Moses Okoye Dike & Ors. V. Francis Okoloedo & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C

In suit No. HN.18/77 filed in the Nnewi High Court of Anambra State, the appellants who were the plaintiffs claimed against the respondents jointly and severally as per paragraph 26 of their Amended Statement of Claim, the following reliefs:-

“1. Declaration that the plaintiffs are entitled to the statutory/Customary rights of Occupancy to that piece or parcel of land known as and called “ORURA MBUBA” land, situated in front of “EDO” SHRINE, at Uruagu village. Nnewi, within the jurisdiction of this Honourable Court and more particularly delineated and verged BROWN in the plaintiffs survey plan No. NLS/AN.563/88 and filed with this amended statement of claim.

2. Declaration that the purported sale of a portion of the said “Orura Mbuba” land by the 1st Defendant or his privy to the 2nd Defendant is void and ineffective by Nnewi law and custom.
3. Declaration that the purported sale of the said “Orura Mbuba” land by the 1st Defendant or his privy to the 3rd Defendant is void and ineffective by Nnewi Native Law and custom.
4. An Order setting aside the purported sales mentioned above.
5. Recovery of possession of the said “Orura Mbuba” land from the 1st, 2nd and 3rd Defendants.”

At the trial, the appellants called three witnesses and the respondents called six witnesses in support of their respective pleadings. Counsel for the parties addressed the court and the learned trial judge, Olike J., in his considered judgment delivered on 5th day of February, 1990, granted all the reliefs claimed by the appellants and rejected the defence of the respondents.

The respondents were dissatisfied with this decision and they appealed to the Court of Appeal, Enugu Division, which finally heard the appeal and held per Uwaifo JCA (as he then was) that:-

“This appeal therefore succeeds and is allowed. The judgment of the lower court together with the order for costs is set aside. The plaintiffs’ claim is dismissed.”

The other two Justices of the court who heard the appeal with him also agreed.

The appellants, thereafter filed their appeal in this court on four grounds.

They later filed a brief of argument in which they elicited two issues for the determination of the court in this appeal which read:-

“1. Whether the Court of Appeal was right when it held in favour of the Respondents as against the Appellants as regards the findings in favour of the appellants by the learned trial judge as to the root of title of the parties when the roots of title as pleaded and as given in evidence by the Respondents were different and fundamentally irreconcilable while the root of title given by the appellants was established according to law.

2. Whether the Court of Appeal was right when it held in effect that there was no evidence before the learned trial judge upon which he could have lawfully come to the conclusion that the appellants had established their ownership of the land in question and therefore entitled to the reliefs which they claimed.”

The Respondents also filed a written brief in which they formulated the following issues:- .

“(1) Whether the Court of Appeal was right when it held that the plaintiffs’ Appellants neither pleaded nor gave evidence of traditional History on which they solely relied thereby dismissing their claims.

(2) Whether the Appellants can rely on the weakness of the defendants’ case, in the instant case to prop up their own case.”

Looking at the issues raised by the parties, it appears to me that the two issues of the Respondents can easily be subsumed and argued with those of the Appellants and I intend to treat them accordingly.