Nwopara Ogbogu & Ors V Egbuchiri Ugwuegbu (2003)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C.

This appeal is against the judgment of the Court of Appeal, Port-Harcourt Division. It is hoped that the litigation between the parties will finally end the conflicts over land in that area between the parties. Litigation between the parties started with suits Nos. HOR/45/75 and HOR/68/75 and which eventually ended separately in this court. The appeal under consideration is the third one between them. This was commenced as suit No. HOR/118/92 at the High Court, Orlu. The claim before that court was instituted by the plaintiffs now the respondents, against the defendants who are the appellants in this appeal.

With leave of the trial High Court sitting at Orlu, an amended claim was filed and which read thus: –

“1. The plaintiffs jointly and severally for themselves and on behalf of the Ndimbara village claim against the defendants jointly and severally the sum of Five Million Naira (N5m) as exemplary damages for trespassing into Ndimbara land, land of the plaintiffs situate at Ndimbara Village, Eziama Obaire Autonomous Community of the Nkwerre Local Government Area within jurisdiction.

2. Perpetual injunction restraining the defendants, their agents, servants, representatives and successors in title from entering into the Ndimbara land in dispute.

DATED THIS 10th day of May, 1993.”

Following the order for pleadings, pleadings were filed and exchanged by the parties. At the hearing, the respondents called five witnesses in support of their case, while the appellants called two witnesses. Several documentary exhibits were also tendered and admitted during the trial. With the conclusion of the hearing of oral evidence, learned counsel for the parties addressed the court. The learned trial Judge then adjourned to deliver a considered judgment. By the said judgment, the claims of the plaintiff/respondents were dismissed.

As the respondents were dissatisfied with the judgment of the trial court, they appealed to the court below, and the appeal was successful in that court. The defendants/appellants, who lost in the court below, have now appealed to this court. Pursuant thereto, the defendants/appellants by their original notice of appeal filed three grounds of appeal with particulars to each of them. But with the leave of court, an amended notice of appeal with ten grounds of appeal and their particulars were filed for the appellants by their learned counsel. The grounds of appeal without their particulars read as follows: –

“1. Both the trial court and the Court of Appeal erred in law in entertaining respectively suit No. HOR/118/92 and the appeal therefrom No. CA/PH/64/96 when neither the trial court nor the Court of Appeal had jurisdiction to hear the suit or the appeal.

2. The Court of Appeal erred in law in relying on its conclusion in the appeal No. CA/E/1098/88 as per the judgment of His Lordship, the Honourable Kolawole, JCA, in which it held that the present defendants appellants were estopped per rem judicatam from litigating over the land in dispute in suit No. HOR/68/75 to set aside the judgment of the learned trial Judge in the present suit No. HOR/118/92.
3. The Court of Appeal misdirected itself in law in its application of the decisions in Omoni v.Biriyah (1976) 6 SC 49 and Balogun v.Akanji (1988) 1NWLR (pt. 70) 301.
4. The Court of Appeal misdirected itself in law and in the following passage of its judgment:

In other words the present respondents lost as defendants in suit No. HOR/47/75 and as plaintiffs

in suit No. HOR/68/75.

The combined effect is that as regards the land in dispute in the present appeal which is virtually what the two earlier suits covered taken together, the present respondents have very unsteady legs to stand on.

5. The Court of Appeal misdirected itself in law in the following passage of its judgment:

The respondents can hardly be allowed to assert now that the land in dispute is in their village. That will amount to reopening their claim to customary right of occupancy, which claim was dismissed earlier as between the same parties.

6. The Court of Appeal misdirected itself in law in the following passage of its judgment:

In the present case the respondents did worse than previously. They have nothing by way of what they can point to as forming the basis of their claiming that they have a better title than the appellants in respect of the land in dispute. There is no assertion of any traditional history; no evidence of long, numerous and positive acts of possession.

They purported to have conceded the area verged brown in their survey plan exhibit H (now exhibit CA/3) to the appellants. I do not know how that can be. You cannot concede, as if a former owner, a portion of a larger parcel of land you never owned or proved to have owned.