Chief Maxwell Dakipiri Odi & Ors V Chief Harrison Iyalla (2004)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C. 

In suit No. PHC/97/71 the appellants as plaintiffs (for themselves and on behalf of Idama Ekulama Community) claimed against the 1st set of defendants/respondents for themselves and on behalf of Soku Community two reliefs, a declaratory relief and an injunctive relief, as follows:

“1. A declaration of title to the piece or parcel of land known and called ‘EKULAMA LOCATION’ situate and lying at Alagbon Iburu in Ababoko in the Rivers State.

2. An injunction restraining the defendants, their servants, agents and all persons claiming through or under them from interfering with the plaintiffs’ title, rights and interests in and over the said location.”

The appellants called four witnesses. The two sets of defendants/respondents called a total of thirteen witnesses. Both parties tendered their survey plans of the land in dispute.

The learned trial Judge gave judgment against the appellants. He relied heavily on the evidence of PW3. He said at page 121 of the record:

“The other witness not of plaintiff’s village was PW3 Chief lbikiri William West. His evidence is in fact denial of plaintiffs’ claim to ownership of the land Alagba Mburu. According to his evidence all these swamp lands including Alagba Mburu belong to Amanyanabo of Kalabari for whom he collected rents and other settlement dues from non Kalabari settlers of these fishing settlements and swamps. This is admitted by the defendants too in the evidence of their witnesses.

Where a plaintiff, in his evidence, clearly and in unequivocal terms, admit third party ownership or interest in the subject matter of his claim, the court will not grant him the relief that he seeks unless he proves to the court that that third party had expressly or impliedly surrendered to him (plaintiff) his (third party’s) interest in that subject matter.”

Dissatisfied, the appellant went to the Court of Appeal. That court dismissed the appeal and affirmed the decision of the learned trial Judge. Katsina-Alu, JCA (as he then was) said at page 193 of the record:

“Once it becomes clear on the evidence that third party interest was raised, the trial Judge had a duty to consider the oral evidence in this regard vis-a-vis the party’s pleadings. Clearly therefore the plaintiffs’ contention that the learned trial Judge determined the case upon an issue not raised on pleadings is a misconception of the law. In my judgment, the contention has no foundation.”

Still dissatisfied, the appellants have appealed to this court. As usual, briefs were filed and duly exchanged. The appellants formulated three issues for determination as follows:

“(i) Was the Court of Appeal right in dismissing plaintiffs’ appeal against the judgment of the High Court which relied on evidence of 3rd party interest in the land in dispute elicited from a witness in cross-examination when the Court of Appeal itself found that third party interest was not raised in the pleadings

(ii) Was the Court of Appeal right in law in relying on evidence of third party interest when the issue was not raised in the pleading of the parties in coming to its decision in the appeal

(iii) In the circumstance of this case, was a dismissal order the appropriate order to make when: (a) On the evidence of third party ownership allegedly established, none of the parties was entitled to judgment in which case an order of a non-suit would have been the proper or alternative order

(b) As the respective case put forward before the court at the trial was not properly considered was this not a special feature warranting an order of a retrial”