Egbaran V Igbakpan Akpotor (1997)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C 

The main complaint of the plaintiffs/appellants in this appeal emanating from the Court of Appeal, Benin Division (hereinafter referred to as the court below), dated 16th April, 1993 and which falls within a narrow compass, is the admission in evidence of Exhibit “D”, to wit: Suit No. S/32/74 which the defendants/ respondents during their defence, having hitherto pleaded it, sought to tender same but was vehemently opposed by the plaintiffs/appellants on grounds that it was not relevant to the suit since the parties, subject-matter and issues therein were not the same. The aim of the defendants/respondents in tendering it through the 3rd respondent (a request which the learned trial judge eventually acceded to by admitting it as Exhibit “D”) was, as I shall seek to demonstrate, to discredit the traditional history of the plaintiffs/appellants.

At the High Court, Orerokpe in Bendel (now Delta) State the plaintiffs/appellants commenced the action giving rise to the appeal herein against the defendants/respondents (both of whom are hereinafter referred to as appellants and respondents respectively) with the former claiming jointly and severally in their further Amended Statement of Claim against the latter, the following reliefs:-

“(1) A declaration by the court that the plaintiffs are the persons entitled to the right of possession and occupation of the land in dispute known as Okwetolor land situate in Okpe clan as delineated in the plaintiffs’ plan No. KP. 1256A filed with this Further Amended Statement of Claim.

(2) An order of forfeiture of the defendants’ customary tenancy on the land in dispute for persistently challenging the plaintiffs’ right of possession and occupation of the land in dispute as delineated on the plaintiffs’ Plan No. KP.1256A in accordance with Okpe Native Law and Custom.”

Pleadings having been ordered, filed and exchanged by the parties, the case went to trial. In a well considered judgment delivered on 21st July, 1988 Okungbowa, J., dismissed the appellants’ case on both heads of claim set out above with costs. The appeal by the appellants to the court below was by a majority decision (per Ejiwunmi and Ogebe, JJ.CA, Akpabio, J.C.A. dissenting) also dismissed.

Briefly put, the appellants who claimed to be descendants of Ajija, sometimes spelt Ejija, asserted that Ajija was the son of Onakpobeyi born of Udugbeme who was the direct son of Orhue, one of the four founders of Orerokpe, the ancestral home of the Okpe people, along with the three other children of Okpe namely, Enezi, Orhoro and Evbreke. It was also appellants’ contention that Ajija founded Okwetolor and that the respondents were their customary tenants.

The respondents on the other hand claimed that their respective ancestors who were once sued in such capacities, were the joint founders of Okwetolor land. During the defence, the respondents sought to tender the judgment in Suit No. S/32/74 which was later admitted as Exhibit “D” albeit that the appellants objected very strongly thereto because, as they put it, Exhibit “D” was not relevant to this suit as the parties, subject-matter and issues were not the same. The counsel for the Respondents argued that Ejija in Exhibit “D” is the same as Ajija in this suit on appeal and that since Ejija died in Okolovu, he could not have come to Okwetolor, a view which the learned trial Judge upheld, and thus admitted this controversial document in his ruling.

An interlocutory appeal against this ruling was finally withdrawn from the court below by the appellants when counsel for the respondents said that he had only two witnesses more to end his defence and that the interlocutory appeal would delay the trial indefinitely. Appellants took the hint and withdrew the appeal to speed up the trial as the point could be raised on appeal depending on the consideration given to the document by the learned trial judge.

The main contention of the appellants against the judgment of the trial court to the court below, as transpired, was the wrongful admission of Exhibit ‘D”. The Appellants’ appeal to the court below as hereinbefore alluded to upon its being dismissed by a split decision of two justices to one, the appellants have further appealed to this court upon a Notice of Appeal containing six grounds.

The parties subsequently filed and exchanged briefs of argument in accordance with the rules of Court. The Appellants submitted five issues for our determination, to wit:

“2a. Whether a judgment sustained by the appellate court without considering the influence which a document such as Exhibit “D” has on the Trial Judge as in this case can be allowed to stand.

2b. Whether the judgment of the Court of Appeal which sustains the judgment of a Lower Court by reference to extraneous evidence not given in the court of trial as was done in this case by reference to quotation of Exhibit “D” is not enough serious misdirection in law occasioning substantial miscarriage of justice to set aside the majority judgment of the appeal court.

2c. Whether a majority judgment which failed to pronounce on the attitude of a judge who introduces his own evidence into a document Exhibit “D” in order to make the document relevant does not constitute himself into a witness for the respondents and abdicated his right to hold a fair balance between the parties in accordance with the rules of natural justice as was done in this case.