Ireju Nwokidu And Ors V Mark Okanu (2010)

LAWGLOBAL HUB Lead Judgment Report

O.O. ADEKEYE, JSC,

This appeal is against the judgment of the Court of Appeal, Port Harcourt Division delivered on the 31st of October 2001. The judgment of the Court of Appeal upheld that of the High Court of Rivers State which dismissed the claim of the plaintiffs before the Court in its entirety. This appeal by the appellants before the court is designed to set aside the concurrent judgments of the court below and the trial court. The plaintiffs-appellants maintained the action in a representative capacity on behalf of themselves and the Umunwangwo family of Kreagani village in Ogba/Egbema District of Ahoada Local Government Area against the defendants/respondents who also defended the suit in a representative capacity for themselves and on behalf of the Alinso-Okanu family of Kreagani in Ogba/Egbema District. The claim of the plaintiffs-appellants as pleaded in paragraph 26 of the Further Amended Statement of Claim, page 31 of the Record of appeal reads as follows: – (1) A declaration that they are the persons entitled to the customary right of occupancy of all that piece or parcel of land known and called ‘Aliazulo’ lying situate and being at Kreigani in Ogba/Egbema District in Ahoada Local Government Area, Rivers State, which is verged Red on the plaintiffs survey plan. (2) N6, 000.00 (six thousand naira) general damages for various acts of trespass committed on the plaintiffs land about 1970 and since then. (3) A perpetual injunction restraining the defendants whether by themselves, their servants or agents or otherwise however from committing further acts or trespass on the said land. At the trial court, parties exchanged pleadings and each side called five witnesses in support of their case. Both parties admitted being natives of Kreigani, and that the land in dispute is within Kreigani Town. (The plaintiffs-appellants identified the land in dispute as ‘Aliazulo farm land’ lying, situate and being in Kreigani along orashi river. Aliazulo in Ogba language means ‘land behind the house’. The land is properly delineated and verged red on an amended survey plan No. 372 dated the 17th of November 1983, filed along with the Statement of Claim. The land is bounded as follows: – On the North by the land ofUmuchikere family of Omoku. On the South by the lands of the plaintiffs On the East by the land of the plaintiff and that of Umuodu family of Okposi, and the land ofUmunkaru family of Ornoku. On the West by Orashi river. PAGE 2 The plaintiffs-appellants claimed ownership of the land in dispute through their ancestor called Ngwor who during a hunting expedition came to a place where he saw a narrow fast running stream, and screamed ‘Kiri Ngene’. He acquired the area by settlement arid developed the stream into Orashi River. Other people joined the ancestors of the plaintiffs in the area. They not only settled at Kreigani, they also fanned across the river. The defendants/respondents referred to the area in dispute as Ncharata Land. The land and its boundaries are clearly verged yellow on the defendants plan filed in this suit. The plaintiffs live south of the defendants who are owners of Aliazulo land, Aliazulo land is distinct from and has nothing in common with Ncharata land. The defendants-respondents claimed ownership of the land in dispute from time immemorial through their ancestor Akpu who first settled on the land in the area as a virgin forest and called the place ‘Aligwu’. The entire land includes the land in dispute Ncharata land and Aliazulo the latter now home of the plaintiffs. The defendants claimed that they are distinct people and ancestors of the defendants gave land Aliazulo backyard to Ngwor the ancestor of the plaintiffs. Ngwor, his wives and descendants did menial jobs for him. Both plaintiffs and defendants claimed the entire Kreigani including the land in dispute, relying on traditional history and various acts of ownership and possession exercised by their ancestors down the line. The learned trial judge after a review and evaluation of the evidence of the parties in his considered judgment declined to grant the declaratory reliefs of the plaintiffs as the evidence in support was not strong and credible as required in the circumstance of the case. In his conclusion in the judgment at pages 103 to 141 of the Record) the learned judge held that: – ‘I have carefully gone through the case by the pleadings of the respective parties, their survey plans and the evidence given by their witnesses. The clear result of the evaluation of the evidence tendered on every aspect of this case is that, that of the defendants witnesses weigh more and is more credible and believable than those given by the plaintiffs witnesses. See Mogaji v. Odofin (1978) 4 SC 97 at page 93. So that the finding of this court is that, from the totality of the evidence given, the defendants are the owners of the entire land in dispute which is verged yellow on their survey plan No. OK/RSD/5/77 made on the 9th May 1977 and tendered in this case as Exhibit D 15. I have earlier in this judgment and after reviewing the plaintiffs case held that the plaintiffs have failed to prove that they are the owners of the land in dispute by any of the modes. That conclusion, coupled with my final finding that the defendants are the owners of the land in dispute show that the plaintiffs case in the suit have failed and accordingly I dismiss their claims in this suit against the defendants in their entirety.’

In an appeal to the Court of Appeal Port Harcourt, that Court was able to identify that there was no dispute that needed to be resolved in relation to the fact that the land in dispute is in Kreigani – as aligwu itself being within Kreigani. The entire case was fought on the question of who was the original owner of the disputed property.

The Court of Appeal also concluded in the leading judgment prepared by J.O. Ogebe, JCA (as he then was) that: – ‘I see no substance in any of the complaints of the appellants. They failed to prove their claim before the lower court and the lower court was justified in dismissing their claim. I see no basis whatsoever to interfere with the judgment of the trial judge which in my respectful view is solid. Accordingly, I dismiss the appeal and affirm the judgment of the trial court. I award costs of N5, 000.00 in favour of the Respondents.’ Being dissatisfied with this judgment, the appellants made a further appeal to this court. At the hearing of the appeal on 2/11/09 – the appellants adopted and relied on the appellants’ brief deemed filed on 26/3/03, and the appellant reply brief filed on 29/9/03. The appellants filed five grounds of appeal from which they distilled five issues for determination as follows: –

(1) ‘Whether the judgment of the Court of Appeal was consistent with the evidence tendered at the hearing of this case in the High Court.

(2) Whether the evidence tendered in the High Court by the parties did in any way show that the land respectively called by parties as Aliazulo in Kreigani on the one hand and Ncharata in Aligwu on the other hand were one and the same land.

(3) Whether the finding that the appellants were guilty of standing by was justified by the evidence tendered before the court and the plan of the land in dispute tendered by the plaintiff which clearly pointed to the piece of land over which Chief Ellah sued and the other piece of land on which Anumudu built as outside the land in dispute.

(4) Whether the Court of Appeal was in error when it failed to hold that the finding of the trial court to the effect that the finding of this court is that from the totality of the evidence given the defendants are the owners of the entire land in dispute which is edged yellow in their survey plan amounted to a declaration of title to or affirmation of ownership of the entire land on the defendants who did not counter claim for such declaration or at all.

(5) Whether reference by the appellants to the Lands Transfer Ordinance was intended as constituting proof of title by production of document only and whether the appellants unchallenged evidence that their predecessors were grantors noted in the Niger Lands Transfer Ordinance and the agreement of 4th January 1897 was not sufficient to tilt the scale in favour of the appellants.

The respondents adopted and relied on the respondents brief filed on 22/5/03. The respondents raised one sale issue for determination as follows- ‘Whether upon the preponderance of evidence and the law governing the role of an Appellate Court, the Court of Appeal was in error when it sustained the decision of the High Court dismissing the plaintiffs-appellants claim in its entirety.’ At this stage, the respondents learned counsel drew attention of the court to preliminary issues arising from this appeal as follows: –

(1) The appellants issues for determination are prolix, in that Issues No.1 and 2 were distilled from Ground 1 of the Ground of Appeal which is the omnibus ground. It is not permissible in law to formulate more than one issue from one ground of Appeal. The court is to discountenance Issues No.1 and 2 formulated by the appellants and the argument in their support. Ground 2 of the appellants ground of appeal did not arise from the judgment of the Court of Appeal or of the High Court. There was no issue formulated by the appellants from Ground 2 of the Ground of Appeal. The ground is therefore deemed to be abandoned and must consequently be discountenanced. Issue No.2 was not formulated from any ground of appeal, and the appellant cannot rely on the omnibus ground of Appeal to sustain it. The court is urged to discountenance Issues Nos. 1 and 2 raised by the appellants. The respondents supported the submission with cases Ugo v. Obiekwe (1989) NWLR pt.99 pg. 566 at pg.580. Ogunbiyi v. Ishola (1996) 6 NWLR pt.452 pg.12 at pg.20. Din v. African Newspapers Ltd. (1990) 3 NWLR pt. 139 pg.392 at pg. 403. Akibu v. Oduntan (2000) 3 NWLR pt. 685 pg.446 at 462-463. Iyaji v, Eyigebe (1987) 3 NWVLR pt.61 pg.523 at pg.528. Calabar East Co-op v. Ikot (1999) 4 NWLR pt.638 pg.225 at pg.246. Ndiwe v. Okocha (1992) 7 NWLR pt.252 pg.129 at pg.139-140. In the reply brief filed by the appellants on 29/9/03, the respondents were alleged to have misconceived the import of the appellants argument that issues numbers 1, 2 and 5 were taken together and that issues numbers 1 and 2 relate to the omnibus ground expressing that the judgment of the Court of Appeal was against the weight of evidence, The Ground 2 complained against the failure of the Court of Appeal to make a finding on the status of Aligwu and Kreigani in respect of the disputed land. The’ appellant submitted that while the attack on the competence of ground 2 may relate to the merit of the appeal, it cannot constitute a preliminary point of law to give grounds for objection. Ground 2 has not been abandoned – it is subsisting and valid. Issue No.2 is from ground 2 of the ground of appeal. The issue of identity of the land in dispute was before the trial court.

The respondents formulated a single issue in respect of the appeal in the respondents brief thereafter which was argued along the line of the issues raised by the appellant regardless of the preliminary issues already considered. The appellants filed five grounds of appeal and distilled five issues for determination in the appeal itself. While arguing the appeal, the appellant decided to combine Issues one, two and five together and made submission on them jointly.

The appellant argued that issues Nos. 1 and 2 relate to the omnibus ground that the judgment of the Court of Appeal was against the weight of evidence. This submission obviously carries the impression that issues one and two are formulated from the omnibus ground. The appellant argued that the complaint is against the finding of the trial court in respect of a specific issue of the identity of the land in dispute. It is noteworthy that an omnibus ground of appeal is a general ground of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding of fact or any document and it cannot be used to raise any issue of law or error of law. .For a complaint on a finding of fact on a specific issue, a substantive ground of appeal must be raised challenging that finding. It cannot be covered by an omnibus ground. Ajibona v. Kolawole (1996) 10 NWLR pg. 476 pg. 22.

The other four grounds of appeal against the judgment relates to the error in law and misdirection spotted in the findings of the lower court before arriving at its conclusion in the judgment. This to my mind could have been covered by the omnibus ground raised, by the appellant. The complaint made on the omnibus ground is that the judgment of the Court of Appeal is against the weight of evidence. The four grounds of appeal challenged the evidence before the court and findings of the lower court in view of the evidence. In effect when an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the Respondent the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence. The five issues raised relate to the five grounds of appeal filed, particularly issue one fits into the omnibus ground – while ground 2 is not abandoned. Since none of the grounds offend against the provisions of Order 8 Rule 4 of the Supreme Court rules, the objection is over ruled. It is however my observation that the sole issue raised by the Respondent is all embracing as it covers all the five issues formulated by the appellant. I intend to be guided by the issues formulated by the appellants being specific in nature. The appellant argued Issues Nos. 1, 2 and 5 together. Issue One Whether the judgment of the Court of Appeal was consistent with the evidence tendered at the hearing of this case in the High Court. Issue Two Whether the evidence tendered in the High Court did in any way show that the land respectively called by the parties as Aliazulo in Kreigani on Aligwu on the other hand were one and the same land. Issue Five Whether reference by the appellants to the Lands Transfer Ordinance was intended as constituting proof of title by production of title document only and whether the appellants unchallenged evidence that their predecessors were the grantors noted in the Niger Lands Transfer Ordinance and the agreement of 4th January 1897 was not sufficient to tilt the scale in favour of the appellants.