Peter Okonkwo & Ors. V. Bernard Okonkwo & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

FRANCIS FEDODE TABAI, J.S.C

This action was commenced at the Onitsha Judicial Division of the High Court of Anambra State by a writ of summons dated the 26th of April, 1989 and filed on the 2nd of May, 1989. The Plaintiffs were the Respondents at the Court below and also the Respondents herein. The Appellants who were also the Appellants at the court below were the Defendants. In paragraph 36 of the Amended statement of claim the Plaintiffs/Respondents claimed against the Defendants/Appellants as follows:-

1. A declaration that the Plaintiffs are entitled to the grant of Customary Right of Occupancy in respect of the piece or parcel of land known as and called “NKPU Ocha Owelle land”‘ which is situate in Ire village Umuoji, the annual rental value of which is about N50.00 (fifty naira) only.
2. N2,000.00 (two thousand naira) only general damages for trespass on the said land.
3. Perpetual injunction restraining the Defendants, their servants, gents, privies or workers from committing any further acts on the said Plaintiffs Nkpu Ocha Owelle Ire land.

The trial involved the testimony of four witnesses for the plaintiff’s case and three witnesses for the defendant’s case. In his judgment on the 27th day of July, 2000 C.U. Ononiba C.J granted the claim in its entirety.

Dissatisfied, the Defendants proceeded on appeal to the Court of Appeal. In its unanimous judgment on the 24th of July, 2003 the appeal was dismissed.

They are still not satisfied and have therefore come on appeal to this Court.

The parties have through their counsel filed and exchanged their briefs of argument. The Appellants’ Brief was prepared by C. O. Anah and it was filed on the 5th of December, 2006. And the Appellants’ Reply Brief was prepared by G.C Igbokwe. The Brief of the Respondents’ was prepared by Chief M.O.C. Okoye and it was filed on the 9th October, 2007.

In the Appellants’ Brief Mr. C.O. Anah formulated the following four issues for determination:

1. Whether from the judgment of the High Court it was right for the Court of Appeal to say that the Plaintiff/Respondents proved their case on their traditional history upon which they solidly based their case
2. Whether or not Exhibit “B” the survey plan of the Plaintiff/Respondents was properly admitted having not been registered at the time it was supposed to and in view of section 91(3) of the Evidence act 1990. If not properly admitted what is its effect in law and on the judgment.
3. Whether the contradictions both in the plan and evidence of the plaintiffs/Respondents were not enough for their case to be dismissed.
4. Whether or not the Court of Appeal having inadvertently struck out an issue on the ground that it was not based on any ground of appeal could then turn round to write a judgment based on the fact that there was such a ground of appeal. And if the answer is in the affirmative was the Court of Appeal right in its view that the High Court had jurisdiction to entertain and determine this case.

In the Respondents’ Brief however Chief M.O.C. Okoye formulated a single issue for determination. The issue is whether the court of Appeal was not right to hold that the trial court adequately considered the evidence and drew proper inferences and conclusions, the Defendants/Appellants having failed to discredit any particular piece of evidence by the Respondents on any of the five factors posited by MOGAJI vs ODOFIN (1978) 4 SC 91 at 94-95

In the alternative to this single issue he formulated another issue which is whether having regard to the concurrent findings of facts by the two Courts below, the Appellants have shown such special circumstances of perverse findings to warrant interference by the Supreme Court

In my consideration the whole appeal revolves round the single question of proper evaluation under which all other questions of the admissibility of Exhibit ‘B’ and the effect of the contradictions can be adequately accommodated. I would therefore adopt the Appellant 1st issue and the Respondents’ only issue as the issue that effectually determines the appeal.

The single question is whether the concurrent findings of fact by the two courts below are supported by the evidence on record.

It was the submission of learned counsel for the Appellants that since the Appellants’/Respondents’ case was built on traditional history and the judgment of the trial court was not founded on traditional evidence their case ought to have been and should be dismissed. It was further argued that the evidence especially that of their star witness PW2 was one within his living memory and therefore that the principle in KOJO vs BONSIE did not apply.

Since the case of the Respondents was based on traditional history they cannot switch over to evidence of recent memories’ counsel argued.

With respect to Exhibit ‘B’ it was the submission of learned counsel for the Appellants that the document ought to have been registered and that same not having been registered it was inadmissible and ought to have been expunged. It was further contended that the use of the document adversely affected the Appellants and thereby occasioned a miscarriage of justice.