwaraure kindred, he descending from Okonkwo and therefore in essence had no locus standi to sue on behalf of that kindred;
ii. that the plaintiff failed to prove conclusively his traditional evidence because any evidence of long possession built on traditional evidence must also fail since it would be without foundation;
iii. no creditable evidence was led to prove plaintiff’s claim to title by acts of ownership;
iv. trial court did not properly evaluate the evidence relating: to the traditional boundary between Ohiala and Urualla.”
The plaintiffs as appellants in this court, on the line of their grounds of appeal, formulated the following issues for determination:-
i. Whether the plaintiff proved his locus standi to sue to respect of land which, on the evidence, belongs to the descendants of Okorokwaraure.
ii. Whether the Court of Appeal acted correctly in reviewing the findings of fact of the High Court, setting aside the same and substituting its own findings.
iii. Whether the Court of Appeal was right in deciding that the plaintiff cannot rely on affidavits which were not tendered as evidence at the interlocutory stage of the proceedings.”
It is clear in paragraph 2 of the amended statement of defence that the defendants admitted plaintiff belonged to Okorokwaraure kindred and thus he had locus standi to sue. Before the Court of Appeal, the defendants as appellants in their brief of argument stated clearly as follows:-
“It was common ground between the parties that the plaintiff/respondent and his kindred (Okorokwaraure) were native (sic) of Obioha and that the defendants/appellants were natives of Umuago Urualla:’
The Court of Appeal apparently erred when it held that the plaintiff was not from Okorokwaraure kindred. The court no doubt got confused by not relating that Okechukwu, the plaintiff, was actually of the kindred of Okorokwaraure. This is one of the dangers of appellate court being unwary of disturbing findings of fact by trial court. It must be pointed out that plaintiff substituted John Eleke who died, and that to make substitution possible the court had to grant leave so to do after hearing an application by way of motion supported by affidavit. The affidavit indicated clearly the relationship of the substitute to the Okorokwaraure kindred. Once he was allowed to substitute John Eleke, he certainly had acquired locus standi and that was never an issue again in the Court of Appeal. It is a little storm in a tea cup. Assuming even the Court of Appeal is right that the plaintiff has no locus dismissal of the action be lawful verdict (See Oloriode v. Oyeti [1984] I SCNLR 390), The plaintiff, by the pleadings and evidence before the trial court, had every right to sue either by himself or in a representative capacity because he was of the Okorokwaraure kindred in so far as it is right for him to protect his interest as well as that of his kindred (see Melifonwu & Ors. v. Egbuji & Ors. (1982) 9 SC. 145; Odeneye v. Efunuga (1990) 7 NWLR (Pt.164) 618; Oseni v. Dawodu (1994) 4 NWLR (Pt.339) 390; Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) (659). At any rate, the order of the High Court substituting late John Eleke with Godwin Uzoechi was not challenged either at the High Court or at the Court of Appeal.
The Court of Appeal dwelt at length on findings of fact by the trial court. An appellate court must be wary of disturbing the findings of fact by trial court. The trial court saw and heard the parties and it is not an easy task for an appellate court to replace it eyes and ears for those of trial court. The evidence of plaintiff on traditional history in line with his statement of claim was that the first owner of the disputed land was one Ohaere. This the Court of Appeal held was deficient because it was not pleaded how Ohaere came on the land “whether by conquest, deforestation, and appropriation of virgin land”. Is this a defect when viewed along with what is contained in the evidence and pleading of the defendant Is it always necessary to indicate how a remote ancestor settled on the land It is remarkable to find that the Court of Appeal observed as follows:-
“Another glaring flaw in the judgment of the learned trial Judge is his misdirection when, on page 165 lines 7-13, he commented that the appellants did not plead, their traditional history in respect of the land in dispute and that the respondent pleaded his and led evidence in support, He went further to hold on page 16g lines 16-19 that there was no evidence from the appellants to weigh against that of the respondent on traditional evidence.”
That court never pointed at any evidence the trial court omitted on the side of defendants. The Court of Appeal also never indicated the traditional evidence of defendants the trial court never considered. Rather, the trial court juxtaposed traditional evidence on both sides and came to a conclusion believing the plaintiff evidence. The plaintiff pleaded and testified on three survey beacons on the northern boundary of the land in dispute, these survey beacons arc in the plans tendered as Exhibits A and B by plaintiff and defendants respectively. The plaintiff pleaded Nkoro (ancient defensive trench) as the northern boundary and showed it on Exhibit A. The defendants who planted the beacons and called them (plaintiff’s kindred) to witness the exercise: the defendants were silent on this. The trial Judge on this believed the version of the plaintiff and rejected the evidence of the defendants. The defendants established the beacons because the Nkoro was becoming shallow and with time it might disappear altogether; the trial court believed this. It is to be noted that rather than the Nkoro the plaintiff claimed as the boundary the defendants denied even having a common boundary with the B plaintiff’s kindred. The Court of Appeal, like the trial court, believed they had a common boundary.
The plaintiff’s kindred were all along in physical possession of the land in dispute by farming on it. The defendants tried to explain this away by claiming the plaintiff’s kindred were their customary tenants, which the trial court rightly rejected. The Court of Appeal was in error to have interfered with clear findings of fact by trial court based on pleadings and evidence before it. Once the findings of fact are based on the evidence upon the pleadings of the parties, the Court of Appeal should not interfere with them (Agwunedu v. Onwumere (1994) 1 NWLR (Pt.321) 375; Nwoke v. Okere (1994) 5 NWLR (Pt.343) 159; UBN Ltd. v. Albert Ozigi (1994) 3 NWLR (Pt. 333) 385; Oro v. Folade (1995) 5 NWLR (Pt.396) 385; Nlewedim v. Uduma (1995) 6 NWLR (Pt. 402) 383).
It is a different thing if trial court failed to make findings or arrived at inconsistent findings on a crucial issue raised by the parties (Adegbite v. Ogunfaolu (1990) 4 NWLR (Pt.146) 578). With great respect, the Court of Appeal never availed itself of this time honoured principle of law.
“It is to be noted that the defendants tried to make a big issue of the missing Nkoro in their plan Exhibit B. Rather, belatedly they concentrated their argument not on Nkoro but on ‘Awala Muo’-
which means the same thing. It has not caused the slightest confusion.”
I find great merit in this appeal and for the foregoing reasons, I allow it. I set aside the decision of the Court of Appeal and restore the judgment of the trial court. I award N10,000.00 against the defendants/respondents in this court and N5,000 in the Court of Appeal as costs in favour of plaintiff/appellant.
SC.217/1993