Marcus Opuiyo & Ors. V. Johnson Omoniwari (Deceased) & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

This appeal arose out of a land dispute between two families from Rivers State. The appellants (hereinafter referred to as the plaintiffs’), for and on behalf of the Amaso family of Ogoloma in Okrika, Rivers State, brought a suit at the Port-Harcourt High Court against the 1st respondent Johnson Omoniwari, now deceased (hereinafter referred to as the defendant) of Kinugbe family of Koroni Biri, Ogoloma claiming the following reliefs:

“(a) that the plaintiffs arc entitled to the statutory right of occupancy to all that piece or parcel of land situate at Amaso Compound of Ogbimebiri or Polo, Ogoloma which said land is more particularly delineated on Plan No.CTH.30(L/D) and therein Verged red.

(b) order of forfeiture of the defendants use of the land and house granted to him without fee by plaintiffs ancestors.

(c) a perpetual injunction restraining the defendants, their kinsmen, servants and agents from further interference with the plaintiffs ownership and possession of the said land in dispute.”

Both parties filed and exchanged pleadings after which the suit was tried by Sagbe J. The plaintiffs’ case was simple and straightforward. They pleaded that the land in dispute, situate at Ogbikime Polo, in Ogoloma was first allocated to plaintiffs’ ancestor Amaso. The land has since remained in the Amaso family through the descendants of their ancestor. The 1st defendant later sought the permission of one Oruta of Amaso family to reside in a house built on the land by Amaso. The permission was granted. A time came when the plaintiffs’ family needed the house because of the expansion as a result of population growth within the plaintiffs’ family. This imposed on the plaintiffs the necessity to ask the 1st defendant to quit the plaintiffs’ land. The 1st defendant refused to quit and instead claimed the ownership of the land in dispute. The plaintiffs then sued claiming as earlier set out above.

The defendants in their statement of defence denied that they belonged to Kinigbo family of Koromibiri, Ogoloma or that the land belonged to plaintiffs” ancestor Amaso. It was pleaded that the land in dispute was first settled upon by one Kwo, the 1st Amanyanabo of Ogoloma who was 1st defendant’s great grandfather through his son AmawatanKa who beg at 1st defendant’s father Owoniwari. It was pleaded further that the 1st defendant’s father, at his death, was buried on the land in dispute.

At the trial, the plaintiffs called three witnesses in support of their case. The defendants called two witnesses. On 15-6-92, the trial judge in his judgment dismissed plaintiffs’ suit. He concluded the judgment in these words:

“The plaintiffs claim that the defendant left the land in dispute and returned to it after he had been deprived of the land allocated to him by the Obudibo family. The defendant denied this allegation and said that it was not true that the plaintiffs allowed him to return to the land conditionally. He also said that he had no relationship with the Obudibo family.

The accepted methods of proving ownership of land are traditional history of ownership, and where that is inconclusive, then proof of acts of occupation and use of the land over a considerable long period of time without challenge or disturbance from any other claimant and where that fails, proof of exclusive possession without permission. In our instant case, from the pleading and evidence adduced by the plaintiffs in support of their traditional history of ownership it cannot be said that they have proved exclusive ownership of the land in dispute.

In our instant case the defendant has led evidence both oral and documentary in proof of his customary title to the land in dispute and there are evidence of repeated acts of ownership by the defendant to give rise to the inference that he is the owner.

The plaintiffs’ line of succession is unsatisfactory and poorly traced. The defendant’s root of title is more probable. I, therefore, prefer the traditional history of the defendant to that of the plaintiffs.

In my view, the plaintiffs’ family has not been able to prove that they have a better title to the land in dispute that the defendant. So that there claim for the customary right of occupancy over the land fails and is hereby dismissed.

Since the claim to customary right of occupancy fails the claim for forfeiture of defendant’s use of the land and house also fails and is also hereby dismissed.

The order of perpetual injunction must also fail and it is hereby dismissed.

I accordingly hereby enter judgment for the defendant with costs assessed at N250.00″

The plaintiffs were dissatisfied with the judgment of the trial court. They brought an appeal before the Court of Appeal, Port-Harcourt (hereinafter referred to as ‘the court below’). On 10-12-2001, the Court below in its unanimous judgment dismissed the appeal and affirmed the judgment of the trial court. The plaintiffs were dissatisfied with the judgment of the eoul1 below. They have come before this court on a final appeal. In their appellants’ brief, the issues for determination in the appeal were identified as the following:

(i) Was there a miscarriage of justice to the fair and proper hearing of the appellants’ case in the treatment of only one (1) narrow issue by the Hon. Justices of Court of Appeal instead of all the material issues raised by the panics and docs this vitiate the judgment of the said Court of Appeal

(ii) Was the Court of Appeal right to have ignored the complaint ab initio of the appellants that the learned Judge’s adopted approach did not conform with law particularly the guidelines in Mogaji v. Odofin (1978) 4 S.C. 91 at 93/95.”

The defendant filed a respondent’s brief. In the said brief, two issues were raised. The first of the two issues would in a strict sense not be a mailer arising from the grounds of appeal raised by the plaintiffs/appellants. The issues read:

“3.01. Whether this appeal is competent having regard to the failure of the appellants to obtain leave of this Honourable Court or the court below in accordance with section 233(3) of the Constitution of the Federal Republic of Nigeria, 1999.

3.02. Whether the solitary issue considered by the Court of Appeal regarding the trial court’s evaluation of evidence of traditional history in this case is enough and necessary to dispose of this appeal”

The respondent’s first issue above raises a very fundamental matter relating to the competence of the appeal. The learned counsel for the respondent in his brief has contended that the grounds of appeal filed by the plaintiffs/appellants were all of facts and or mixed law and fact for which the appellants needed to have first sought and obtained the leave of the court below or this court before raising them. It was contended that the appellants not having obtained the requisite leave did not have a valid appeal before this court. Counsel urged us to strike out the appeal. He placed reliance on Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR 587.

The appellants did not file an appellants’ reply brief in answer to the objection raised by the respondent as to the competence of the appeal. I therefore have to decide the matter without the benefit of an input from the appellant.

Now the three grounds of appeal raised by the plaintiffs/appellants read-:

1. The Court of Appeal erred in law in failing to dispassionately consider the material issues for determination set out by both parties in the appeal and its narrow consideration of only one solitary issue clearly resulted in a denial of fair and/or proper hearing of the case of the appellants. This culminated in a miscarriage of justice.

PARTICULARS OF ERROR:

a. Appellants had complained to the Court of Appeal that the High Court judge failed to consider material issues of fact in the case before him.

b. There was further complaint that the said High Court quite apart from non-consideration, did not also evaluate all the material facts and/or issues raised by the parties in the case before arriving at its decision which was perverse. Many instances were highlighted in the appellants’ brief.

c. By one kind of unknown reason for the coincidence the Court of Appeal did not dispassionately consider these material issues but narrowed them further. Both parties raised similar (3) three issues for determination by the Court of Appeal which were ignored except for (1) one issue. The Court of Appeal thus did not consider the crucial issues in the case or did so narrowly.

d. A just and dispassionate consideration of each of the issues raised by both parties should have ensured fair hearing and just determination of the matter as provided for in the constitution.

e. The consideration of only a solitary issue by the court clearly circumscribed the fair and proper hearing of the appeal brought by the appellants and ultimately resulted in a miscarriage of justice.

f. Appellants right to a proper and fair determination of their case on the issues raised was further breached by the Court of Appeal. The complaints against the decision(s) of the High Court still remained unattended to.

2. The learned justices of the Court of Appeal erred in law in failing to come to any decision on the complaints of the appellants that the learned trial Judge adopted a wrong approach or procedure in determining the case contrary to the guidelines in Mogaji v. Odofin (1978) 4 S.C. 91 at 93/95 and this ab initio resulted in a miscarriage of justice to the appellants.

PARTICULARS OF ERROR:

a. The Court of Appeal had noted that one of the complaints of the appellants was the judicial approach of the High Court Judge in arriving at his decision.

b. The complaint was to the effect that the learned Judge failed to evaluate or make findings of facts on material issues raised in the case by a dispassionate consideration of all the available facts in line with the case of Mogaji v. Odofin (supra).

c. This wrong judicial approach which negated fair and proper hearing, although alluded to by the Court of Appeal was never considered by the learned Justices or at all.

d. This complaint was fundamental to the judgment itself procured by the High Court and its non-consideration by the Court of Appeal resulted in a serious miscarriage of justice in the determination of the appellants’ case. The fulcrum of the High Court judgment subject of appellants grievance was untreated by the learned Justices, thus the injustice complained by appellants persisted.

3. The judgment of the Court of Appeal was against the weight of evidence in the case.”

In the determination of the question whether or not a ground of appeal is of law or fact/mixed law and fact, it is important to consider together the principal complaint and the particulars of error provided thereunder. When the approach is followed in relation to the first ground of appeal above, there is no doubt that the ground is of mixed law and fact. As a matter of law, a court has the duty to consider the issues submitted to it for adjudication. Where a Court fails to consider and adjudicate on such issues, it is usually an error of law because the omission constitutes a denial to the party complaining of his right of fair hearing as enshrined in the constitution. However, as the complaint is an invitation to the appellate court to consider those matters of fact which had not been considered by the court below, it becomes an issue of fact or mixed law and fact before the appellate court. The appellants’ first ground of appeal above is an invitation to us to consider afresh those issues of fact which the court below had failed to consider. This is the more so in view of the reliefs which the appellants are seeking from this court in their notice of appeal. The reliefs read:

“(1) To allow the appeal, set aside the decisions of Court of Appeal, Port Harcourt division, dated 10-12-2001 and substitute therefore judgment for the plaintiffs/appellants as per their endorsement on writ of summons.-

ALTERNATIVELY, an order for a retrial by another judge of the High Court of Rivers State.”

The position is that, if this court engages itself in a determination of whether those matters which appellants stated were not considered, but if considered would have been decided in favour of the appellants, we would be considering in the process an issue of mixed law and fact. If on the other hand, we elect to consider a retrial, we would still engage in an evaluation of the evidence not considered: and then determine whether a retrial would meet the justice of the case. See Ojemen v. Mododu (1983) 1 SCNLR 188; Customs v. Barau (1982) 10 S.C. 48.

The second ground of appeal is in my view similar to the first ground although couched in a different language. It is still the same complaint that the court below failed to consider the complaints raised before it as to the non-evaluation of evidence by the trial court. This ground is also of fact or mixed law and fact.

The third ground of appeal is the omnibus ground which is a complaint on the weight of evidence. This generally is regarded as a ground of fact in a civil case.

The result of all that I have said above is that all the grounds of appeal raised by the plaintiffs/appellants being of fact and or mixed law and fact ought not to have been raised without the leave of this court or the court below. It is now settled law that this court cannot hear an appeal on grounds of mixed law and fact unless leave of the court or the Court of Appeal has been obtained. See Oluwole v. L.S.D.P.C. (1983) 5 S.C. 1 and Adejumo v. State (1983) 5 S.C. 24

The plaintiffs/appellants failed to obtain the requisite leave. Clearly therefore their appeal is incompetent for non-compliance with section 233(3) of the 1999 Constitution. The appeal must be and is hereby struck out with N10,000.00 costs in favour of the respondents.

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SC.131/2002