Igbanude Obodo & Anor. V. Emmanuel Ogba & Ors (1987)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C

This is an appeal against the decision of the Court of Appeal, Enugu Division Coram Phil-Ebosie, Aikawa and Alu, JJ.C.A. setting aside the judgment of P. K. Nwokedi, J. (as he then was) granting the Plaintiffs in Suit No. E/68/73 a Declaration of title, N400.00 general damages for trespass and a perpetual injunction against the Defendants in that Suit.

In the same judgment, Nwokedi, J. dismissed the claims in Suit No.E/190/77. Incidentally Suit No.E/68/73 was consolidated with Suit No.E/190/77 for hearing. Umuene Town,Olo, Udi Division is made up of four villages or quarters namely Umuonyia, Umuafuke, Umuawata and Amangwu. In Suit No.E/68/73 the people of Amangwu through the Plaintiffs on record sued three sets of Defendants for themselves and representing the Umuafuke Amandim Olo, the Umuonyia Amandim Olo and the Umuawata Amandim Olo. The Claim of the Plaintiffs in Suit No.E/68/73 was for the following:-

(i) Declaration of Title to a piece and parcel of land called “Nkwoagu Amangwu”.

(ii) N400.00 general damages for trespass.

(iii) Perpetual Injunction restraining the Defendants, their servants and/or agents from…..interfering with the said land etc.

Pleadings were ordered, filed and exchanged. From those pleadings, there was no dispute with regard to the Identity of the land the Plaintiffs were claiming. The Plaintiffs’ plan Exhibit 3 and the Defendants’ plan Exhibit 4 refer to one and the same land. The only dispute that went to trial was one solitary issue-the ownership of the land in dispute. The Plaintiffs say the land in Exhibit 3 belongs to them (the Plaintiffs) exclusively, while the Defendants say that the land in dispute belongs communally to all the 4 quarter of Umuene including the Plaintiffs.

In proof of their exclusive ownership, the Plaintiffs pleaded in paragraph 8 of their Statement of Claim:-

(i) Inheritance from their great ancestor and founder Onuigbo as their root of title.

(ii) They also pleaded their various acts of possession and ownership as farming on the land, worshipping their various jujus on the land, erecting a market and constructing roads thereon. In the not too distant past the Plaintiffs made grants of portions of the land in dispute to the C.M.S. Mission for the building of their Teachers Quarters, to the R.C.M. for a school building. They also granted the areas where the Dispensary, Health Centre, and native Court Oye, were built.

(iii) They prosecuted or defended 3 native Court Suits, namely:-

(a) Oye Native Court Suit No. 20/51

(b) Ola/Awha Native Court Suit No. 1/55

(c) Ola/Awha Native Court Suit No. 7/54

How did the Defendants meet this 3-pronged claim of the Plaintiffs The Defendants denied the Root of Title pleaded by the Plaintiffs but they admitted that they and the Plaintiffs descended from a common ancestry from Umuene. The Defendants admitted all the acts of possession pleaded by the Plaintiffs but added that these were communally done. They were not acts done by, or attributable to, the Plaintiffs exclusively. Now coming to the three Court cases pleaded by and relied upon by the Plaintiffs in paragraphs 11, 12 and 13 of their Statement of Claim, all the Defendants pleaded in their own paragraph 9 was-:

“9 As regards paragraphs 11, 12 and 13 of the Statement of Claim the defendants will put the plaintiffs to the strictest proof of the allegations therein. The Defendants say that whatever the plaintiffs did In respect of the land was done with the consent and approval of the defendants before the dispute arose between the parties”.

On the pleadings in Suit No. E/68/73, I must observe:

1. That paragraph 9 of the Statement of Defence above is an insufficient traverse almost amounting to an admission: See Lewis & Peat (MRl) Ltd v. Akhimien (1976) 1 All N.L.R. 460 Akintola v. Solano (1986) 2 N.W.L.R. 598 at p.623 Atolagbe v. Shorun (1985) 1 N.W.L.R.360.
2. That by admitting the Plaintiffs’ possession of the land in dispute as well as their various acts of possession the onus shifts even on the pleadings, to the Defendants, by the operation of Section 145 of the Evidence Act, to prove that the Plaintiffs’ possession and acts of possession were not done in their capacity as exclusive owners: see Onyekaonwu v. Ekwubiri (1966) 1 All. N.L.R. 32.

There above is the summary of the issue and onus of proof in Suit No. E/68/73.

There was however another Suit No. E/190/77 filed four long years after Suit No. E/68/73. In Suit No. E/190/77 three members of Umuafuke quarter of Umuene sued 3 sets of Defendants representing the 3 remaining quarters of Umuonyia, Umuawata and Amangwu (the Plaintiffs in Suit No. E/68/73). At the close of pleadings in Suit No. E/ 190/77 the Two Suits E./68/73 and E/190/77 were on the application of Mr Nwanya, learned counsel for the Plaintiffs in Suit E/190/77 consolidated for hearing and were heard together.

It is now very necessary to look critically at the judgment of the trial Court to see whether the learned trial judge correctly identified the issue or issues in the case and further whether he made any findings of fact on those issues. Secondly from the nature of the dispute between the Plaintiffs of Amangwu and the other 3 remaining quarters of Umuene much will depend on which side the trial Court believed. The credibility of the witnesses who testified will thus be an essential and controlling factor in a case like this. In such a situation the learned trial judge must expressly believe one side and disbelieve the other. If this is not done, it may be difficult, if not impossible, to justify the findings made. At page 166 of the record of proceedings, the learned trial judge who saw the witnesses called by both sides concluded thus at lines 17 to 23:-

“On the whole, I have no hesitation in accepting the evidence of the Plaintiffs and their witnesses. I reject the evidence of the Defendants where they conflict with the plaintiffs’. The Defendants have not denied the allegation of trespass. They claim to have entered the land as owner thereof which claim has been disproved.”

An appellate Court is on an uphill task where it has to deal with conflicting testimony especially where the question turns upon the truthfulness of particular witnesses and their credibility.

It is on this rather cautious note that I will now proceed to review the findings if any, made by the learned trial judge, P.K. Nwokedi, J. (as he then was). That the learned trial judge correctly identified the central issue in this case is put beyond doubt when he observed at p.162.

“The main issue is whether the piece of land in dispute is communally owned or not”.

Having stated the issue correctly the learned trial judge then reviewed all the available evidence and held:

1. “In both Exhibits 3 and 4 and the pattern of settlement it shows that the Plaintiffs’ village is within the land in dispute. The other three villages live outside the said land.
2. There is evidence that each village enjoyed exclusively where it resided and what may be regarded as its backyard, that is “Owelle” to the said village. I accept that the area in question (the land in dispute) is Imezi Amangwu.
3. I am satisfied that the communal ownership of land had long ceased to operate among the four sections of Umuene. Each section owned exclusively its lands.
4. Exhibits 1 and 2 (the Native Court cases) are quite explicit of the fact that the cases therein were in each case between the Amodu people and Amangwu people. The Amangwu representatives were sued not as representing Umuene people as a whole but only Amangwu family.
5. “The Defendants knew of these cases. They did not intervene as co-owners. The suits decided that the land in dispute belonged to the plaintiffs of Amangwu”.
6. “The present defendants were aware that the suits were fought on the basis that the land in dispute belonged to Amangwu”.
7. “They (the other 3 quarters of Umuene) stood by while the cases in Exhibits 1 and 2 were fought and decided”.

These were the findings of the learned trial judge with regard to Suit No.E/68/73.

Coming to Suit No.E/190/77 the learned trial judge found that:

1. “The evidence adduced by the defendants was unreliable and in some cases like the Native Court Suits contradicted by other credible evidence”.
2. “The defendants do not live on the land in dispute as the Plaintiffs do”.
3. “The juju shrines claimed by the Defendants are the same juju shrines owned and worshipped by the plaintiffs. This was a clever subterfuge by the Defendants”.
4. “It took the Defendants over four years after Suit No.E/68/73 to file their cross-action in E/190/77”.
5. “In Suit E/190/77 it was not all the remaining 3 quarters of Umuene who took the action against Amangwu as should have been expected if the land were really communal to all the four quarters. Rather Umuafuke sued the remaining 3 quarters of Umuonyia, Umuawata and Amangwu”
6. “There were boundary walls in Exhibits 3 and 4 and people do not build boundary walls across their communal land”.

It was after the above laborious exercise that the learned trial judge found for the Plaintiffs and awarded them the Declaration they sought, N400.00 general damages for trespass and a perpetual injunction.

It was against this judgment that the 1st, 2nd and 3rd Defendants in Suit E/68/73 and Plaintiffs in Suit E/190/77, all from the Umuauke quarter of Umuene, appealed to the Court of Appeal Enugu Division. In a rather surprisingly short judgment of barely four pages, Aikawa, J.C.A. with Phil-Ebosie and Katisina Alu, J.C.A. concurring allowed the Defendants’ appeal and set aside the judgments of the learned trial judge in E/68/73 and E/190/77 and concluded-“I decided on the same evidence that the land in dispute is communally owned by both parties”.

The Plaintiffs in Suit No. E/68/73, the people of Amangwu, have now appealed against the judgment of the Court of Appeal, Enugu Division to this Court on 4 original Grounds and 4 Additional Grounds of Error in Law.

Before dealing with the grounds of appeal, I will like to make a few general observations. This case calls once more, for a re-affirmation of the time honoured principles governing the different, though related, roles of a trial Court and an appellate Court. It also calls for a re-definition of the proper attitude and approach of an appellate Court towards issues of facts and findings of fact of a trial Court which had the peculiar advantage of seeing the witnesses, watching them give their evidence, observing their demeanour, and finally making findings of fact, in the cases now on appeal based upon the credibility of the witnesses who testified. Our law reports are replete with decided cases illustrating those basic principles. The issue in any particular case is therefore neither the paucity of relevant decisions nor the clarity of the points decided but whether or not the appellate Court strictly adhered to those principles:

Principle No.1:

The first principle is that, as its name implies, it is the trial Court that is charged with the responsibility of trying cases, which means trying issues. It is therefore the business of the trial Court to decide those issues and thus decide the dispute. The business of an appellate Court is not to re-open the dispute and start trying the case, as it were, de novo,far from it. The proper function of an appellate Court is to over-see, to superintend and to review the way the dispute and the issues arising therefrom were tried, to see whether the trial Court used the correct procedure and/or arrived at the right and proper decisions:Igboke Oroke v. Chuku Ede (1964) N.N.L.R. 118 at pp.119/120. As was observed in the Australian case of da Costa v. Cockburn Salvage & Trading Property Ltd. 124 C.L.R. 192, “the issue before an appellate Court on the facts should be-are the findings of fact made by the trial Court right or wrong” It is not what findings would the appellate Court have made if it had been the trial Court As was aptly stated in Egonu v. Egonu (1978) 11/12 S.C. 11 p.129 an appellate Court would not descend into the arena of contest to usurp the function of the trial judge in the evaluation or assessment of evidence unless it is clear that the trial judge failed in that particular and peculiar function of his.

Arising naturally from the first principle above is the second principle which is:

Principle No.2:

Ordinarily it is not the function of an appellate Court to disturb the findings of fact of the trial Court unless such findings are shown to be unreasonable or perverse and not a result of a proper exercise of judicial discretion: Ntiaro v. Akpam 3 N. L. R. 9 at p.10 Where the appellate Court is in doubt as to whether the trial Court was right or wrong, it is bound to resolve such doubt in favour of the trial court.The point here is that the onus is on the appellant to satisfy the appellate Court that the decision appealed against was wrong. Where doubt exists then that onus has not been discharged. Macaulay v. Tukuru 1 N. L. R. 36 at. PAO Akinloye and Anor v. Eyiyola and Ors (1968) N . M. L. R. 92 at p.98; Obisanya v. Nwoke (1974) 6. S.C. 69 at P.80; Victor Woluchem and Ors. v. Chief Gudi and Ors. (1981) 5 S.C. 291 at pp.326 to 330; Chief Frank Ebba v. Chief Warri Ogodo (1984) 4 S.C. 84 all these cases and more state the basic principle that where a trial Court has properly evaluated the evidence and made findings of fact on such evidence, it is no longer open to an appellate Court to embark on a fresh appraisal of the same evidence, or to disturb the findings of the trial Court, or to substitute its own views for those of the trial Court. In other words when a case is before an appellate Court there is usually a presumption that the decision of the Court below on the facts was right and the onus is on the appellant to rebut that presumption: Colonial Securities Trust Co Ltd. v. Massey & Ors (1896) 1 Q.B.D. 38. Evidence that would overcome this presumption would in the words of Wood, L.J. in The Alice and the Princess Alice (1868) L.R. 2 P.C. 245 at p.252 is “evidence that would be over-powering in its effect…… ”

With these two fundamental principles as guides, I will now consider the grounds of appeal filed and argued in the Briefs of counsel and elaborated by oral evidence in Court. I will deal with the additional grounds first. The additional grounds have been numbered grounds 5, 6, 7 and 8 respectively.

Grounds 5 complained:

“5. The Court of Appeal erred in law when in spite of Exhibit 5 it held that “the land in dispute is communally owned…”

Particulars of Error

(i) The controversy between the parties was whether the Appellants of Amangwu owned the land in dispute exclusively or whether it was owned communally by the four quarters of Umuene.

(ii) By exhibit 5 Umuonyia and Umuawata sections state that they are not co-owners of the land in dispute and conceded exclusive ownership to the Appellants.

(iii) The two sections of Umuonyia and Umuawata could not and in fact did not claim communal ownership of the land as they have been estopped by Exhibit 5.

The grounds of appeal to the Court of Appeal are copied at pages 169 and 170 of the record of proceedings. Not one of the 4 grounds mentioned Exhibit 5. Later on the grounds of Appeal to the Court of Appeal were amended by adding grounds 6, 7 and 8. These are copied at pages 187 to 189. Again not one of the new grounds referred to Ex 5. In other words the appeal to the Court below was argued as though Ex 5 never existed. In his judgment, the learned trial judge commented on the attitude of the Umuawata and Umuonyia quarters of Umuene thus:-

“The Umuawata and Umuonyia have not even bothered to file a Statement of Defence in the second suit. They did not even bother to testify in evidence. It seems to me that it is obvious by this attitude that Umuonyia and Umuawata are not really in alliance with Umuafuke in their present quest for land… Umuonyia and Umuawata cannot be so uninterested in participating actively in the present tussle if they also are co-owners of the land in dispute”.

The question then arises-Were they really co-owners of the land in dispute It is here that Exhibit 5 comes in. In Exhibit 5 the chiefs of Umuawata and Umuonyia quarters of Umuene wrote to the trial Court dissociating themselves from the Suit filed against the people of Amangwu who they conted “are the owners of the land said to be in dispute”. In the face of Exhibit 5 one wonders how the Court of Appeal can say that the land in dispute is communally owned by the four quarters of Umuene including Umuawata and Umuonyia. The theory or claim of communal ownership of the land in dispute naturally and irretrievable founded on the rock of Exhibit 5. This ground of appeal therefore succeeds.

Ground 6 of the grounds of Appeal complained that:

“6. The Court of Appeal erred in law when having stated that: I am therefore of the opinion that the learned trial judge has not evaluated the entire evidence adduced before him, I therefore apply the principles laid down in the case of Etowa Enang and Ors. v. Fidelis Ikor Adu (1981) 11-12 S.C. 25 at pp.38-40 and re-evaluate the entire evidence adduced in this proceeding… In conclusion I decide on the same evidence that the land in dispute is communally owned”.

With the greatest respect to the opinion of the Court below, there seems to be a misconception of what this Court decided in Etowa Enang & ors. v. Ikor Adu & ors. supra. There my learned brother Nnamani, J.S.C. was at great pains to warn appellate Courts to approach findings of fact of trial Courts “with extreme caution”. If the trial judge has unquestionably evaluated the evidence before him” continued Nnamani, J.S.C. “It is not for the Court of Appeal to re-evaluate the same evidence and come to its own conclusion”. This was exactly what the Court of Appeal said it would do and what it in fact did in this case.

If the Court below, again with respect, fully appreciated the principles laid down in Etowa’s case supra it would not have unduly disturbed the formidable findings of fact of the learned trial judge. In no where in its four paged judgment did the Court of Appeal refer to any of the 7 specific findings of fact of the trial Court in Suit E/68/73 or the 6 findings in E/190/77; in no where did that Court show how those findings were perverse; in no where did the Court below try to show that those 13 findings of fact were against the natural drift of the evidence or where not and could not be supported by the evidence led.

It is obviously quite abrupt and, again with the greatest respect, I may add erratic of the Court below to conclude almost in vacuo that “the learned trial judge did not evaluate the entire evidence” and then start on its own re-evaluation. What was the learned trial judge doing when he made 13 specific findings of fact If that is not evaluating evidence, I then do not know what is.

The authorities on this branch of the law confirm that there is a universal reluctance on the part of appellate Courts to reject a finding on specific facts particularly where such a finding is based on the demeanour, bearing or credibility of witnesses who testified before the trial Court. No appellate Court can believe or disbelieve witnesses it never saw or heard. Sir Lancelot Sanderson in Kuma v. Kuma 5 W.A.C.A p. 9 (Privy Council) agreed that in a case which depended largely (like the one now on appeal) on verbal evidence of witnesses the trial judge had the great advantage of seeing, hearing and watching the demeanour of those witnesses. If he accepts the evidence of the plaintiffs and his witnesses in respect of material questions in issue an appellate Court would not interfere. The same principle was followed in Macjaja v. Ibok 12 W.A.C.A. 148 at pp. 149/150. In the case on appeal the trial Court believed and accepted the evidence of the Plaintiffs and their witnesses. It rejected the evidence of the Defendants/ Respondents. On what evidence one may now ask, did the appellate Court below find that the land in dispute was communally owned That Court could not have believed the Defendants on the printed evidence. It did not even say it believed them.

The net result will then be that the Court below found for the Defendants on no credible evidence. And there lies the danger of appellate Courts tampering with the findings of fact based on the credibility of witnesses. In the case now on appeal, it can not possibly be said that there were no evidence, no facts, and no rational interpretation of those facts which would sustain the value judgment of the learned trial judge. That being so ground 6 of the Grounds of Appeal therefore succeeds.

Ground 7 complained that:

“7 The Court of Appeal erred in law in not considering the effect of Section 145 of the Evidence Act on the case before it.

Particulars of Error

(i) There was sufficient evidence as shown on Exhibits 1 and 2 that the Appellants of Amangwu have been in effective possession of the land long before the 1950s. .

(ii) It is also admitted by the Respondents that the Appellants are still in possession even at the time of trial”.

In paragraphs 9 and 10 of their Statement of Claim in Suit No.E/68/73, the Plaintiffs of Amangwu pleaded possession of the land in dispute and enumerated their various acts of possession namely:

(i) Farming portions of the land;

(ii) Reaping economic trees thereon;

(iii) Establishing a market on the land;

(iv) converting the then existing foot-paths into motorable roads;

(v) Granting portions of the land to the C.M.S. for teachers quarters, to the Roman Catholic Mission for School premises; to government agencies for the erection of a Dispensary, health Centre and Native Court.

These various acts of possession pleaded in paragraphs 9 and 10 of the Statement of Claim were pleaded to have been “done without interference from the Defendants”.

The Defendants in answer to the above averments admitted in paragraph 7 of their Statement of Defence that:

“Both the Plaintiffs and the Defendants as descendants of Umuene farmed and reaped economic trees on the land”.

There was however a denial “that the plaintiffs exclusively performed any acts of ownership on the land in dispute”. With regard to the grants pleaded in paragraph 10 of the Statement of Claim, the Defendants pleaded in their paragraph 8 that “the Umuene quarter jointly granted the land in dispute to the C.M.S. and R.C.M. and to Native Authority”.

The effect of the admissions made by the Defendants in paragraphs 7 and 8 of their Statement of Defence is that the Plaintiffs can now invoke the presumption contained in Section 145 of the Evidence Act that they are exclusive owners of the land in dispute until the contrary is proved: see Onyekaonwu v. Ekwubiri supra.

Did the Defendants succeed in establishing that the land in dispute is communally owned On the face of Exhibit 5 and the rejection and no acceptance of the evidence of the Defendants by the trial court, it cannot be said that the Defendants have discharged the onus cast on them by Section 145 of the Evidence Act that the Plaintiff/Appellants were not exclusive owners of the land in dispute. The Court below erred in not adverting to the effect of Section 145 on the Evidence Act on the case before it. Ground 7 therefore succeeds.

The last point I will like to consider is the impact of Exhibit 1 and 2. The 4th Ground of Appeal dealt with this. Ground 4 complained that:

“4 The Court of Appeal erred in law in holding that “the land in dispute is communally owned by both parties” in view of Exhibits 1 and 2

Particulars of Error

(i) Exhibits 1 and 2 concern Amangwu people.

(ii) The Amangwu people were sued not as representing Umuene.

(iii) Exhibits 1 & 2 decided that the lands belong to the people of Amangwu i.e. present Appellants.

(iv) The present Respondents were aware that the Suits in Exhibits 1 and 2 were fought on the basis that the land in dispute belonged to Amangwu people i.e. Appellants.

(v) The Respondents stood by during the contest of Exhibits 1 and 2 and consequently are bound by the decision in Exhibits 1 and 2″.

In Exhibit 1, one Okonkwo Ohagwu of Amodu-Ezema Olo sued for himself and his people. He sued Ozo Mabuoghu and 28 others of Amangwu, Amandum Olo. This suit was not brought against the Defendants of Amangwu “for themselves and their people of Umeuene”. It was the Defendants of Amangwu that were sued. The Defendants defended the action as people of Amangwu. If the land then in dispute in 1951 was communal to the four quarters of Umuene, one wonders why the other 3 Sections kept quiet.

The judgment in Exhibit 1 was “for the Defendants for the whole portion of the area of Ngene Ogbele claimed”. All the appeals in Exhibit 1 ended in favour of the Defendants in that case – (Oye Native Court Suit 20/51) – the people of Amangwu. Exhibit 2 dealt with Ola/Awha Native Court Civil Suit No. 7/54. The Residents Review was No.91/55. Here again the Defendants of Amangwu won. From Exhibit 1 and 2 any other quarter in Umuene is stopped from claiming ownership of the land then in dispute and now in dispute, including the present Defendants of Umuafuke who were Plaintiffs in Suit No.E/190/77.

If the present Respondents claim the land in dispute either as theirs or as communal as they did in Suite No.E/190/77, they will be stopped by the fact that they had an interest in the lands covered by Exhibits 1 and 2 but stood by and watched the people of Amangwu do the fight for them, and they will be bound by the decision in Exhibits 1 and 2 that the land belongs to the people of Amangwu. Abuakwa v. Adanse (1957) 3 All.E.R.559: Esiaka v. Obiasogwu (1952) 14 W.A.CA.178: Yode Kawao v. Kwasi Coker (1931) 1 W.A.CA. 1962.

It was wrong for the Court below to ignore Exhibit 1 and Exhibit 2 and dismiss the Plaintiffs’ claim to exclusive ownership of the land in dispute.

Learned counsel for the Respondents, Mr. Anyamene, S.A.N. conceded that the Court of Appeal did not advert its mind to the main issues in the appeal and did not critically look at the findings of fact made by the learned trial judge. In his Brief however, Mr Anyamene attacked Exhibits 1 and 2 and argued vigorously and cited many cases to show that they do not constitute estoppel per rem judicatam. Of course they did not and do not, and the Appellants never argued that Exhibits 1 and 2 constituted estoppel per rem judicatam. Estoppels by standing by is but a species of estoppels by conduct. It is a kind of equitable estoppels and is applied to a situation where because a party omitted to intervene in a pending action affecting his interest, he is concluded by the result of the action although he was not a party thereto. Mr Anyamene’s objections are similar to those taken by the trial judge in Atta v. Agyei (1952) 14 W.A. CA. 149 at p.150 “that taken together the two previous decisions did not in fact and in law determine the issue of ownership of the land in dispute, the parties in the previous action were not the same, the issues to be determined were not the same, the evidence required in support was also not the same”. The West African Court of Appeal at p. 152, relying on In re Lart Wilkinson v. Blades (1896) 2 Ch.788m held “that the first Plaintiff/Appellant Isa was estopped by his conduct”. Also in Marbell v. Akwei andAkweiv. Cofie (1952) 14 W.A.CA. the West African Court of Appeal relying on Wytecherley v. Andrews (1872) L.R. Courts of Probate & Divorce Volume 2 p. 327 held that “if a person was content to stand by and see his battle fought by somebody else In the same interest, he is bound by the result…….” If the other 3 quarters of Umuene knew that the land in dispute was communally owned they should have intervened in Exhibits 1 and 2 to prevent a stranger village claiming their land. They did not do this. They are therefore bound by the outcome of Exhibits 1 and 2. It seems to me of the very essence of justice that if the other 3 quarters of Umuene, including the present Respondents, showed no interest in the land in dispute in Exhibits 1 and 2 (almost the same are now in dispute) and they were by their conduct then saying that the land was not theirs, they should not now be allowed to claim the very same land as communal to them and the Appellants.

Mr Anyamene, S.A.N., concluding his oral argument urged the Court to invoke its general powers under Order 8 Rules 12(2), 12(3) and 12(5) and make any order that the interest of justice may dictate. I will consider these Sub-rules separately. Under Order 8 Rule 12(2) this Court has the power to “draw inferences of fact and give any judgment and make any Order which ought to have been given or made”.

This Rule 12(2) will apply to appeals where there is no dispute about the facts, where the only dispute is the inference to be drawn either from agreed facts or facts as found. In such a case an appellate Court is in as good a position as the trial Court to draw the correct inference. If therefore the trial Court was wrong in the inference it drew, an appellate Court can correct it. The case now on appeal deals with the credibility of witnesses and specific findings of fact made by a trial judge. In such a case Order 8 Rule 12(2) is inapplicable: Benmax v. Austin Motor Co. Ltd. (1955) A.C. 370 at p.371 and P.375. Sub-rules 3 and 5 of Order 8 are both irrelevant to any issue in this appeal.

In the final result, this appeal ought to be allowed and it is hereby allowed. The judgment of the Court of Appeal, Enugu Division dated 17th day of September 1985 is hereby set aside as well as all the consequential Orders it made. The judgement of P.K. Nwokedi, J. (as he then was) dated 30th March 1981 is hereby restored. The Appellants are entitled to their costs in all the three Courts. The costs in this Court are assessed at N300.00; in the Court below at N250.00. The costs the High Court remain as assessed by the learned trial judge.

ESO, J.S.C.: I have had the advantage of preview of the judgment just read by my learned brother Oputa, J .S. C. I am in full agreement with the reasoning and conclusions reached by my learned brother in his judgment and will adopt them.

It is most surprising that the Court of Appeal, which is set up by the Constitution to sit in judgment over another Superior Court, could show such an abysmal ignorance of its role and indeed of the case of the Appellants and the Respondents by what is regrettably but respectfully lackadaisical attitude to the full and analytical treatment given by the Trial Court to the assemblage and evaluation of the evidence placed before it. I do not see how the Court of Appeal could have successfully done justice to the case by the four abstruse pages that go in its name. Indeed, the Respondents’ Brief is a better “get up” than the judgment given by the Court of Appeal.

I am not saying that a short judgment by the court of Appeal could never dispose of volumes in the judgment of a Trial Court but there should be shown by the Court of Appeal, in its judgment, at least a modicum of understanding of the case before and dealt with by the Trial Court. Otherwise, a Court of Appeal cannot justify its constitutional existence and role of reviewing the facts and the law before a Trial Court.

I would therefore also allow the appeal, which is hereby allowed. I abide by all the orders contained in the aforementioned judgment of my learned brother Oputa J.S.C.

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SC.95/1986