Clement Okeke V. Amuche Nwigene & Anor (2016)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
This is an appeal against the judgment of the Anambra State High Court, sitting at Ekwulobia (hereinafter referred to as the Lower Court), delivered by Hon. Justice C. E. K. Anigbogu. J. on the 5th day of March, 2013.
The plaintiffs/respondents by their statement of claim filed on the 14th day of October, 1999 claimed against the defendant/appellant for the grant of the following reliefs:
?a. A declaration that the plaintiffs were the people entitled to the Statutory Right of Occupancy over the pieces or parcels of land marked ?A? and ?B? shown in survey plan No. AS A/AND33/98 situate at Umuchiana Ekwulobia, Aguata L.G.A., within jurisdiction.
b. Perpetual Injunction restraining the defendant, his agents and privies from acts of trespass into the parcels of land marked ?A? and ?B? in the plan annexed.
c. N1.5 Million being general damages for trespass.?
?
In defence, the defendant/appellant entered his defence by filing his statement of defence and counter-claim on the 16th day
1
December, 1999. The said statement of defence and counter-claim was subsequently amended on the 11th day of February, 2009. In reply to the defendant/appellant?s statement of defence and counter-claim, the plaintiffs/respondents filed their reply to the said defendant/appellant?s initial Statement of Defence and Counter-Claim on the 29th day of June, 2000. The defendant/appellant by his amended statement of defence and counter-claim prayed the Lower Court for the grant of the following reliefs:
?1. A declaration that the defendant is the person entitled to be issued with the statutory right of occupancy to all that piece or parcel of land verged black excluding the area verged yellow in the defendant?s plan No. TLS/AN/D38/99 lying and situate at Umuchiana village, Ekwulobia Aguata Local Government Area of Anambra State, which rental value is not more than N2,000.00.
2. An injunction restraining the plaintiffs their agents or privies from any further act of trespass or in any way interfering with the right and interests of the defendant in the said piece or parcel of land verged black in the plan.
3. The sum of ?2000.00
2
for trespass.?
The crux of the dispute between the parties herein is the appropriate person who is entitled under the Ekwulobia custom and tradition to the ownership and occupation of the piece of land (Obi), which formerly belonged to one Nwanneche. The said Nwanneche was the first son of one Ezegoro (or Ezegilo) and according to the Ewkulobia native law and custom is entitled to the main compound of his father, to which he was accordingly allowed. However, the said Nwanneche died without having any issue. (That is, a successor). But before his death his younger brother, Ibemesi, died before him, albeit, leaving a son behind, Nwigene, who according to the Ekwulobia custom and tradition is entitled to his estate. It is in evidence and not disputed that Ezegoro had three (3) sons, and they are as follows in order of seniority:
1. Nwanneche
2. Ibemesi
3. Okeke.
The major point of disagreement or divergence between the parties is with regards to who is entitled to inherit the property of Nwanneche who died childless, and considering the fact that Ibemesi; pre-deceased the said Nwanneche, although, he left a successor.
?
The
3
plaintiffs/respondents in proof of their case called two (2) witnesses in addition to the 1st plaintiff and tendered a survey plan in evidence as Exhibit A. The defendant/appellant on his own part called five (5) witnesses in addition to himself and tendered his survey plan as Exhibit B. The case was duly heard by the learned trial judge, and at the close of hearing, learned counsel to both parties filed written addresses and formally adopted the same before the Lower Court. At the end of it all and after the giving of due consideration to all the processes and evidence adduced before him, coupled with the arguments canvassed by the learned counsel to both parties, the learned trial judge entered judgment in favour of the plaintiffs/respondents in the following terms:
?From the totality of the evidence before me I am satisfied that the plaintiffs, have discharged the burden of proof placed on them by the law and that the lands, family owned and occupied by Nwanneche is the rightful inheritance of Ibemesi the father of Nwigene and judgment is hereby entered for the plaintiffs as follows:-
(1) It is declared that the Plaintiffs are the people
4
entitled to the Statutory Right of Occupancy in and over the piece or parcel of Land marked A & B as shown in the survey Plan No. AS. A/AND33/98 situate at Umuchiana Ekwulobia, Aguata Local Government Area.
(2) Perpetual injunction restraining the defendant his agent and privies from further acts of trespass into the parcels of land or from selling, alienating or dealing with the said lands in any manner inconsistent with the right and interests of the plaintiffs.
(3) That the sale and alienation of the said lands to a third party is unlawful.
(4) That the Defendant is ordered to return to his father?s rightful allotment which he vacated to come and occupy the Obi of Nwanneche.
(5) That to make for easy transition and not cause untold hardship to the Defendant he shall be allowed to remain on the said Land for the remaining of his life time during which he shall arrange for his family to relocate to his original homestead and the purport of this order is that he shall be buried whenever he dies in his own homestead and not on the Obi of Nwanneche which is the property of Nwigene.
Considering the relationship between the
5
parties I make no order as to costs.?
Expectedly, the defendant/appellant was dissatisfied with this judgment, and thus appealed against the same vide a notice of appeal filed on the 24th day of May, 2013, wherein he challenged the said judgment on nine (9) grounds of appeal.
In accordance with the extant rules of this Court and with the record of appeal having been compiled and transmitted to this Court on the 17th day of July, 2013 both parties filed their respective briefs of argument. Henceforth in this judgment, the plaintiffs would be referred to as the ?respondents? while the defendant would simply be referred to as the ?appellant?.
?
The appellant?s brief of argument was prepared by Chief Okwuchukwu Ugolo, SAN. It was filed on the 7th day of November, 2013. It was deemed as having been properly filed and duly served on the 23rd day of March, 2015. The respondents? brief of argument on the other hand was prepared by K. C. Ezeanyika Esq., It was filed on the 14th day of April, 2015. In reply to the respondents? brief of argument, the learned senior counsel for the appellant filed the
6
appellant?s reply brief of argument on the 23rd day of April, 2015.
Towards the determination of this appeal, the learned counsel to the appellant distilled five issues for determination. The issues are as follows:
?(1) Whether the Learned Trial Court was Right to Grant Reliefs not claimed by the Respondents.
(2) Whether the Lower Court was right in law when it held that Paragraphs 151 (2) of the Customary Law Manual of East Central State is not applicable in this suit.
(3) Whether the Learned Trial Court was right in law when it held that PW1, PW2 and PW3 who are sisters of full blood are authorities on the customs and traditions of Ekwulobia and failed to evaluate the evidence of the Defendant and his witnesses on the said issue
(4) Whether the Learned Trial Court was right in law when it granted the Obi land to the Plaintiffs who said expressly that they were not claiming it as it was not in dispute
(5) Whether the Appellant has established his Counter Claim against the Respondents.?
?
The issues reproduced above were also adopted by the learned respondents? counsel in the respondents? brief of
7
argument. In this circumstance, the said five issues are also hereby adopted by me for resolution and determination of this appeal. But the first issue as distilled by the learned appellant?s counsel would be considered last due to its nature. Consequently, the issues are hereby re-arranged as follows:
ISSUE ONE
1. Whether the Lower Court was right in law when it held that Paragraph 151 (2) of the Customary Law Manual of East Central State is not applicable in this suit.
The learned senior counsel to the appellant contended that the appellant?s case at the Lower Court was to the effect that whenever the eldest son dies without having a successor, in Ekwulobia custom and tradition, such person?s property are to be inherited by the next most senior brother to the deceased person. He further argued that this customary practice has been reduced into writing in Paragraph 151(2) of the Customary Law Manual of East Central State. The learned senior counsel maintained that the learned trial judge referred to the said manual and went ahead to find for the respondents to the effect that the applicability of the said manual is extended
8
beyond individuals to families or lineage of the next most senior. He insisted that the standpoint of the respondents in this respect was not pleaded, but was only introduced at the stage of address. The learned appellant?s counsel therefore submitted that the said contention ought to be discountenanced. He urged this Court to so do. He referred us to the case of Niger Constructions Ltd. v. Okugbeni (1987) 12 S. C. 108 @ 114.
The learned appellant?s senior counsel also contended that the findings arrived at by the Lower Court in favour of the respondents were neither supported by evidence nor in consonance with the native law, custom and tradition of the Ekwulobia people. It was further argued that the learned trial judge did not properly appreciate and evaluate the testimonies of the appellant?s witnesses before arriving at his decision. He therefore urged this Court to hold that the decision of the learned trial judge to change or in essence ignore, the express provision of Paragraph 151 (2) of the Customary Law Manual of East Central State which is applicable to Ekwulobia is against the weight of evidence and perverse. Thus, he urged
9
this Court to resolve this issue in favour of the appellant.
The learned counsel for the respondents in reply counter argued that the Customary Law Manual upon which the appellant hinged his argument is not a law by itself but a codification of customs which has to be proved. He further opined that the said manual was neither pleaded by the appellant nor tendered in evidence for the purpose of cross-examination (if necessary). It was therefore submitted that the said manual having not been pleaded, any facts elicited therefrom goes to no issue. He referred to and placed reliance on the case of Muniratu Ogun Makinde & 3 Ors. v. Chief David Akiwolo (2002) FWLR (Pt. 105) 798. The learned counsel continued and stated that the said manual is not a law, an act or enactment but merely a guide. He also maintained that the said manual has not been judicially noticed as to make it binding on the people of Ekwulobia. The learned counsel for the respondents further opined that issues or matters of customs are required to be proved by facts given as evidence. He referred to Sections 73 and 74 of the Evidence Act, 2011. Additionally, the learned counsel for the
10
respondents submitted, that the failure of the appellant to plead the said manual and tender same in evidence is fatal to his case. He relied on the case of Adedibu v. Adewoyin (1951) 13 WACA 191.
The learned respondents? counsel further highlighted the evidence on record and submitted that the learned trial judge properly evaluated all the pieces of evidence adduced before him and rightly found for the respondents? family. He therefore urged this Court to resolve this issue in favour of the respondents.
Before I address this issue, it is pertinent to observe as the learned counsel to the respondents has pointed out, that the said Customary Law Manual of East Central State which the appellant relied heavily upon and urged this Court to interpret strictly and invoke, was neither pleaded nor tendered in evidence before the Lower Court. The said manual stricto senso is not a legal authority or basis upon which the proof of a custom or tradition can be hinged. I agree with the learned respondents? counsel that it is merely a guide which ought to be pleaded by the appellant. However, I have carefully perused the provision of Paragraph
11
151 (2) of the manual being relied upon heavily by the appellant and found that the provisions of the said paragraph is basically in consonance with the custom of the Ekwulobia people as alleged by both parties, thus, the said manual would be considered along with the facts and evidence adduced by both parties in proof of their customs and traditions.
The parties are at ad idem that if an eldest son dies without leaving a successor (that is, without a son) his estate would be inherited by his next most senior brother of full blood. It is also generally agreed between the parties that when a person dies leaving behind a son, his estate or lineage continues and does not perish or vanish, but would be held to have continued by the said surviving son. In the instant case, Nwanneche who is the diokpala (eldest son of his father) died without having any child. Now, the question then arises as to who should inherit his estate/property. It is in evidence and generally agreed between the parties that the children of Ezegoro (or Ezegolo), the great grandfather of the parties had three (3) children namely and in order of seniority:
1. Nwanneche
.
12
2. Ibemesi
3. Okeke
Nwanneche being the eldest, inherited the main compound (obi) of the said Ezegoro; while the other properties were shared to other sons by the said Nwanneche. Ibemesi died before Nwanneche, but he had a son as his successor called Nwigene. After the death of Nwanneche, his property which ordinarily would have been passed to Ibemesi was taken over by Okeke, because Ibemesi was already late. Okeke?s occupation of the said property was not challenged by Nwigene or any of his direct family members, because according to them, he was there to take care of the said property until Nwigene would come of age and claim the same. The appellant on his own part argued and strongly maintained that Okeke his grandfather did not occupy the said property on behalf of the said Nwigene, but as of right because he was the remaining surviving son of their father.
?
After due consideration of all the evidence adduced before him, the learned trial judge held that, it is generally recognised that when a man dies but survived by a son, he is still deemed to be living in the eyes of the people, thus, notwithstanding the fact that he pre-deceased
13
Nwanneche, Ibemesi is deemed to be in existence through his son Nwigene. Therefore, any property which ordinarily would have been inherited by Ibemesi can be lawfully transferred to his son Nwigene, the grandfather of the respondents through whom they are now claiming. Having regards to the circumstance of this case, the pertinent question that needed to be asked is: Whether the finding of the Lower Court was based on evidence adduced before him? The answer to this question is strongly in the POSITIVE. The above stated findings were based on credible facts elicited from both the PW1, DW1 and DW6. For purpose of emphasis and clarity, I will undertake to reproduce the portion of evidence given by DW 1 and DW 6 under cross-examination in support of this standpoint. DW1 (the appellant) at P. 183 of the record of appeal stated thus:
?when a Diokpala predeceases his father the next in line after the Diokpala becomes the Diokpala. When a man dies his eldest son retains the Obi as against the man?s younger brother.? (Underlining added for emphasis)
Also, at page 192 of the record of appeal, DW6 admitted as follows:
?A man has
14
Obi according to the number of children he has. Obi is the residence of the man. Ana Obi is the portion given to the sons as may (sic) as they are of a man. The eldest son inherits the Obi on his father?s death. If the eldest son dies without a successor, the next son in line of seniority occupies the Obi.? (underlining mine for emphasis).
He continued and stated:
?When a man dies and is survived by a son who is a minor, his right to the Obi does not vanish that son continues in the lineage.?
It is not in dispute that Ibemesi was the next in line in seniority of the Nwanneche family. It is also not in dispute that Ibemesi was survived by his son, Nwigene. I do not agree with the contention by the learned senior counsel for the appellant, that the seniority in inheritance is limited to individuals personally. It extends beyond that to their lineage or successors, as clearly expressed above. Therefore, I am in tandem with the learned trial judge that the Obi of Nwanneche passed on to Nwigene, which by extension was passed to the respondents. This issue is hereby resolved in favour of the respondents.
ISSUE 2<br< p=””
</br<
15
Whether the Learned Trial Court (sic) was right in law when it held that PW1, PW2 and PW3 who are sisters of full blood are authorities on the customs and traditions of Ekwulobia and failed to evaluate the evidence of the Defendant and his witnesses on the said issue.
The learned senior counsel to the appellant observed that the respondents? witnesses and the respondents are also sisters of full blood. He contended that the Lower Court acted in error when it held that the said respondents? witnesses are authorities on native law and custom of the Ekwulobia people by equating them with the judges of the Customary Courts and President of the Customary Court of Appeal. He posited that the said witnesses did not put forward any qualification to warrant such equation. He further maintained that the learned trial judge without any jusitification failed to evaluate the evidence of the appellant and his witnesses, but upheld the submissions of the learned counsel to the respondents even though they were not backed by pleading and evidence. He therefore, urged this Court to resolve this issue in favour of the appellant.
?
The learned counsel to
16
the respondents in reply submitted that customary law is a question of fact which must be strictly proved. He referred us to the case of Oyediran v. Alebiosu II (1992) 7 SCNJ 187; Oguonzee vs. The State (1998) 4 SCNJ 226; and Adeogun v. Ekunrin (2003) FWLR (Pt. 170) 1345. He counter argued that there is no specific qualification that qualifies, a person before such a person can be regarded as an authority on native law and customs in Ekwulobia, and that provided the person is knowledgeable in the said custom and tradition, his/her evidence is admissible. He also opined that the gender of a witness or his/her relation to the party he/she is testifying in favour is immaterial and does not detract or impugn his/her competency.
?
The learned counsel for the respondents further maintained that the learned trial judge properly evaluated all the pieces of evidence adduced by the appellant?s witness (especially DW 1 and DW6) before arriving at his decision. He contended that the pieces of evidence adduced by the appellant are contradictory and inconsistent with the custom and tradition of the Ekwulobia people. Thus, the said pieces of evidence were rightly
17
discountenanced by the Lower Court. He therefore urged this Court to resolve this issue under consideration in favour of the respondents.
?
I have carefully perused the judgment of the Lower Court, and found that the learned trial judge did not make any finding to the effect that the said respondents? witnesses are authorities on customary law of the Ekwulobia people as to render the appellant?s evidence irrelevant. Also, it is my stand point that the learned trial judge did not by any means equate the said respondents? witnesses with the Judge of Customary Courts and President of the Customary Court of Appeal. The point being made by the learned trial judge was simply that being of a female gender does not render the evidence of a witness inadmissible and/or not credible with regard to the customary law as the learned senior counsel for the appellant sought to argue. I agree with the learned trial judge that being female does not ipso facto render the evidence of the respondents? witnesses inadmissible, provided the pieces of evidence are credible, they could be relied upon to prove the customary law in question. Any contrary
18
opinion would be in clear breach of provision of Section of 42 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). I have also perused the said judgement and found that the learned trial judge duly considered the evidence of the appellant?s witnesses but found that they are not in consonance with the dictates of customary laws, custom and tradition of Ekwulobia to prove the counter-claim of the appellant and rightly discountenanced the same. Therefore, this issue is also resolved in favour of the respondents.
ISSUE 3
Whether the Learned Trial Court was right in law when it granted the Obi land to the Plaintiffs who said expressly that they were not claiming it as it was not in dispute.
The learned senior counsel to the appellant contended that the respondents from their evidence were only claiming the portion of land granted to their grandfather, Ibemesi by Nwanneche and which was inherited by their father, Nwigene (as marked ?A? in survey plan No. ASA/AND33/99).He further contended that the respondents based on their evidence were not claiming for the Obi of Nwanneche which the appellant occupies (and
19
marked ?B? in the above survey plan). He maintained that PW 1, PW 2 and PW 3 have consistently maintained that the portion of land to which the respondents are claiming is purely the property of their father which was allotted to their lineage by Nwanneche. He therefore submitted that the Lower Court acted in error when it granted the respondents? claim to the said area of land marked ?B? in the respondents? plan, which the respondents have admitted is not in dispute and urged this Court to resolve this issue in favour of the appellant.
?
The learned counsel to the respondents in reply argued that the respondents duly pleaded the area of land in respect of which they sought declaratory reliefs and duly filed a survey plan No. AS/AND33/98 to properly describe and delineate the said area of land. He contended that the area in dispute were marked A and B on the said survey plan as pleaded in their statement of claim. He therefore submitted that the learned senior counsel to the appellant was therefore wrong to have argued that the area marked B on the said survey plan (Nwanneche Obi) was not in dispute especially on the
20
basis that issues have been joined on that area of land between the parties, and also misleading. He finally submitted that the issue as to the ownership of the Obi land had already been determined by the Lower Court in favour of the respondents, and that survey plans are of no importance in the determination of the ownership by the appellant because ab initio, the appellant?s father had no share of land in the Obi.
It is now trite and well settled principle of law that parties are bound by their pleadings. See Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248; Olaniyi v. Elero (2007) 8 NWLR (Pt. 1037) 517, and Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81. Under our current adjudicatory system, parties are expected to precisely, concisely and accurately plead facts which form the basis of their case, and lead evidence thereon. The essence of this is to give the other party adequate/ample notice as to what he is to expect in Court and remove the former harmful practice of parties, always springing surprises. The respondents? case as pleaded was the ownership of the family Obi (Nwanneche former Obi), which they claimed the appellant was unlawfully
21
holding up together with other land belonging to their father. The two (2) areas of land were clearly delineated and pleaded as being the area of land marked A and B in the respondents? survey plan No. AS/A/AND33/98. It is also clear from the pleadings filed by both parties as with regard to who is entitled to the Nwanneche Obi.? (Area of land marked ?B? in the said survey plan). However, the appellant?s argued that the respondents? witnesses (who are respondents? blood sisters) admitted during cross-examination that they are merely in Court to claim their father?s personal land, and that the said Obi was not in dispute. I have taken time to analyse the said testimonies of the witnesses and I found that the contention of the appellant in this regard is highly misconceived. Perhaps, he did not understand the evidence or testimonies of the said witnesses, or chose to take them out of con. The respondents and their witnesses have consistently maintained that their great grandfather Ibemesi was next in line to inherit the Obi and other landed property of Nwanneche who died without a successor. It is also in
22
evidence that the respondents and their parents were already living on the said Nwanneche Obi before Okeke came to take over or control of the property. Thus, they have always viewed the said Obi as the property of their father. See page 176 and 178 of the record of appeal. Thus, I do not agree with the learned senior counsel for the appellant that the Lower Court wrongly awarded the said area of land marked ?B? on the survey plan No. ASA/AND 33/98 to the respondents. Again, this issue is resolved in favour of the respondents.
ISSUE 4
Whether the Appellant has established his Counter Claim against the Respondents.
?
The learned senior counsel for the appellant contended that the appellant has adduced credible evidence to establish the fact that he has been in undisturbed possession of the former Obi of Nwanneche (one of the subject matter of this suit) and the respondents at all times recognised his authority without question. He further contended that the appellant has adduced credible evidence in proof of the fact that the respondents are his customary tenants and having challenged his authority he is entitled under the law to eject
23
them. The learned senior counsel thereby submitted that the appellant, based on the evidence already adduced before the Lower Court has established his counter-claim.
The learned counsel for the respondents in reply, submitted that the appellant is a trespasser and that his alleged acts of trespass culminated to this suit. He further maintained that the appellant?s father Okeke, only came onto the land on the pre of wanting to protect it for Nwigene. He further maintained that the appellant?s father, (Okeke) neither challenged the respondents on the ownership of the said lands nor did any act contrary to their ownership, as the appellant has done. It was thus submitted that the Lower Court duly, properly evaluated and analysed the evidence of the appellant but found no merit or substance in it and accordingly found for the respondents. He thereby urged this Court to uphold the finding of the Lower Court in respect thereof and resolve this issue in favour of the respondents.
?
It is now elementary that it is the duty of the trial Court/judge to evaluate all the pieces of evidence adduced before it/him and make findings of facts on the
24
same. This duty, unless it is shown not to have been done in accordance with the established and laid down principles of law, an appellate Court will not lightly or with levity interfere with such findings. See the cases of Iriri v. Erhurhobara (1991) 2 NWLR (Pt.173) 252, Kuforiji v. V. Y. B. Ltd. (1981) 6-7 S. C. 40; and Afolayan v. Ogunrinde (1990) NWLR (Pt.127) 369.
In the instant case, the learned trial judge after due consideration of all the pieces of evidence adduced before him by both parties in line with the custom and tradition of the Ekwulobia people. He found that the land which was the subject matter of the case belonged to the respondents? grandfather by virtue of inheritance. The finding has also been upheld by me earlier in this judgment, and I have no intention of upsetting the said finding herein. Thus, I agree with the learned trial judge that the appellant woefully failed to prove his case based on credible evidence and in line with the customary law and tradition of Ekwulobia. This issue is also hereby resolved in favour of the respondents.
Issue 5
Whether the Learned Trial Court (sic) was Right to Grant Reliefs not
25
claimed by the Respondents.
The learned senior counsel for the appellant maintained that the learned trial judge was busy dishing out reliefs which were neither sought by the parties nor based on evidence adduced before him. The learned senior counsel submitted that ?when an issue is not pleaded before a Court it has no business whatsoever to deal with it?. He relied on the cases of Ebba v. Ogodo (1984) 4 S. C. 74; and Yusuf v. Oyetunde (1998) 12 NWLR (Pt. 579) 483 among others.
The learned counsel to the respondents in reply coutered that the additional reliefs being granted by the Lower Court were embedded in the main reliefs, which were merely ancillary, incidental or consequential upon the grant of the main reliefs. He referred us to the case of S.C.O.A. Nig. Plc. v. Mohammed (2003) FWLR (Pt. 1850) 404. The learned counsel continued with the submission that the grant or refusal of a Court to grant reliefs being sought before it is discretional, which said discretion must be exercised judicially and judiciously. He referred us to the case of Eya v. Qudus (2001) 15 NWLR (Pt. 737) 587. He continued and opined that the alleged additional
26
reliefs, apart from being consequential of the main reliefs were granted in the best interest of the appellant. He also stated that if this Court was of the view that the reliefs granted by the Lower Court was in excess of what was sought this Court has the power to modify the said reliefs in line with the main reliefs sought by the respondents. He referred us to the case of Ndika & Ors. v. Chiejina (2002) FWLR (Pt. 119) 1178.
Before addressing this issue it is pertinent, for convenience and ease of reference to reproduce the main reliefs sought for by the respondents in their pleadings and the reliefs granted by the Lower Court.
The respondents in Paragraph 21 of their statement of claim sought for the following reliefs:
?a. A declaration that the plaintiffs were the people entitled to the statutory Right of occupancy over the pieces or parcels of land marked ?A? and ?B? shown in survey plan NO. AS A/AND 33/98 situate at Umuchiana Ekwulobia, Aguata L.G.A., within jurisdiction.
b. Perpetual Injunction restraining the defendant, his agents and privies from acts of trespass into the parcels of land marked
27
?A? and ?B? in the plan annexed.
c. ?1.5 Million being general damages for trespass.?
The learned trial judge in his well considered decision entered judgment in favour of the respondents in the following terms:
?(1)It is declared that the Plaintiffs are the people entitled to the Statutory Right of Occupancy in and over the piece or parcel of Land marked A & B as shown in the survey plan No. AS. A/AND33/98 situate at Umuchiana Ekwulobia, Aguata Local Government Area.
(2) Perpetual injunction restraining the Defendant his agent and privies from further acts of trespass into the parcels of land or from selling, alienating or dealing with the said lands in any manner inconsistent with the right and interests of the plaintiffs.
(3) That the sale and alienation of the said lands to a third party is unlawful.
(4) That the Defendant is ordered to return to his father?s rightful allotment which he vacated to come and occupy the Obi of Nwanneche.
(5)That to make easy transition and not cause untold hardship to the Defendant he shall be allowed to remain on the said Land for the
28
remaining of his life time during which he shall arrange for his family to relocate to his original homestead and the purport of this order is that he shall be buried whenever he dies in his own homestead and not on the Obi of Nwanneche which is the property of Nwigene.?
Having carefully considered the above reliefs granted by the Lower Court vis–vis what the respondents were claiming, I am in agreement with the respondents? counsel that the additional reliefs granted by the learned trial judge are consequential reliefs based on the facts of the case brought before him by the parties. Consequential orders have been defined by the Supreme Court in the case of Funduk Engineering Ltd. v. James Mc Arthur & Ors. (1996) LPELR ? 1291 (SC) at page 19 where His Lordhsip, Hon. Justice Uwais, CJN, wherein he enunciated thus:
?Now a consequential order is one giving effect to a judgment or order to which it is consequential. See Obayagbona v. Obazee (1972) 5 SC 247. It is directly traceable to or flowing from that other judgment or order duly prayed for and made.?
See also Odofin v. Agu (1992) NWLR (Pt. 229) 350.
29
It has also been defined by the apex Court, per Niki Tobi, JSC (of blessed memory) in the case of Eagle Super Pack (Nigeria) Ltd. v. ACB Plc. (2006) 19 NWLR (Pt. 1013) 20 @ 57.
?A consequential order is an order that follows as a result of the earlier one which can be called for this purpose as the main order. It may have an indirect or secondary result in the relief awarding process. A consequential order is appurtenant to the main or principal order.?
It is trite that Courts of law have the discretion and/or jurisdiction to make any consequential order in the interest of justice and it is inauspicious or immaterial that the particular order was not specifically asked for by either of the parties to the case. See Iyaji v. Eyigebe (1987) 3 NWLR (Pt. 61) 523 and Akapo v. Hakeem – Habeeb (1992) 6 NWLR (Pt. 247) 266.
In the instant case, it can be discerned or gleaned from the pleadings filed by both parties and all the pieces of evidence adduced in support thereof, that the core basis or crucial segment of dispute between the parties was the sale of part of the land in dispute by the appellant and his unlawful continuous occupation of
30
the said land. Thus, the learned trial judge having found that the respondents have proved their case as against the appellant, ordered consequential reliefs in addition to the main reliefs being claimed by the respondents. I am of the candid opinion that the said additional reliefs were to properly bring to effect the judgement ordered in favour of the respondents and settle the main point of dispute between the parties in the interest of justice. I am also of the firm view point that the additional reliefs were properly made by the learned trial judge and that they enured more in favour of the appellant than the respondents. Thus, this issue is hereby resolved in favour of the respondents.
?
Having resolved the issues formulated and adopted for the determination of this appeal in the manner stated above, I am of the firm view point that this appeal lacks merit and it is accordingly dismissed by me. The judgment of the Lower Court, delivered on the 5th day of March, 2013 in Suit No. AG/42/99 is hereby affirmed and or upheld by me. Again, just like the Lower Court, I also do not intend to make orders with regard to costs, considering the relationship
31
between the parties herein.
Other Citations: (2016)LCN/8934(CA)
