Chief Nicholas Nwachukwu & Ors. V. Mr. Nwagbara Dimgba & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

This is an appeal against the decision of Abia State High Court sitting at Obehie delivered on 30th March, 2006. The learned trial judge dismissed the claim of the Appellants, as Plaintiffs, and gave judgment to the respondents, as defendants, in their counter-claim.

The Appellants, as plaintiffs, had sought the following reliefs against the Respondents in their amended statement of claim. That is-

1. A declaration that the plaintiffs are jointly entitled, with the defendants, to the ownership, use and occupation of the parcel of land known as and called “EGBELU ETITI” situate at Obehie Asa in the Ukwa West L.G.A. of Abia State.
2. An order of perpetual injunction restraining the defendants by themselves, their privies, successors in title, agents or servants from over disturbing or in any manner whatsoever interfering with the plaintiffs, right to joint ownership, possession, use and occupation of the said “EGBELU ETITI” land with the defendants.

The 1st and 2nd sets of defendants/respondents filed a joint statement of defence wherein they set up a counter claim, claiming three reliefs, namely –

a. A declaration that the defendants are persons exclusively entitled to the customary ownership, use and occupation of ALL THAT parcel of land known as and called EGBELU UMUIBE & UMUADA including the EGBELU ETITI situate at Obehie-Asa in Ukwa West Local Government Area of Abia State.

b. A declaration that Umuada village of Obehie Asa in Ukwa West Local Government Area of Abia State, the 2nd set of Defendants hereof, is in the exclusive possession and use of that part of “EGBELU-UMUIBE & UMUADA” land known as and called “UKWU – UDA” situate at Obehie Asa in Ukwa West Local Government area within jurisdiction.

c. An injunction restraining the plaintiffs, their servants and/or agents from interfering with the rights of the defendants or claiming interest whatsoever over that parcel of land known as “EGBELU UMUIBE & UMUADA” or any part thereof including “EGBELU ETITI” and “UMUADA” lands situate at Obehie Asa in Ukwa West Local Government Area of Abia State within jurisdiction.

The two parcels of land being claimed by the parties are EGBELU ETITI land, and UMU-UDA land. In respect of EGBELU ETITI land the parties are ad idem that the parcel of land is in dispute. They all agreed in their respective pleadings that EGBELU ETITI land is a part of a larger tract of land called EGBELU, and that EGBELU ETITI is a communal land. The Appellants, as plaintiffs, averred that EGBELU ETITI had, from time immemorial, been jointly owned, used and cultivated by all the parties. The Respondents, on their part, assert that EGBELU ETITI “is the communal land of the defendants.”

The parties know the disputed EGBELU ETITI Land. The PW.1’s description of the land at page 92 lines 28 – 32 was not challenged or controverted. That is –

On the north, the land is bounded by the land of the Plaintiffs not in dispute; on the bottom (south) the land of Umudobia [not in dispute]; on the right [East] is bounded by “Ukwu Uda”; and the left (West) is the land of the 1st set of defendants [Umuibe] not in dispute.

The identity of land can only be an issue where the parties either in their pleadings, or cross-examination, or evidence raise it. See ALABI v. OLOYA [2001] 6 NWLR [pt.708] 37; OSAZUWA v. ISIBOR [2004] 3 NWLR [Pt.859] 16. The identity of EGBELU ETITI is not an issue in this appeal.

As regards UKWU UDA Land the defendants/respondents acknowledge in their statement of defence that until the year 2000 ” the plaintiffs and the 2nd set of defendants continued to farm the land UKWU UDA jointly, and that the plaintiffs and the 2nd set of defendants were known and called UMUADA village by Obehie town people”. The dispute over UKWU UDA land started with a dispute over the appointment of Linus Nwachukwu (the second of the 2nd set of defendants) as village head of Umuada village. In 2002 the Appellants, wanting to be identified with their ancestor Nwala by affidavit and newspaper publication (vide Exhibits C and D) changed the name of their portion of Umuada village to Umuala. The change of name was regarded by the defendants as an act of secession by the Plaintiffs. In the amended statement of claim the plaintiffs/Appellants aver that in the year 2002 the respondents decided to exclude them from the joint ownership of the lands they jointly own with the Respondents. That is the immediate cause of action.

Still in respect of UKWU UDA Land, the defendants/Respondents in their joint statement of defence and counter claim aver –

(xxvii). The defendants state that the 3rd plaintiff and his Obimala Obehie Town Council were looking into the complaint of the plaintiffs, the same plaintiffs summoned the 2nd set of defendants before “Agu-Lorre” juju in Ogoni, Rivers State, demanding the 2nd set of defendants to take an oath before the said juju that the 2nd set of defendants and not the plaintiffs are the head of Umuada village and consequently the legitimate owners of lands belonging to the village…..

(xxix) The plaintiffs accepted the decision of the Chief Priests of “Agu-Lorre” shrine and stated before the priests and other people present in the arbitration that if the 2nd set of defendants took the oath and survived the customary one year of the oath taking that the 2nd set of defendants should take all lands and palm trees being jointly owned by the plaintiffs and the 2nd set of defendants but if otherwise the 2nd set of defendants should vacate for them such lands, economic trees and crops.

It is further averred that the 2nd set of defendants took the oath and that on their surviving the oath, after one year, they became “the exclusive owners of the “ukwu uda” and other lands in and around Uzukwu the home stead of the plaintiffs and 2nd set of defendants”. As could be gleaned from the foregoing the case of the 2nd set of defendants/respondents, as it pertains to UKWU UDA land, is not rooted on traditional history. Rather, it is founded on they are becoming exclusive owners of the land upon oath taking and their surviving the same after one year. In respect of EGBELU ETITI land the defendants/Respondents, particularly the 1st set of defendants/Respondents, maintain that their ancestor, Okee, alone deforested the land. On their part, the plaintiffs/Appellants insist that the land was jointly deforested by Elechita, their ancestor, and okee, the defendants’ ancestor, and that since then EGBELU ETITI land had remained the joint property of the descendants of Elechita and Okee.

At the trial the Appellants, as plaintiffs, called three witnesses, including the 1st plaintiff, and two boundary men to establish their claim to joint possession and ownership of EGBELU ETITI land. They also tendered documents, including Exhibits E and F, to show acts of joint cultivation, ownership and occupation of EGBELU ETITI land. They deny that the 2nd set of defendants/Respondents took oath at their instance in respect of UKWU UDA land.

In respect of EGBELU ETITI land there was no pleading alluding to any of the parties being a customary tenant of the other. It was only in respect of UKWU UDA land there was an allegation by the defendants that the matriarchs of the plaintiffs/Appellants and 2nd set of defendants/Respondents lived on and cultivated the land together and that on their deaths their descendants continued to farm the land together until the year 2000. None of the parties averred that any of them was a customary tenant of the other.

Five witnesses, including chief Felix Ngeremuka (DW.1), testified for the defence. DW.1 is the first of the 2nd set of defendants/Respondents. Three of the remaining four defence witnesses were boundary men from the neighbouring communities. The DW.4, said to be a messenger of the Ogoni Juju shrine, testified on the oath taking by the 2nd set of defendants/Respondents. He, however, did not know in respect of which particular land the oath was taken.

At the close of the evidence the learned trial Judge ordered written addresses to be filed and exchanged, which order the parties, through their counsel, complied. In his considered judgment delivered on 30th March, 2006 the learned trial judge dismissed plaintiffs/Appellants’ case, and upheld the defendants/Respondents’ counter-claim on five broad grounds namely –

i. That while the defendants traced their roots convincingly to their progenitor, Okee, the plaintiffs, apart from stating that their progenitor, Elechita, jointly deforested the land with Okee, failed to trace their roots to the said Elechita.

ii. That the plaintiff’s oral evidence was at variance with their pleading. And that while they pleaded that Elechita and Okee deforested the land, PW.1 testified that Elechita and his son, on one hand, and Okee and his son on the other hand, jointly deforested the land.

iii. That the plaintiffs pleaded their traditional history belatedly in their reply to the statement of defence and counter-claim, which according to the trial judge, came too late to be believed.

iv. That the plaintiffs were implied customary tenants of the defendants and since they denied their overwords title they were liable to order of forfeiture; and that as such there was no basis for their claim to joint ownership of the disputed land.

v. That the plaintiffs did not dispute Exhibit G – the defendants sketch plan of the land.

Aggrieved by the decision of the trial court, the plaintiffs/Appellants, on 19th April, 2006 lodged this appeal on six (6) grounds of appeal. They are hereby reproduced without their particulars.

1. The learned trial Judge erred in law in entering judgment without making recourse to the written address of counsel to the plaintiffs.
2. The trial court erred in law in rejecting the traditional evidence led by the Appellants in proof of their joint title to the land in dispute.
3. The learned trial Judge erred in law in holding that the Appellants were the customary tenants of the Respondents.
4. The learned trial Judge erred in law in entering judgment in terms of their counter-claim.
5. The learned trial Judge erred in law in relying totally on Exhibit G as to the boundaries of the land in dispute.
6. The judgment is against the weight of credible evidence.

From the six grounds of appeal, Appellants’ counsel identified four issues for determination. They are, at pages 4 and 5 of the Appellants briefs as follows –

1. Whether the failure of the learned trial Judge was (sic) in delivering his judgment without making recourse to the written address of the Appellants’ counsel did not violate the Appellants’ constitutional right to fair hearing. (from Ground 1).
2. Whether the learned trial judge was right in rejecting the traditional evidence led by the Appellants in proof of their joint user and title to the land in dispute. [from Ground 2]
3. Whether the error of the learned trial Judge in holding that the Appellants were customary tenants to the Respondents did not occasion a miscarriage of justice against the Appellants. [From Ground 3].
4. Whether the judgment of the trial court is sustainable, having regard to the quantum of evidence led at the trial. (from Grounds 4, 5 and 6]

Chief Nwanosike for the Respondents in the Respondents’ Brief submitted that from the grounds of appeal only three issues arise for determination of the appeal. That is –

i. whether it is the law that failure to specifically refer to the addresses of counsel in a judgment amounts to breach of the rule of fair hearing thus vitiating the judgment?

ii. Whether the trial court was not right in dismissing the case of the Appellants having regard to the pleadings and evidence in the case?

iii. Whether the learned trial judge was not right in upholding the Respondents’ counter-claim and giving judgment thereof?

It appears to me that the Appellants’ issues 2 and 3, and the respondents’ issues (ii) and (iii) can conveniently be taken under the Appellants’ issue 4. I will take the issues together now. In so doing I will address them as they relate to EGBELU ETITI and UKWU UDA lands separately. Appellants’ Issue 1 and the Respondents’ [i] which are identical will thereafter be taken, if needs be.

As I earlier pointed out in this judgment the case of the defendants, particularly the 1st set of defendants, as it pertains to EGBELU ETITI was posited on traditional history. They pleaded that it was their ancestor Okee, who alone deforested the disputed land. On this the plaintiffs/Appellants, replied that the EGBELU ETITI land was jointly deforested by Okee, the ancestor of the defendants, and their own ancestor, Elechita. The plaintiffs/Appellants further averred that since the deforestation, and until recently, the parties had been in joint possession, occupation and ownership. The totality of their oral and documentary evidence, including Exhibits E and F, is directed to establishing the fact of joint ownership, possession and occupation of EGBELU ETITI land with the Respondents. The PW.1 who gave the traditional evidence on behalf of the plaintiffs stated in his evidence-in-chief that –

It is not true, as pleaded by the 1st set of defendants that the land is not owned in common with us. We own it in common with them and farmed the same together until the year 2002. The land is not called EGBELU UMUIBE UMUADA as pleaded by the defendants. It is not true that the land in dispute is part of EGBELU UMUIBE UMUADA. EGBELU land is owned by various villages including the defendants 1st and 2nd. It is not true that the land in dispute was deforested by defendants’ fore father, Okee, as they pleaded. The land in dispute was rather deforested by Elechita and his son, Worguala and Okee and his children. Elechita is the plaintiffs ancestor; while Okee is the 1st set of defendants’ ancestor.

The lengthy and exhaustive cross-examination of PW.1 did not discredit the PW.1 on the traditional history as to how Elechita and Okee, and their children deforested EGBELU ETITI land. It also did not discredit the PW.1 that the plaintiffs/Appellants are descendants of Elechita, while the 1st sets of defendants/Respondents are descendants of Okee. No question whatsoever was put to PW.1 as to Elechita and his son, Worguala jointly with Okee and his children deforesting Egbelu land.

In both their amended statement of claim and the Reply to statement of defence the plaintiffs/Appellants consistently averred that they jointly own EGBELU ETITI with 1st set of defendants/Respondent from the moment it was deforested by their respective ancestors jointly; that the joint ownership and occupation of the land persisted until 2002 when the 1st set of defendants/Respondents wrongfully excluded them. In paragraph 3 of their Reply to the statement of defence the plaintiffs/Appellants categorically aver that –

The Egbelu Etiti land was jointly deforested by the plaintiffs ancestor Elechita and Okee, the ancestor of 1* set of defendants because of a powerful juju spirit known as MBAGBU which made it impossible for either Elechita or Okee to deforest it individually and exclusively.

The trial court did not believe PW.1’s evidence on the traditional history for a number of reasons, namely:

i That PW.1’s evidence that Elechita and his son together with Okee and his children jointly deforested EGBELU ETITI land was at variance with their pleadings that Elechita and Okee deforested EGBELU ETITI land.

ii. That the plaintiffs’ evidence of their ancestor deforesting the land came too late to be believed.

iii. The plaintiffs did not link themselves to the said Elechita.

iv. That the plaintiffs’ traditional history was not as cogent as that of the defendants.

In respect of EGBELU ETITI land the plaintiffs/Appellants and 1st set of defendants/Respondents relied on traditional history at the trial court. In addition the plaintiffs/Appellants pleaded joint possession and led evidence in that direction. The Appellants’ counsel submitted that the learned trial judge erroneously rejected the traditional history of PW.1 and that there are abundant evidence of acts of recent possession including Exhibits E and F to bolster the plaintiffs/Appellants’ traditional history, and that the defendants/Respondents having admitted joint possession of the land until 2002 the onus was on them to prove that they were not joint owners. For the Respondents it was submitted that the learned trial judge, being not satisfied with the traditional history of the Appellants, had no justifiable reason to resort to testing one traditional history against another by resorting to acts in recent years. The learned counsel for Respondents seems, in view of the peculiar circumstance of this case, to misconceive the principle in KOJO v. BONSIE (1957) 1 WLR 1223 approved in BIARIKO v. EDEH-OGWULE [2001] 4 SCNJ 332 at 351 that is –

It is not the law that once there are conflicts in the traditional histories adduced, the court must promptly declare them inconclusive and there upon proceed to recent acts. What indeed happens is that the case being fought on hearsay upon hearsay, the trial court has a duty to find which of the two histories is more probable by testing it against other evidence in the case.

It is not the case of the Respondents at the trial court that the Appellants are not descendants of Elechita. The fact of the Appellants being descendants of Elechita is not in dispute. The Respondents did not challenge it when PW.1 was cross-examined. It was also not challenged or controverted by the evidence of the Respondents. It is now trite that facts not disputed or controverted are taken as established and should not be rejected; unless they are not patently incredible: SAMUEL EBERE V. BOARD OF MANAGEMENT, EKO BAPTIST HOSPITAL [1978] 617 SC 15. The trial court was in error to have rejected outright the undisputed fact of the Appellants being descendants of Elechita.

There were conflicts in the traditional histories of the Appellants and the Respondents. While the Appellants asserted that the deforesting of EGBELU ETITI land was a joint act of Elechita and his son, on one hand, and Okee and his children, on the other hand; the Respondents posited that only Okee, their ancestor deforested the land. The substance of Appellants’ traditional history is that EGBELU ETITI land was jointly deforested by their ancestor and the ancestor of 1st set of Respondents. The learned trial judge, in my view, was wrong to have held, as he did, that the Appellants’ evidence was at variance with their pleadings, and that evidence “came too in the pleading to be believed”. It was resort to shere semantics for his lordship to hold that PW.1’s evidence was at variance with the pleadings of the plaintiffs merely because the PW.1 said that Elechita and his son jointly deforested the land with Okee and son.

The essence of testing competing traditional histories against other evidence is that traditional histories are usually founded on hearsay upon hearsay. Because of human factor or mistakes inherent in traditional history, the best way of testing a traditional history asserted is by referring to facts or acts in recent years as established by evidence to see which of the competing histories is more probable: EBOADE v. ATOMESIN (1997) 5 NWLR [pt.506] 590; KUKOYI v. AINA (1999) 10 NWLR (Pt.624) 633; NWAMUO v. OKORO (2006) 11 NWLR [pt.990] 40 at 55 – 57 H – C.

There was overwhelming and undisputed fact that the Appellants and the Respondents jointly occupied, possessed and cultivated EGBELU ETITI until 2002. The fact is further corroborated by Exhibits E and F , which show that in 1993 and 1996 the land was jointly allocated, for farming purposes, to members of Appellants and Respondents groups. It was not the case of the Respondents that the Appellants were their customary tenants, when they admitted the joint possession of EGBELU ETITI with the Appellants. The learned counsel for Respondents submitted on this that the learned trial judge did not suo motu raise and hold that the Appellants were implied customary tenants of the Respondents. He can not, and he did not, justify this finding either on pleaded facts or evidence on the record. The Supreme Court, as pointed out by Appellants’ counsel, in FABIYI v. ADENIYI [2000] 6 NWLR [pt.662] 532 had succinctly stated that a trial court, in deciding a case, must strictly keep to the pleadings of the parties and must not stray away from the pleadings, even in the interest of justice. Neither in the pleading nor evidence of the Respondents was the issue of the Appellants being customary tenants of the Respondents raised. The finding that Appellants were customary tenants of the Respondents is perverse. The law is now settled that a decision of a court is perverse when it runs counter to the evidence and pleadings, or where the trial court took into account matters which it ought not to have taken into account; or when it shuts its eyes to the obvious: MISR [NIG] LTD v. IBRAHIM (1974) 5 SC 35; INCAR LTD v. ADEGBOYE [1985] 2 NWLR (Pt.8l 453; ATOLAGBE v. SHORUN [1985] 1 NWLR [pt.2] 360.

It was submitted for the Appellants, and I agree, that where a plaintiff’s pleads possession of a land as his root of title and the defendant admits that possession the onus is on the defendant to show that the plaintiff is not the owner of the land, the possession of which is admitted. Once the defendant admits the plaintiff’s possession of the land in dispute the plaintiff has discharged the onus of proof cast on him by law. See EZINWA & ANOR v. EMMANUEL AGU & ANOR [2004] 3 NWLR [pt.861] 431 at 437, and also section 146 Evidence Act. In the instant case the witnesses for the Respondents admitted that before 2000 the Appellants and Respondents jointly owned EGBELU ETITI and farmed thereon yearly. See DW.1, DW.2, DW.3 and DW.5. These admitted facts need no further proof. They ought to be and should have taken as established facts. See 75 Evidence Act

The admitted joint acts of possession and enjoyment of EGBELU ETITI are clearly evidence of the Appellants’ joint ownership of the land with the Respondents. This admission further tilts the weight or preponderance of evidence in favour of the plaintiffs/Appellants.

There are five ways of establishing title to land enunciated by the Supreme Court in IDUNDUN v. OKUMAGBA [1976] 10 SC 227 at 246. That is

1. Traditional evidence
2. Production of documents of title
3. Acts of ownership extending over a sufficient length of time and numerous enough to warrant an inference that the person is the true owner
4. Acts of long possession and enjoyment of land
5. Proof of ownership of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent would in addition be the owner of the land in dispute.

The proof of any of or all the five ways is all that the plaintiff or any person claiming title to land needs to establish. From the totality of the evidence available the Appellants have established all except production of title documents, to warrant their being declared joint owners of EGBELU ETITI land with the Respondents. The Respondents’ admission of joint possession and enjoyment of the disputed land until 2000 further strengthens the Appellants’ case.

The learned trial judge relied on the survey plan, Exhibit G, tendered by the Respondents in holding that EGBELU ETITI and UKWU UDA lands belong exclusively to the Respondents. Appellants’ counsel pointed out that since that Exhibit G was not counter signed by a surveyor-General, it was inadmissible in evidence and that the trial court was in error to have relied on it, even though it was admitted in evidence without objection. He cited LAWSON v. AFANI CONSTRUCTTON COMPANY LTMTTED [2002] 2 NWLR [Pt.752] 585 at 595; SUNDAY OGUNSINA & ORS v. SUNMONU MATAMMI [2001] 9 NWLR [Pt.718] 286 at 289. Respondents’ counsel considers these submissions as mere technicalities, since Exhibit G was tendered without objection. The law on this is very clear: neither the trial court nor the parties have power to admit in evidence a document which in law is inadmissible in evidence, with or without objection. If a document was wrongly received in evidence at the trial court, an appellate court has an inherent duty to exclude it although it was not objected to at the trial. See OGUNSINA v. SUNMONU MATANMI [supra]. In LAWANSON V. AFANI CONSTRUCTION COMPANY LIMITED [supra] this court held that a survey plan which is not counter signed by a Surveyor-General is inadmissible in evidence no matter how well and how properly drawn.

That takes care of Exhibit G. The trial court should not have relied on it. Exhibit G is a technical document. It should not have been dumped on the court without its purport being demonstrated in the court. A party tendering such documents has a duty to demonstrate its purport: ALAO v. AKANI [2005] 22 NSCQR (2) 867 at 884; AWUSE v. ODILI [2005] 16 NWLR [pt. 952] 416 at 482.

In view of the foregoing, it is my firm view that the learned trial judge was wrong to have dismissed Appellants’ claim for joint ownership of EGBELU ETITI with the respondents and awarding the same exclusively to the Respondents. The appeal in respect of EGBELU ETITI land is hereby allowed.

The learned trial judge had lumped the counter claim in respect of UKWU UDA land by the 2nd set of defendant/respondents against the plaintiffs/Appellants together with the dispute over EGBELU ETITI. The Respondents predicated their claim to UKWU UDA land on their allegation that they were in joint occupation and use of the land, as land of Umuada, until the Appellants changed their name to Umuala; that on the dispute as to which of them owned the land the Appellants summoned them [2nd set of Respondents] to Agu-Lore juju shrine in Ogoni land Rivers State and elected to forfeit the land to 2nd set Respondents if they took the Oath and survived same after one year. And that the land became theirs exclusively as a result. This was case of the 2nd set of Respondents. The DW.1, DW.4 and DW.5 testified in support of this assertion of the 2nd set of Respondents. The DW.5, a messenger of the shrine, however admitted that he did not know the actual land the oath was administered for. The claim of the 2nd set of Respondents founded on the oath taking was fiercely contested by the Appellants. Issues were joined in both pleadings and evidence on this. In the final judgment, in which UKWU UDA was awarded to the 2nd set of Respondents, the learned trial judge did not at all allude to the pleadings and evidence of the parties as they relate to the dispute over UKWU UDA. The conflicting averments and evidence of the parties were not evaluated before the disputed UKWU UDA was awarded to the 2nd set of Respondents. The evidence and pleadings in respect of EGBELU F|ITI land which His Lordship, the trial judge, relied on to award UKWU UDA land to the 2nd set of Respondents were quite unretated and extraneous to the dispute over UKWU UDA land. The dismissal of Appellants’ traditional history, and the upholding of the traditional history of the Respondents on which the learned trial judge awarded UKWU UDA to 2nd set of Respondent are irrelevant to the claim over UKWU UDA. So also is his Lordship’s finding that appellants were customary tenants of the Respondents on UKWU UDA land. The court grants to a party only the claim he has proved. It can not grant or award a claim not asserted and proved. AJAYI v. TEXACO NIG. LTD [1987] 3 NWLR [Pt.62] 577.

The decision of the trial court as it relates to UKWU UDA is erroneous. It is perverse. It runs counter to the evidence in respect of UKWU UDA land. In so doing irrelevant and extraneous matters were imported into decision, while at the same time the trial court shut its eyes to the obvious. This has occasioned a miscarriage of justice. These are what render the decision perverse. See MISR [NIG] LTD v. IBRAHIM [supra]; INCAR LTD v. ADEGBOYE [supra]; ATOLAGBE v. SHORUN [supra].

A court has no business or duty of making for a party a case different from the case the party himself made for himself: FAGBENRO v. AROBADI [2006] 7 NWLR (Pt.978) 172. A trial court is a court of both law and facts. It has no other source of generating its decision except from the facts of the case established before it: CHEDI v. ATTORNEY-GENERAL OF FEDERATION [2006] 3 NWLR [Pt.997] 308 at 325. In rendering its decision over a particular dispute, the primary duty of the trial court is to fully and consciously consider the totality of the evidence of the parties on the issue in dispute before handing down the decision. The facts of each case are important in the outcome of the case: A.G. ABIA STATE v. A.G. FEDERATION (2006) 16 NWLR [Pt.1005] 265. They guide the court in the eventual out come of the case. The trial court, in the instant case, erroneously failed to be guided by the facts of the dispute over UKWU UDA land and allowed itself to be swayed by some irrelevant and extraneous facts. The decision and order awarding UKWU UDA land to 2nd set of Respondents are in the circumstance erroneous. They can not stand. With all deference to the counsel for Respondents the judgment of the trial court as it pertains to UKWU UDA land is indefensible.

The issue whether the learned trial judge in delivering his judgment without making recourse to the written address of the Appellants’ counsel did not violate Appellants right to fair hearing now appears academic in view of my foregoing stance. Suffice to mention that this court in ANYAKPELE v. NIGERIAN ARMY [2000] 13 NWLR (Pt.684) 209 defined what a good judgment should contain. That is –

A good judgment must contain-

a. resume of the type of action

b. the claim or charge well set out

c. a review of the totality of the evidence led;

d. perception and evaluation of the whole evidence;

e. consideration of the legal submissions made and/or arising and finding of law on them, and

f . conclusion.

I should add also that though judgment writing, particularly its format, is a matter of style peculiar to each judge, it should have the foregoing features.

In conclusion, I allow the appeal on all the issues canvassed except the issue as to whether the trial judge did not violate the Appellants’ right to fair hearing when it did not consider the Appellants’ final address in its judgment. The counter-claim was erroneously upheld. Accordingly it is hereby dismissed in its entirety.

The order awarding EGBELU ETITI and UKWU UDA lands to the Respondents is hereby set aside. From the totality of the evidence available the Appellants merited being awarded judgment in terms of the reliefs they sought at the trial court. I hereby declare that the Appellants, as plaintiffs, are jointly entitled with the Defendants/Respondents to the ownership, use and occupation of the parcel of land known and called EGBELU ETITI which land is situate at Obehie Asa in Ukwa West Local Government Area of Abia state. Accordingly, the Defendants/Respondents are hereby perpetually restrained by themselves, their privies, servants, agents or successors in title from howsoever disturbing and/or interfering with plaintiffs/Appellants’ joint ownership, possession use and occupation of the said EGBELU FTITI land with the Defendants/Respondents.

Costs at N40,000.00 are hereby awarded in favour of the Appellants against the Respondents.

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Other Citations: (2009)LCN/3162(CA)