Sule Anyegwu & Anor V. Aidoko Onuche (2009)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C 

This case originated from the Upper Area Court, Idah, in Kogi State (trial court). The plaintiffs cause of action before the trial court reads as follows:

“seeking court assistance to restrain the defendant for (sic) further collecting (sic) of my stool land tributes called ogbajele.”

When the cause of action was read and explained through the assistance of an interpreter, to the two defendants, each denied liability. That was on the 5th day of June, 1996. This exercise was repeated on the 11th day of July, 1996 as there was a reconstitution of the panel members of that court. Each of the defendants maintained that he was not liable. Trial commenced on the 12th of November, 1996 with the plaintiff and three witnesses testifying. The 1st and 2nd defendants testified. Two other witnesses were called by the defendants. There was a visit to the locus in quo by the court, the parties and their witnesses. That was on 5/9/97. Thereafter, the parties addressed the trial court. On the 24th day of October, 1997, the panel members of the trial court delivered the court’s judgment by a majority while one of the members i.e. the chairman of the panel dissented. In the majority judgment, the trial court found that the plaintiff was able to prove his case and judgment was entered in his favour. The land in dispute i.e. Ogbajele land was awarded to the plaintiff and his family as “Family Stool Land.” The trial court also restrained the defendants, their agents, servants and privies from collecting tributes from anyone on Ogbajele land. Dissatisfied with the trial court’s judgment (majority judgment) the defendants appealed on seven grounds of appeal to the High Court of Justice of Kogi Sate, appellate division, holden at Idah. There was also filed by the plaintiff a notice of cross appeal against the dissenting judgment. In course of dealing with the preliminary matters, the High Court struck out grounds D, E and F of the consolidated notice of appeal dated 24/11/97 and the cross appeal as they raised complaints against the dissenting judgment. Having considered the remaining grounds of appeal the learned judges of the High Court allowed the appeal and set aside the majority decision with a dismissal order of the plaintiff’s case before the trial court. Aggrieved by the High Court’s decision, the plaintiff/respondent appealed to the Abuja division of the Court of Appeal (court below). After reviewing the whole case, the court below allowed the appeal and set aside the judgment of the High Court. It restored and affirmed the majority decision of the trial court.

Dissatisfied further, the defendants/respondents/appellants filed their notice of appeal to this court. The notice of appeal contained two grounds of appeal. The parties filed and exchanged their respective briefs of argument.

The appellants distilled three issues for determination viz:

1. “whether the finding of fact in respect of traditional evidence was perverse or unsound to warrant the appellate court Intervention.
2. Whether the finding of fact in respect of “exhibit 1st made by the Trial Upper Area Court was perverse or unsound.
3. Whether the High Court (Appeals Division) was right to have reassessed and reevaluated “exhibit 1st tendered in this case.”

The respondent filed a notice of preliminary objection which he argued in his respondent’s brief of argument. He then formulated the following issues:

“1. Whether there was evidence to support the Court of Appeal preference of the trial Upper Area Court’s Judgment on traditional history as against the High Court’s position on same; such as to entitle the respondent to the judgment of the Court of Appeal.

2. Whether exhibit 1 has the effect and force of estoppel per rem judicata on the present appeal.”

On the date this appeal was heard, i.e. 28/10/08 learned counsel for the appellant applied to abandon issue no. 1 of the issues formulated for consideration. appellant’s issue no.1 and its corresponding arguments were accordingly struck out.

I think the learned counsel for the appellant, having been alerted by Dr. Mosugu, of counsel for the respondent, in his notice of preliminary objection, took a wise decision to abandon issue one and its arguments so as to avoid multiplicity of issues arising from the same ground of appeal. But the grounds upon which the preliminary objection was based alleged also that all the issues of the appellant were not an attack against the decision of the Court of Appeal but were based on matters treated in the High Court of Kogi State. This objection is well noted. However, although the learned counsel for the appellant did not file a reply brief in answer to the points raised by the preliminary objection, the courts are always in favour of considering cases on their merits rather than on technicalities of the law. Such a brief of argument which fails to adhere to the format of a well written brief can at best be taken to be a badly written brief out of which the court should do its very best to understand it in order to resolve the relevant issues arising there from on their merits. This is the way I take the appellant’s brief and I shall give it the consideration it deserves. See: ACME Builders Ltd. v. KSWB (1999) 2 NWLR (Pt.590) 288.

Issue No.2 of the appellant’s brief is on the trial court’s finding in respect of ‘exhibit 1′. Learned counsel for the appellant submitted that the finding of fact in respect of the said exhibit was perverse, unsound and it amounted to a miscarriage of justice. Learned counsel argued that the trial court unequivocally declared in a ruling that the land was clearly part of the land in dispute. This position was however, radically reversed by the trial court without any reason. The trial court was bound to give reasons for its decision. Learned counsel cited s.132 (1) of the evidence act to argue that the defendant produced and tendered the record of proceedings which was duly certified in order to prove previous proceedings or judgment. To require evidence to corroborate and confirm the authenticity, genuineness or correctness of record of proceedings would be tantamount to acting outside the provisions of the law thereby occasioning miscarriage of justice. He submitted further that exhibit 1 is an evidence that richly deserves a high probative value to establish the fact that the appellants have by this exhibit an evidence of title to the land. Learned counsel argued further that the denial of the plaintiff’s witnesses were made before the exhibit was tendered and admitted in evidence. In the cause of admitting the said exhibit the trial court declared that the exhibit was relevant to the case. The trial court, he submitted failed to carefully examine, understand and appreciate exhibit 1 to enable it resolve the issues before it in accordance with the law. Where a trial court fails to evaluate evidence and findings of fact, it tantamount to an invitation of the appellate court to make its own findings from the evidence, i.e. Exh. 1. He cited Adeleke & Ors v. Iyande & Ors (2001) 13 NWLR (Pt.729) 1 at 20 B-D. Learned counsel urged this court to hold that the findings of fact made by the trial court on exhibit 1 were perverse or unsound.

In his Issue No.1, learned counsel for the respondent made the following submissions: that acts of recent possession/ownership were demonstrated by the respondent. These included the investiture of the Madaki of Ogbajele who was physically presented or paraded during the visit to the locus in quo. Further, 2nd appellant’s shaky story that he was given four pieces of land by the Attah Igala was contradicted by the same Attah who testified as DW2 and who said that he gave 2nd defendant two pieces of land. Learned counsel argued further that the traditional history of the defendants was found to be complete falsehood and unreliable. Learned counsel called in aid the provision of section 44 of the evidence act.

Appellants issue No. 3 is on the High Court’s reevaluation and reassessment of exhibit 1 tendered before the trial Upper Area Court. This according to the learned counsel for the appellants was done by the High Court because the finding of fact in respect of exhibit 1 made by the trial court was perverse or unsound. The learned counsel urged this court to uphold the decision of the High Court as the decision of the trial judge was not based on credibility of the witnesses but also on making findings on such important document as exhibit 1. He submitted that the High Court on appeal and this court has the right to reverse the decision of a lower court if satisfied that same is wrong in law. He cited the case of Nteogwuile v. Otuo (2001) 6 SCNJ 231 at p. 233.

On the issues of res judicata treated under this issue the learned counsel for the appellants contended that the parties in this case are the same as exhibit 1 and the subject and subject matter is the same. The trial court he argued had drawn wrong conclusion from exhibit 1. The trial court had also taken an erroneous view of exhibit 1 and the finding did not flow from the content of exhibit 1. He cited and relied on the case of Onwugbufor & 2 Ors. v. Okoye & 3 Ors. (1996) 1 SCNJ 1 at pp. 33. He urged this court to hold that the High Court appellate division was right to have intervened and made necessary findings as it did to exhibit 1. Learned counsel submitted finally that exhibit 1 being a previous judgment of a court can either be considered as estoppel per rem judicata or properly constitutes an act of ownership and possession. He relied on the case of Chief Akpan & Ors. v. Chief Otong & Ors. (1996) 12 SCNJ 213 at page 222.