Luke Okoro & Ors V. Hilary Egbuoh & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The respondents were the plaintiffs at the Okigwe High Court of Imo State where as the representatives of the citizens of Umuduruiheoma/ Ofenkoro village, Okwelle, they claimed against the appellants as the defendants (representing the citizens of Ojiowere village, Okwene) the following:

“1. A declaration that the plaintiffs are the owners in possession of the piece and parcel of land known as ‘ALA OBI’ situate at Umuduru iheoma village, Okwene within jurisdiction.

2. N10,000,000.00 (Ten million naira) general damages for trespass committed by the defendants on or about 20th April, 1995.
3. An order of this Honourable Court that the defendants return to the plaintiffs, twenty pick-up loads of plaintiffs’ cassava tubers the defendants forcefully harvested and carted away from the said land.
4. Perpetual injunction restraining the defenants, their agents, servants and privies from further trespass in the said land.”

The parties filed and exchanged pleadings after which the suit was tried by Njemanze, J.

The plaintiffs called four witnesses whilst the defendants called one. The case made by the defendants was that the land in dispute formed a portion of land granted them in a previous Suit No. F.S.C. 16/1959 (1959) SCNLR 316. In order to establish the defence of estoppel per res judicata which they raised, the defendants tendered as an exhibit a Law Report wherein the judgment relied upon was published. The plaintiffs’ reaction to the defence of estoppel per res judicata was that the land adjudicated upon in the judgment pleaded by the defendants was not the same as the land in dispute.

In a judgment delivered on 16/1/97, Njemanze J. dismissed plaintiffs’ suit. He upheld the plea of estoppel per res judicata raised by the defendants. Dissatisfied with the judgment, the plaintiffs brought an appeal before the Court of Appeal, Port-Harcourt Division (i.e. the court below). The defendants, on 20/3/2001 before the appeal brought by the plaintiffs before the court below was heard, brought an application, wherein they prayed for:

“An order granting leave to the respondents/applicants to adduce further evidence in this appeal by tendering the certified true copy of the proceedings and judgment of the Supreme Court in suit No. FSC 16/1959 Ihenacho Nwaneri & 2 Ors. v. Nnadikwe Oriuwa & 5 Ors. (1959) SCNLR 316”.

The plaintiffs opposed the application. The court below in its ruling on 17/9/2001 refused the application. The defendants were dissatisfied with the order refusing their application to adduce further evidence on appeal. They have brought this appeal against the order.

In their appellants’ brief, the issue for determination in the appeal were identified as this:

“Did the learned Justices of the Court of Appeal, having regard to all the circumstances of this case, exercise their discretion properly when they refused to grant leave to the appellants to adduce as further evidence in the appeal, the certified true copy of the proceedings and judgment of the Supreme Court in suit No. FSC 16/1959 (1959) SCNLR 316”

The plaintiffs in their respondents’ brief formulated an issue for determination, which in substance is the same with the defendants’ issue.

In the appellants’ brief, it was argued that it was erroneous for the court below to have taken the general view that because the further evidence sought to be adduced had been available during the trial, the application could not be granted. Counsel relied on Bello Akanbi & Ors. v. Momudu Alao & Anor. (1989) 5 SC 1 at 19 & 44; (1989) 3 NWLR (Pt.108) 118. It was further argued that the paramount consideration in the grant of the leave to call further evidence on appeal was to ensure that the real question in controversy was determined on the merits- Adeleke v. Aserifa (1990) 3 NWLR (Pt.136) 94 at 110. Other cases relied upon on the same point are Owata v. Anyigor (1993) 2 NWLR (Pt.276) 380 and Igboasonyi v. Onwubuariri (1997) 3 NWLR (Pt.495) 592. Appellants’ counsel argued further that where the evidence to be called on appeal would have an effect on the jurisdiction of the court, the court should grant leave to call further evidence on appeal. Nwanezie v. Idris (1993) 11 LRCN 315 at 332; (1993) 3 NWLR (Pt.279) 1; Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477. Developing this argument further, counsel stated that since the further evidence to be called related to the applicability of res judicata, it was an additional reason to grant it Salawu Yoye v. Olubode. In any case, it was submitted, technicalities should not be allowed to hinder justice- Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652 at 676; Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184 and Long John v. Blakk (1998) 59 LRCN 3864; (1998) 6 NWLR (Pt.555) 524.

The plaintiffs in their respondents’ brief argued although the application of the defendants before the court below was for leave to call further evidence on appeal, what they had tried to do was to bring anew the same evidence they had previously tendered. It was argued that the defendants had not offered any special reason why they had not previously called the same evidence during the trial. Counsel relied on Bello Akanbi & 3 Ors. v. Mamudu Alao & Anor. (1989) 3 NWLR (Pt.108) 118. It was argued that if the counsel retained by the defendants at the trial had made a mistake, the defendants would still be bound by his conduct of the case Mosheshep General Merchants Ltd. v. Nigerian Steel Products Ltd. (1987) 2 NWLR (Pt.55) 110; Adewunmi v. Plastex Nig. Ltd. (1986) 3 NWLR (Pt.32) 767 and Onyia Nwagwu Ngwu & 6 Ors. v. Ugwu Onuigbo & 3 Ors. (1999) 13 NWLR (Pt.636) 512. Counsel stated the conditions for admitting further evidence on appeal as stated in Asaboro v. Aruwaji (1974) 4 SC 119 at 123 – 124 and submitted that the facts in this case did not fit into any of the conditions. Counsel also relied on Adeleke v. Aserifa (supra); Efuwape Okulate & Anor. v. Gbadamos Awosanya & 5 Ors. (1990) 5 NWLR (Pt.150) 340. It was submitted that the facts surrounding the present application differed from those in Igboasonyi v. Onwubuariri (supra).

The respondents’ counsel argued further that the application by the defendants was in reality an attempt to overreach the plaintiffs in their appeal before the court below. It was stated that the plaintiffs had in one of the grounds of appeal before the court argued the inappropriateness of tendering a law report in the place of record of proceedings.