Egbuchulem Madumere & Ors Vs Ole Okafor & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, JSC

This case started about twenty three years ago. It started its journey in the Okigwe Judicial Division of the High Court of the former East Central State. The case was in 1975 transferred to the Orlu Judicial Division of the High Court of East Central State when that Judicial Division was created. The case passed through many Judges of that Judicial Division and at a stage got to the Court of Appeal, Enugu Judicial Division which ordered a retrial.

In the course of its history, Into State was created and Otto Judicial Division became one of the Judicial Divisions of the High Court of Imo State. The case was subsequently determined by Johnson J. on 27:6:85. The plaintiffs’ claims were dismissed. Their appeal to the Court of Appeal, Port Harcourt Division also failed hence the further appeal to this court.

In the Imo State High Court, Orlu Judicial Division, the plaintiffs who are appellants in this court claimed in a representative capacity on behalf of Umunnam kindred in Ogberuru against the defendants of Umuduruogu Umuegbe Ogberuru, who are the respondents in this appeal. They claimed as follows:-

1. A declaration of title to that piece of land known as and called “Ala Uzo Ulo Onumbara” situate at Umunnam, Ogberuru, Orlu.
2. N100 (One hundred Naira) damages for trespass.
3. Injunction restraining the defendants, their servants and/or agents from further entering into the said land.

The case was tried on pleadings filed and exchanged by both parties. The 3rd plaintiff and eight witnesses testified for the plaintiffs. The 1st defendant and three witnesses testified for the defendants. As stated earlier, the claims of the plaintiffs were dismissed by the learned trial Judge and their appeal to the court below failed.

In their appeal before us, the following seven issues are identified as arising for determination:-

“1. Whether the Court of Appeal was not wrong in upholding the decision of the High Court that Exhibit ‘C’ does not bind the respondents even in the face of the overwhelming evidence before the court.

2. Whether the Court of Appeal was right when it upheld the use by the High Court of Exhibit ‘G’ which is evidence in a previous proceeding to contradict the evidence of the 3rd appellant and as such declare him an unreliable witness when it was not tendered to contradict him during cross-examination, but was only tendered and admitted through D.W.1 at the opening of the defendants’ case when the defendants have lost the opportunity to confront the 3rd appellant with the exhibit and cross examine him therewith.

3. Whether the alleged contradictions are material enough to merit the great emphasis placed on them by the High Court and the Court of Appeal so as to have so much sway on the decisions of the courts against the appellants.

4. Whether the Court of Appeal was right when it upheld the High Court’s decision that the fact that Exhibit ‘D’ was written by a member of the appellant’s family constitutes an admission of the contents therein by the appellants when evidence abound that the appellants refused to recognise the work and when the Author in fact confirmed their refusal to recognise the work. And as such whether Exhibit ‘D’ could be relied upon as establishing the traditional history of Ogberuru.

5. Whether the Court of Appeal was right when it upheld the application of section 45 of the Evidence Act in favour of the respondents when in fact, no circumstances exist for the application of the section in defendants’ favour and whether the section ought not to have been applied in favour of the plaintiffs instead.

6. Whether the Court of Appeal should not have considered the issue of the grant of land to the Mission and whether a finding one way or the other on who really made the grant would not have helped the Court of Appeal to determine the actual owner of the land in dispute.

7. Whether the judgment is not against the weight of evidence.”

The respondents in their brief of argument identified six issues for determination. They overlap with those formulated by the appellants and there is no need to reproduce them.