Ikechi Olue & Ors v. Obi Enenwali & Ors (1976)

LawGlobal-Hub Lead Judgment Report

NASIR, J.S.C.

This is an appeal from the order dated the 12th November, 1973 made by Aghoghovbia J. sitting at Agbor High Court. The facts, as far as relevant to this appeal are not in dispute. The Plaintiffs/Appellants claimed from the Defendants/Respondents in case No. W/20/55, at the old Supreme Court sitting in Warri, for declaration of title, damages and injunction in respect of an area of land known as “Ofia Enugu”.

During the trial of the said case before Onyeama J. (as he then was), the parties agreed to settle the dispute amicably. Onyeama J. then gave a decision according to the terms of the settlement on 20th June, 1956. The agreed terms were signed by the solicitors of both parties and by the learned trial judge. The most important provision in the settlement agreement was the demarcation of the boundary line between the lands of the Plaintiffs and of the Defendants.

This boundary was clearly marked on Plan No. GA/311/55 filed by the Plaintiffs. This plan was accepted and agreed to as the correct and accurate plan for the purposes of the agreement. The cardinal points for the boundary between the parties on this accepted plan were marked A, B, X, Y and Z. At a subsequent supplementary agreement before Duffus J. on 2nd June, 1958 it was agreed by the parties that the said points A, B, X, Y and Z as on the plan should be demarcated on the ground by an independent and experienced surveyor.

On the 26th of May, 1969, Uche Omo J. made another consent order which, among other things, appointed the Surveyor-General of the Mid-western State as the independent surveyor and was directed to refer only to plan No. GA/311/55 on which the boundary was clearly shown and marked A, B, X, Y and Z. by Onyeama J. The Surveyor-General was further instructed to produce a survey map showing relevant points of plan No. GA/311/55 and clearly noting therein the boundary points as demarcated by him and the specific points at which the cement pillars have been implanted. In his effort to implement the order, the Surveyor-General came across some difficulties and he referred the matter back to the court for clarification. As a result of this request, another consent order containing the clarification was made on the 15th October, 1969.

As from the 2nd November, 1970, the presiding judge was M.A. Aghoghovbia J. who made various incidental consent orders in the efforts of the court to implement the consent judgment of Onyeama J.On the 2nd April, 1973, a Motion on Notice was filed by Mr. Iguh of counsel. This Motion was heard and the order made by Aghoghovbia J. on 10th April, 1973. After making the order the learned judge made the following remarks:

“The records of this case show that I was counsel in the matter at the early stages of the hearing. I have to withdraw when it was part-heard and the case was later handled by some other counsel to conclusion. There was a consent judgment in the case but because of a faulty surveyor’s plan, the parties had to solicit the courts aid for a neutral surveyor to demarcate the boundary between them. This exercise was on before I came to this station and I had made some orders in respect thereof before I only recently discovered that I have been counsel in the matter before. I have my doubts as to whether I should not now revoke any orders I might have already made in respect of this matter. Both counsel are anxious that the matter be disposed of and say they personally have no objection to my proceeding with the application in so far as it was a consent judgment. I do appreciate their confidence but would rather adjourn the matter to another date for both counsel to reconsider the point particularly after consulting their clients.”

The matter was then adjourned to the 22nd May, 1973. On that date the following was recorded before the matter was proceeded with: –

“Counsel for both sides were asked whether they have consulted with their clients as to whether they consent to this court going on with the matter. They each say they have and that their clients are quite agreed that this court proceed with this matter.”

After this, one Abudu Umoru, a representative of the Surveyor-General, testified and put in plan No. AG.C.34 of 10.10.72; the witness was examined and cross-examined. He explained what was done and what was on the plan. The court ordered the Surveyor-General to produce a final plan based on this preliminary plan. On 12th November, 1973, one Thompson Kpeji representing the Surveyor-General brought to court the final plan No. AG.C.35 of 9th November, 1973. This witness too was examined and cross-examined. The learned trial judge made his order as follows: –

“It has been a question of give and take by both sides to arrive at the present boundary by an impartial and independent surveyor, and both sides having earlier agreed and accepted the points A, B, X, Y and Z on the 22nd May, 1973, I now order that the plan NO. AG.C.35 of 9th November, 1973 be the final plan indicating the common boundary agreed to by both parties. I shall therefore sign the said plan accordingly”.

This is the order which gave rise to this appeal.

At the hearing of this appeal, learned counsel for the Appellants argued seven grounds of appeal, but the main argument of counsel was on grounds 3 and 4 which were argued together. They read as follows: –

“3. The whole trial was unconstitutional and void because the learned trial judge conducted the trial inspite of the fact that he was formerly a counsel in the same cause.