Ezemonye Okwara V. Dominic Okwara & Anor. (1997)
LawGlobal-Hub Lead Judgment Report
ONALAJ A, J.C.A
Plaintiff now appellant in this appeal commenced the action in a representative capacity with the leave of the High Court of Imo State holden at Orlu Judicial Division Orlu for himself and on behalf of the other members of Okwara Family of Umueze Abukwa Umuobom against the defendants in a representative capacity for themselves and on behalf of the other members of Okwara Family of Durueze Abukwa Umuobom. The defendants are hereinafter referred to in this judgment as the respondents.
The claims of the appellants are discernable in paragraph 30 of the amended statement of claim at page 106 of the record of appeal. This paragraph is adopted following the rule of law that in our civil jurisprudence a statement of claim supersedes the particulars of the writ of summons especially that the averments in the statement of claim must not be in conflict or contradict the particulars of claim endorsed in the writ of summons. Paragraph 30 aforesaid states as follows:-
“30 Wherefor the plaintiff claims jointly and severally against the defendants as follows:-
(a) A declaration that plaintiff and members of his family are entitled to the customary right of occupancy covering Ala Duruigbo in dispute situate at Umueze Abukwa Umuobom shown in plaintiffs plan No. DS/9357/IM 1847D/87 verged green (except the portion verged black) being of an annual value of N20.00 (Twenty Naira).
(b) N2000.00 general damages for trespass.
(c) A perpetual injunction restraining the defendants themselves, their servants, agents and privies from further trespassing on the portion of the said Ala Duruigbo verged green excepting the portion verged black in the said plaintiffs plan.”
After service, respondents filed their statement of defence which was also amended with the leave of court.
To substantiate his claim appellant called nine witnesses. A summary of the testimonies of appellant’s witnesses are at page 165 of the record of appeal being part of the judgment of Hon. Justice G.O. Oyudo delivered on 7th day of January, 1994 which judgment covers pages 163 to 172 of the record of appeal.
Respondents on their part called 7 witnesses. The summary of their testimonies are at pages 166 and 168. The survey plan of the appellants was admitted as Exhibit C. The parties joined issues as to the identity of the land in their pleadings. From the pleadings and testimonies of the parties the learned trial Judge on the importance of the identity of the land in an action for right of occupancy at pages 167 and 168 of the record of appeal stated thus:-
“First on the location of the land in dispute according to the evidence accepted by both parties, there are four villages in Abukwa namely, Eluama, Umueze, Uhuizi and Umuobasi. The plaintiff is from Umueze while the defendants are from Eluama. Each party has contended that the land in dispute is situate in its territory. Their survey plans Exhibits “B” and “C” respectively attempted to depict the location of the land. The big question is “which of the two plan exhibits correctly depicts the land in dispute as being in Eluama or Umueze?…. at page 168……
I have taken a close look at the two plan Exhibits “B” and “C”. It seems to me that the two Exhibits are conspicuously marked “Nkoro” (trench) on the eastern side which apparently separates Eluama from Umuobasi and on close examination one can see that the land in dispute is like a bowel anguished inside a bigger container. That container is Eluama people’s land with a barricade on the eastern side. The barricated is the trench (Nkoro) referred to above. I therefore hold that the land in dispute is situate at Eluama village and not in Umueze.” (The italics is mine).
Earlier on at page 164 of the record of appeal the learned trial Judge stated as follows in his judgment that:-
“Pleadings were filed and exchanged and subsequently both sides had their pleadings amended. In this judgment reference should be made to the amended statement of claim and amended statement of defence. The only issue which appears to have emerged from the parties’ pleadings is whether the land in dispute was the subject matter of customary grant by the forebears of the defendants to the plaintiff’s father Okwaradagu and his relative by the defendants’ forebears or whether the land in dispute was inherited by the plaintiff through an unknown chain of devolution from his original ancestral father down to himself.” (The italics is mine).
At page 172 of the record of appeal the learned trial Judge concluded his judgment as under:-
“On the whole it is my finding that the plaintiff has failed to prove this case on the balance of probabilities. I accept the evidence of traditional history of the land as given in evidence before me by D.W.1 and D.W.6 which is substantially verified by acts of recent events by these witnesses. I have no doubt in my mind that the land in this dispute is situate at Eluama Abukwa and it is only a grant to Umueze plaintiff that can explain the presence of the plaintiff people on the land in dispute. The plaintiff is in possession of the area verged green in Exhibit “C” as a result of grant made to Okwaradagu by the defendants’ forebear. Accordingly this action will be dismissed and is hereby dismissed with N300.00 costs to the defendants.”
Being dissatisfied, the appellants filed immediately the notice of appeal to be found at pages 173 to 190 wherein he “used 14 grounds of appeal and furnished the particulars. With the leave of this court appellant sought and was granted leave to amend his notice of appeal wherein he also raised with their particulars 14 grounds of appeal because of their prolixity, especially, the particulars furnished as the appeal, is narrowed down to the crux of which the appeal turns out reference shall only be made to salient grounds of appeal without their verbose particulars as listed below:-
“Ground 3
Error in law:- The learned trial Judge roiled to properly appreciate the entire issues which called for his determination in the case and thereby erred in law when he held as follows:-
Quote: “The only issue which appears to have emerged from the parties’ pleading… an unknown chain of devolution from his original ancestral father down to himself (supra) as underlined. Particulars of Error
Ground 4
The learned trial Judge failed to give the plaintiff fair hearing on the case especially with regards to the situs or location of the land in dispute and caused a miscarriage of justice by refusing plaintiffs’ application by motion on notice to visit the locus.
Particulars of Error
Ground 13
Error in Law:- The lower court erred in law when it stated as follows:-
Quote: “I have taken a close look at the two plan Exhibits “B” and “C”. It seems to me…..The bigger container is Eluama people’s land with barricade on eastern side.” supra as underlined.”
Following the rules and practice of this court appellant in his brief of argument distilled the issues for determination based upon the grounds of appeal. It is the only issues that are fundamental to the outcome of this appeal that are considered in this appeal. They are issues 3 and 4 in appellant’s brief of argument and also 3 and 4 in respondents’ brief of argument. For case of reference appellant’s issues for determination 3 and 4 are hereby set down below as:-
“(3) Whether the failure of the trial court’s failure to visit the locus did not amount to denial of fair hearing which caused miscarriage of the justice?
(4) Whether or not the trial court properly appraised the evidence in this suit before coming to the conclusion that the appellant did not prove his case.”
Whilst issues 3 and 4 in respondents’ brief are also set down thus:-
“3. Whether it is statutorily mandatory for a trial judge in all land matters to visit the locus in quo just for mere fun of it.
- Whether the plaintiffs who pleaded situs or location of the land in dispute did successively prove the land to be in Umueze of the plaintiffs or did the defendants not rather prove that the land to be in Eluama of the defendants.”
It is pertinent to state that in the appellants’ brief of argument, Issues 3 and 4, appellants contend that rejection by the learned trial Judge after payment of the necessary fees for the locus in quo and for the learned trial Judge to rely in the determination of the crucial issue of the identity of the land in dispute on Exhibits “B” and “C” as stated above amounted to a denial of fair hearing under section 33(1) of the 1979 Constitution of Nigeria. This failure to visit the locus engendered miscarriage of justice, thereby urging the court to allow the appeal.
For the respondent in Issues 3 and 4 contended that it is not in every case in respect of action for right of occupancy especially where survey plans showing the land in dispute as Exhibits “B” and “C” in the instant appeal a visit to the locus in quo is mandatory. The learned trial Judge had a close and hard look at Exhibits “B” and “C” and made the finding of fact that appellant’s land was like a bowel anguished inside a bigger container. That container is Eluama people’s land village and not Umueze, the appellant’s land. In coming to this conclusion the learned trial Judge evaluated the evidence properly and came to a right decision with the finding of fact borne out from the evidence, which finding was not perverse. Therefore, this appeal court should not disturb the finding of fact. The court should dismiss the appeal.
The above reflects the contention of the parties on the visitor non visit to the locus in quo. As stated above the parties joined issues as to the identity of the land in dispute. The learned trial Judge realised the importance of the identity of the land in dispute in a contested issue of title leading to grant of right of occupancy since the promulgation of the LAND USE ACT, though the principle of law to grant or refuse right of occupancy remained the same before and after the LAND USE ACT. The resolution and treatment of the identity of the land in dispute was highlighted above in this judgment making a repetition unnecessary.
In Seismograph Services (Nig) Ltd. v. Ogbeni (1976) 4 SC 85 1976 NSCC Volume 10 page 130 it was held that:-
“3 There being conflict of evidence as to the materials used in the construction of the respondent’s building and the number and extent of the cracks visible on the building, the learned trial Judge was not in a position to evaluate the evidence without a visit to and inspection of the building.”
This case was adopted and followed by this court in CA/PH/55/92 delivered on 5th day of November 1996 between Danien Mbionwu & Two Ors (For themselves and on behalf of the people of Osina Community Orlu) v. Ugorji Obi & 4 Ors (For themselves and as representing their Akokwa Community) reported as 1997 4 NWLR (Pt. 500) page 436 wherein it was held as follows:-
“It seems to me that this is a proper case in which the trial court should have undertaken a visit to the locus in quo in order to clear the conflicts in the evidence of the parties vis-a’-vis their pleadings and their plans Exhibits “A” and  Having regard to the pleadings vis-a-vis the evidence adduced the conflicts would only have been resolved by a visit to the locus in quo with a finding made upon it. See Seismograph Ltd. v. Ogbeni (1976) 4 SC page 85. As this was not the case, in order to do substantial justice to both parties we consider it a fit and proper case for retrial
de novo before another Judge see the case of Abodundu v. The Queen (1959) 4 FSC 70; (1959) SCNLR 162. This is necessary to avoid a substantial miscarriage of justice.”
In the instant appeal the two disputed survey plans admitted as Exhibits “B” and “C” were tendered by the appellants and respondents respectively. No composite plan was made out of the two survey plans. There was no superimposition of the two survey disputed land and to show whether they cover the same parcel or area of land. It is pertinent to state that in the comparison of Exhibits “B” and “C” the only connecting link as found by the learned trial Judge was to quote him:-
“It seems to me that the two Exhibits are conspicuously marked “NKORO” (trench) on the eastern side which apparently separates ELUAMA from UMUOBASI and on close examination one can see that the land in dispute is like a bowel anguished inside a bigger container. That container is ELUAMA people’s land with a barricade on the eastern side. The barricade is the trench (NKORO) referred to above. I therefore hold that the land in dispute is situates at ELUAMA village and not UMUEZE.”
In making the above finding of fact reliance was based as stated upon a look of Exhibits “B” and “C”. There was no link between Exhibits “B” and “C” through co-ordinates having used the same True North origin TN by showing same survey beacons or pillars, but with respect it is an expert who can assist the court through composite plan by establishing by preponderance of evidence of probability that the parcels or pieces of land in Exhibits “B” and “C” cover the same piece of land reference to a trench in both eastern part with respect to the trial Judge was not sufficient to conclude that Exhibits “B” and “C” cover the same parcel of land, the conflict could only have been resolved and properly evaluated and assessed through a visit to the locus in quo which golden opportunity was allowed to slip off notwithstanding payment for the visit by appellant was rejected in my view erroneously. This finding of fact with respect is therefore perverse. Being an appeal court, this court can disturb and interfere with the said finding being an exception to the rule that generally a Court of Appeal is loathe to disturb a finding of fact by the lower court except of course where the finding is found to be perverse as in the instant case for failure to visit the locus in quo to resolve the conflict in the pleadings, evidence of the parties on the crucial issue of the identity of the land. There is much force in the contention of the appellants that the rejection of the application to visit the locus and resolving the same without a composite survey plan of Exhibits “B” and “C” without the assistance of an expert denied appellants of fair hearing under section 33(1) of 1979 Constitution of Nigeria is convincing and meritorious. Much as the court agrees with the contention of the learned counsel for the respondents and being trite law that it is not in every land case that a visit to the locus in quo is mandatory, in the instant case to really resolve the issue as to the identity of the land in dispute as shown in Exhibits “B” and “C” without a composite survey plan of Exhibits “B” and “C” applying Seismograph Services v. Ogbeni (1976) 4 SC 85 a visit to the locus in quo is not only relevant but also mandatory. Respondents’ contention that a visit to the locus in quo was unnecessary is hereby rejected.
Be that as it may, in opening his judgment, the learned trial Judge after stating supra that pleadings were filed and exchanged without consideration of the issues joined, assessment, and evaluation of the evidence of the parties straight away jumped into the conclusion that:-
“The only issue which appears to have emerged from the parties pleadings is whether the land in dispute was the subject matter of customary grant by the forebears of the defendants to the plaintiff’s father, Okwaradagu and his relative by the defendants’ forebears or whether the land in dispute was inherited by the plaintiff through an unknown chain of devolution from his original father down to himself.”
Apart from tracing their title to the radical, owner by inheritance, appellants and respondents joined issues of traditional history, native arbitrations, acts of ownership and possession, to assert ownership. The learned trial Judge without first of all assessing and evaluating the pieces of evidence, based on the joined issues as pleaded that the only issue that emerged from the pleadings was the subject matter of customary grant by the forebears of the defendants to plaintiffs/appellant’s father Okwaradagu and his relative by the defendants/respondents forebears or through inheritance was a wrong evaluation and assessment of the evidence with a short circuit of the issues pleaded, this is contrary to the established duty of court in evaluation of evidence. In Attorney General of Oyo State & Anor v. Fairlakes Hotels Ltd. & Anor No.2 (1989) 5 NWLR (Pt.121) page 255 at 292 SC, it was held on the duty of court in evaluation of evidence that:-
”The primary duty of a trial court is to evaluate all the evidence before it, whether given by an expert or not before coming to a conclusion as to the preponderance of the evidence adduced by the parties.”
In the same vein the Supreme Court observed in Mogaji Lasisi Atanda & 3 Ors (For themselves and Adenko Aje Ojoku Family) v. Salami Ajani & 4 Ors (1989) 3 NWLR (Pt.111) page 511 at 531 and 539 held as follows:-
“(8) A trial court has a duty to make a finding on the evidence before it (Okuwosi v. Ishola (1973) 3 SC 43: Anukanti v. Ekwonyenso (1978) 1 SC 37; Okonojua v. The State (1981) 6/7 SC 1; Mogaji v. Odofin (1978) 4 SC 91 referred to.)
(9) A court must always give full and dispassionate consideration to all issues raised or canvassed before it (Ojogbue v. Nnubia (1972) 6 SC 227; Oyediran v. Amoo (1970) 1 All NLR 313 at 317 referred to).
The guide of the legal consequence of failure to decide on all the issues canvassed before a court was put by Olatawura, J.S.C. in Obi Nwanze Okonji & 4 Ors (For themselves and on behalf of the Umuedogwu Family Ibusa) v. George Njokanma & 2 Ors. (For themselves and on behalf of the Ogbeile Family of Asaba) (1991) 7 NWLR (Pt.202) page 131 at 146 as follows:-
“As it is the law that a court should not deal with issues not before it, so also when a party submits an issue to the court for determination the court must make a pronouncement on that issue except where the issue is submitted to another and the omission of the lower court to make any pronouncement on the issues properly raised before will not prejudice the appeal court looking into it (Ebba v. Ogodo (1984) 1 SCNLR 372 referred to and followed). A point properly raised as an issue cannot be ignored or glossed over in an appellate court.” Applied followed and adopted by this court in the case of Ebe Uka & Anor (For themselves and as representing Ndi Ojiugwo Village of Abam) v. Chief Kalu Okorie Irolo & 5 Ors. (For themselves and on behalf of Ndi Ebe Village of Abam) 1996 4 NWLR (Pt.441) page 218 and at page 235, Onalaja, J.C.A. observed as follows:-
“The crux of this appeal is that the learned trial Judge having failed to consider a fundamental issue being the roots of titles in the consolidated suit what is the legal consequence?
Under our adversarial system of jurisprudence it is a pillar of the rule of natural justice to trial any person before a court of law must have his civil rights and obligations decided by an impartial adjudicator by ensuring fair play, justice and equity as enshrined in section 33(1) of 1979 Constitution. As in the instant appeal where there had been a fundamental breach of failure to decide on all the issues canvassed before it and which led to dismissal of appellant’s case could it be said appellants have had fair hearing of their case.”
Applying the above to the instant appeal the appellant’s complaint of denial of fair bearing is amply justified, the appeal therefore succeeds.
Uwais, Acting Chief Justice of Nigeria (as he then was) observed in Okonji v. Njokanma supra stated below the legal consequence of a failure of a trial Judge to consider all the issues canvassed before him thus:
“Where a court failed to consider an issue properly submitted to it the proper order will be one remitting the case back to the court for a proper consideration of all issues raised Ezeoke v. Nwagba (1988) 1 NWLR (Pt.72) page 616 at 627 adopted.
In conclusion, the appeal is therefore allowed and under section 16 Court of Appeal Act Cap. 75 and Okonji v. Njokanma supra followed and adopted in Uka v. Irolo supra the case SUIT IIOR/60/85 is hereby remitted to the High Court of Imo State Orlu Judicial Division holden at Odu for a retrial de novo before another Judge not Hon. Justice G.O. Oyudo as the judgment delivered by him in the above mentioned suit delivered on Friday 7th day of January 1994 is hereby reversed and set aside with an order of a retrial before another Judge.
The other issues 1, 2, 5, 6 and 7 in appellant’s brief of argument and issues 1, 2, 5 and 6 in respondents’ brief of argument have been subsumed in the consideration of issues 3 and 4 in appellant’s brief of argument also issues 3 and 4 in respondent’s brief of argument.
I am of the view that as the appeal succeeds the appellants are entitled to the cost of this appeal which I fix at N3000.00 against the respondents. The cost awarded by the learned trial Judge in the High Court is hereby set aside. Should the said cost had already been settled or paid, a refund is hereby ordered to the appellants. The cost in the lower court shall abide the new trial.
Other Citations: (1997)LCN/0269(CA)
