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:-
- 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.
- N2,000.00 (two thousand naira) only general damages for trespass on the said land.
- 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:
- 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
- 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.
- Whether the contradictions both in the plan and evidence of the plaintiffs/Respondents were not enough for their case to be dismissed.
- 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.
On alleged contradictions in the case of the plaintiffs/Respondents, learned counsel for the Appellants referred to Exhibits ‘A’, ‘B’ and ‘D’ all plans made by the Respondents and contended that they established the contradictions in their case as to the identity and extent of the land in dispute. It was specifically pointed and that Exhibit ‘D’ though made by the Respondents was tendered in evidence by the Appellants to contradict their case.
Still on contradictions it was the contention of learned counsel for the Appellants that all the evidence for the Respondents about a 1934 war and the boundary altered or expanded were a contradiction to their case founded on traditional history.
With respect to issue one of the issues formulated before the court below, learned counsel for the Appellants launched a two-pronged attack on the judgment.
He argued firstly that there was a ground of appeal from which the said issue one was distilled and it was wrong therefore for the court below at Page 233 to strike out the said issue for incompetence.
It was counsel’s further argument that having struck out the issue for incompetence the court was ‘functus officio’ and it was therefore wrong for the court to deliberate upon and resolve the issue in its judgment.
Learned counsel again referred to the fact about the commencement of the action at the Onitsha High court of Anambra State in 1989 and the fact that the land in dispute is situated in Umuoji in Idemili Local Government Area of Anambra State a non-urban area and submitted that by virtue of the state of the law at that time as decided in SALATI vs SHEHU (1986) 1 N.W.L.R (Part 15) 198; SADIKWU vs DOLORI (1996) 5 N.W.L.R (Part 447) 151; OYENIRAN vs EGBOTOLA (1987) 5 N.W.L.R (Part 504) 122 and NELSON vs EFFANGA (1998) 8 N.W.L.R (Part 563) 701 the Onitsha High Court had no jurisdiction to entertain the suit, the later position of the law as decided in ADISA vs OYINWOLE notwithstanding. Learned counsel submitted that a court which had no jurisdiction in 1989 cannot turn round to acquire jurisdiction in October, 2000 when the trial High Court delivered its judgment. For these submissions counsel relied on ALAO vs AKANO (1988) 1 N.W.L.R (Part 71) 431 and EMENIMEYA vs OKORJI (1987) 3 N.W.L.R (Part 59) 6.
The substance of the arguments of Chief M. O. C. Okoye in the Respondents’ brief is as follows: On the question of evaluation it was the submission of learned counsel that the Court of Appeal was right in holding that the trial court adequately considered the evidence adduced and drew proper references and conclusions, the Appellants having failed to discredit any particular evidence of the Respondents on any of the five factors enunciated in MOGAJI vs ODOFIN (1978) 4 SC 91 at 94-95. Learned counsel quoted copiously from the judgment of the Court of Appeal and submitted that the findings are supported by the evidence on record. It was further submitted that the findings, being the concurrent findings of the two courts below, cannot be interfered with by this court unless it is shown that they are perverse. This perversity, counsel contended, the Appellants have failed to establish. For this submission learned counsel relied on ALHAJI ABDULKADIR DAN MAINAGGE VS ALHAJI ABDULKADIR ISHAKU GWAMNA (2004) 7 SC (Part II) 86 at 95-96 and 97 and DUROSARO vs AYORINDE (2005) 8 N.W.L.R (Part 927) 407. Learned counsel urged finally that the appeal be dismissed.
In the Appellants’ Reply Brief, G. C. Igbokwe argued firstly that the issues formulated by the Respondents were not based on the grounds of appeal and were therefore incompetent and urged that they should be struck out. For this submission he relied on PATRICK D. MAGIT vs UNIVERSITY OF AGRICULTURE MAKURDI (2006) 4 W.R.N 86, ADAH vs ADAH (2001) 14 W.R.N. 74; ACHAI KOKORO-OWO vs. LAGOS STATE GOVERNMENT (2001) 24 W.R.N 61 and A. M. ADELEKE vs ALHAIA ROJI (2003) 2 W.R.N 43. Learned counsel submitted further that the principles in MOGAJI vs ODOFIN (1978) 4 SC 91 at 94-95 do not apply to this case.
It was further contended that since both parties relied on aspects of traditional history within living memory the principle in KOJO II vs BONSIE (supra) does not apply.
Learned counsel referred to the statement of the court below at Page 253 and argued that the mere assertion of the court’s preference of the Respondents’ traditional evidence to that of the Appellants was no evidence of proper evaluation. In support of this submission learned counsel cited CHUKWU vs NNEJI (1990) 6 N.W.L.R (Part 156) 363 at 375 and EZENNAH vs ATTA (2004) 17 W.R.N 33 at 34. It was finally urged that the appeal be allowed.
The foregoing represents the substance of the arguments of the counsel for the parties. As I indicated earlier on in this judgement the entire case revolves round the issue of whether or not there was proper evaluation. In other words the single question is whether the judgment of the trial court and affirmed by the court below is supported by the totality of evidence on record The Respondents answered this question in the affirmative.
The evaluation of evidence is pre-eminently the duty of the trial court which alone has the singular benefit of seeing and hearing witnesses.
An appellate court which does not enjoy this singular opportunity of seeing and hearing witness would not therefore ordinarily interfere with findings of facts of the trial court. An appellate court will therefore only interfere with findings of fact of the trial court if it is established that the findings are not supported by the totality of evidence on record. The principle has been pronounced upon and applied in numerous cases. See OBODO vs OGBA (1987) 2 N.W.L.R (Part 54) 1; OGBECHIE vs ONOCHIE (1988) 1 N.W.L.R (Part 70) 370 NNAJIOFOR vs URANU (1985) 2 N.W.L.R (Part 9) 686.
This principle of non-interference with findings of a trial court by an appellate court is even more stringently applied when the findings are based on credibility or veracity of witnesses. See OKONJI vs STATE (1987) 2 N.W.L.R (Part 53) 659 ONUOHA vs STATE (1989) 2 N.W.L.R (Part 101) 23. On this issue the statement of Akintan JSC in ALHAJI ABDULKADIR DAN MAINAGGE vs ALHAJI ABDULKADIR ISHAKU GWAMNA (2004) 7 SC (Part 11) 80 relied upon by the Respondents is quite apposite. This court, per Akintan JSC at Page 97 stated:
“As already stated above the trial court accepted the evidence presented by the Plaintiff (now respondent) at the trial.
The Court of Appeal also did the same. The law is settled that evaluation of evidence is primarily the function of the trial judge. Interference by an appellate court could only occur where and when he fails to evaluate such evidence at all or he fails to do so properly. Where therefore the court has satisfactorily performed its primary function of evaluating the evidence and correctly ascribing probative value to it, an appellate court has no business interfering with its finding on such evidence, see ABISI vs EKWEALOR (1993) 6 N.W.L.R (Part 302) 643; ATOLAGBE vs. SHORUN (1985) 1 N.E.L.R. (Part 2) 360; OBODO v. OGBA (1987) 2 NWLR (Part 54) 1. Similarly the Supreme Court will not ordinarily disturb concurrent findings of fact made by the High Court and the Court of Appeal unless a substantial error apparent on the face of the record of proceedings is shown or when such findings are perverse…..”
As I said the above statement is apposite to the facts and circumstances of this case and I think I should adopt same in its entirety.
I examined the evidence of the parties, the address of their counsel and the judgment of the learned trial Judge G. U. Ononiba C. J. especially from Page 146 to Page 155 and I am satisfied that he thoroughly evaluated the evidence on record. I cannot therefore fault the finding by the court below to the effect that the trial court properly evaluated the evidence. The Appellants did not point out a single finding of fact that is not supported by the evidence on record. There is nothing to impeach the concurrent findings of the two courts below and this court has therefore no duty whatsoever to interfere with the decision of the two courts below.
In the circumstances, I have no alternative but to affirm the concurrent decisions of the two courts below. In the event, I hold that there is no merit in the appeal which is accordingly dismissed.
I assess the costs of this appeal at N50, 000.00 (fifty thousand naira) only against the Appellants in favour of the Respondents.
SC.296/2003