Leonard Okere & Ors. V. Titus Nlem & Ors. (1992)

LawGlobal-Hub Lead Judgment Report

B. WALI, J.S.C.

The short point for determination in this appeal is whether the Court of Appeal exercised its discretion rightly in refusing the appellants extension of time to appeal to the Court of Appeal against the judgment of the trial court dated 24th June 1985. It is also to be noted that on the day the appeal came up for hearing neither the appellants nor their counsel, nor the respondents nor their counsel appeared. The court having been satisfied that both parties were notified with hearing date, took it that both parties have adopted their briefs which they have already filed. See Order 6 rule 8 (6) of the Supreme Court Rules, 1985.

The appellants who were the plaintiffs in the trial High Court of Owerri Judicial Division of Imo State, filed an action in that court asking for-

“(a) A declaration that the villagers of Umuanyim in Umuekwune town, comprising of the kindreds of the plaintiffs and the defendants are entitled to customary right of occupancy of that piece and parcel of land known as and called “Egbelu” and coloured pink in plan No ASNL/IM/26/LD situate at Umuanyim in Umuekwune in Owerri Local Government Area within Owerri Judicial Division with an annual rent of N10.00.

(b) A declaration that the Defendants have no right to turn the said land coloured pink in Plan No. ASNL/lMI26/LD into an agricultural palm plantation of their own without the consent of the plaintiffs.

After both parties had filed and exchanged pleadings, the case proceeded to trial. Evidence was adduced on both sides, and the learned trial judge in a considered judgment, made the following findings:

1. “From the evidence before me, it is clear that the plaintiffs are not quarrelling with the fact that the 1st defendant is farming on the portion of Egbelu land in dispute. Rather, their case is that by cultivating palm trees on it he has turned it into his exclusive farm land. In other words, they are quarrelling with the act of user and not the right to use the Land in dispute. It is quite clear from the evidence that the whole of Egbelu land is agricultural land. It is, therefore, difficult for me to appreciate how the fact that the 1st defendant has cultivated palm trees on a portion of Egbelu land can raise a real issue in the case.”……………

2.”I am constrained to hold that since from the evidence all the members of Umuanyim family are free to clear or deforest any portion of Egbelu land for purposes of farming, the mere fact thatone of such members had decided to cultivate palm trees on a portion so cleared does not change the character of user which is essentially agricultural.

The evidence called by the plaintiffs on which they asked for the first arm of relief is that the land in dispute was deforested by strangers, and therefore, the defendants cannot lay claim to it. As I said, this appears unrealistic and I cannot order the declaration in the manner it has been framed in the first relief sought for I find as a fact that a member of Umuanyim family who cleared a portion of Egbelu land even though by strangers can rightly lay claim to it. On the preponderance of evidence I am of the view that the defendant’s case is stronger.”……………….

3. “There is no evidence before me that where a member of a family is entitled. as a matter of custom, to farm on the family land he has first to obtain the consent of the rest of the members of the family before he develops a plantation of palm trees on it. In fact, this aspect of the plaintiffs’ relief falls outside the issue before the court, nor was it pleaded that under Umuekwunne customary law that such consent is necessary. The defendants by cultivating palm trees on the land are not alienating or disposing of that portion of the land which remains within the family with the palm plantation thereon. I do not, therefore, see how this again could constitute a real issue for purposes of a declaratory relief…………….
4. “Even if this is a case where the relief sought by the plaintiffs meets the requirements of concrete adversense (sic) the court will have to consider the balance of convenience, the evidence led on both sides, before exercising its discretion to grant a declaration sought. It is abundantly clear from evidence on both sides that several members of Umuanyim family have portions of Egbelu land to which they lay exclusive claim. But ( have no evidence that the 1st defendant has any particular portion other than the land in dispute to which he as a member of the family should equally lay exclusive claim. My view on the whole is that this is not a case where a declaration ought to be made. If the members of the family decided to partition Egbelu land, this is a separate issue. They could go to court for that purpose and ask for the partition of Egbelu land. The court has been told that the 1st defendant has been making use of the land in dispute for purposes of farming for the past 39 years. It is inequitable to grant the declaration sought in the second arm of the plaintiffs’ relief, because the plaintiffs are guilty of laches and secondly. it will serve no useful purpose to simply declare that he has no right to turn the said land in dispute into agricultural plantation. This will not take the plaintiffs anywhere.”

He then finally made the following order-

“…that both parties should go back and make use of Egbelu land as they have been doing before and that this action is misconceived and lacking in substance. The action is hereby accordingly dismissed. No order as to costs.”

A year after the judgment of the trial court, the plaintiffs filed an application in the Court of Appeal for enlargement of time within which to file Notice and Grounds of Appeal to that Court. After some protracted adjournments of the application for over a year, it was argued on 5th November 1987 before S.N. Onu. O. Kolawole and B.A. Omosun, J.J.C.A and ruling was reserved. On January 25th 1988, Onu, J.C.A. delivered the Ruling of the Court (to which both Kolawole and Omosun. JJ.C.A, subscribed) in which the application was refused.

The plaintiffs have now appealed to this Court against the Ruling of the Court of Appeal.

Henceforth both the plaintiffs and the defendants would be referred to in this judgment as the appellants and the respondents respectively.

With the Notice of Appeal, the appellants filed 5 grounds of appeal. Briefs were filed and exchanged by the parties as required by Order 6 rule 5 of the Supreme Court Rules, 1985 (as amended).

In the brief filed by the appellants, the following 4 issues were formulated for determination –

“1. Did the Court of Appeal place a correct interpretation on the judgment of the trial court when it held that in spite of the Lower Court’s order dismissing plaintiffs’ claim that the land in dispute is communal to both plaintiffs and defendants/respondents the plaintiffs still had the option to sue the respondents afresh to partition the Egbelu land.

If the answer is No, can the Court escape the inescapable conclusion that the plaintiffs were in fact misled by the equivocal misleading terms of the judgment of the trial Court. Is the order of dismissal entered by the trial Court the correct order having regard to the admissions of parties that the Egbelu land in dispute is a communal land to both parties.

2. Whether the remarks of the Supreme Court in Ojora v.Bakere (1976) J.S.C. 47 at p.52 and in Lamai v. Orbih (1980) 5-7 S.C. 28 at pp. 33-34 apply in circumstances where Counsel’s duty to his clients had ceased by operation of law. Do the Supreme Court remarks displace the provisions of Sections 87 and 88 of the Evidence Act. Did the Lower Court consider whether Plaintiffs/Appellants’ non compliance with rules of Court in failing to file Appeal within time was or was not wilful as provided by Order 7 Rule 3 of Court of Appeal Rules.
3. At Court of trial, was the party on whom the burden of proof is thrown required to begin and state his case as required by law If the answer is No, what is the legal effect
4. Whether there is any admissible evidence proffered by and on behalf of the 1st Defendant/Respondent to show that the Egbelu land in dispute has become his exclusive personal property having regard to the five ways laid down by the Supreme Court on how to prove ownership of land.”

The respondents did not formulate any issue for determination in their brief. They are deemed to have adopted the issues formulated in the appellants’ brief particularly when they proceeded in their said brief, to reply to the appellants’ arguments proffered on the issues.

As the arguments presented by the appellants in support of the issues formulated for determination are muddled up, I consider it better and more convenient to treat them together in this judgment.

It was the contention of learned counsel for the appellants that the learned trial judge having found that the whole of Egbelu land is a communal property belonging to both the appellants and the respondents respectively, it was wrong of him to refuse to grant the relief sought in paragraph 19(a) of the statement of claim and to dismiss the case. He submitted that the subsequent remark by the learned trial judge that both parties should go back and make use of the Egbelu land as they have been doing that “if the members of the family decided to partition Egbelu land … they could go to court for that purpose” makes the judgment equivocal and misleading. He also submitted that it was as a result of the equivocal statement in the judgment that led the appellants into the belief that all was alright for them and that they could go and enter any part of Egbelu land as they used to do, lie further submitted that it was as a result of this misapprehension of the judgment that led them into a delay in filing the appeal on time. He referred to (i) the grounds of appeal in support and submitted that the grounds of appeal raise issues of law which call for the determination of the Court of Appeal to wit – the interpretation of the concluding part of the judgment vis-a-vis the findings in that judgment and the question of the application of Order XLII Rule 2 of the High Court rules, Cap 61. Laws of the defunct Eastern Nigeria, applicable in Imo State, and (ii) the affidavits in support of the application which he submitted sufficiently explained the reason why the appeal was not filed in time. He finally submitted that as the conditions precedent for granting the application under Order 3 Rules 4(1) and (2) of the Court of Appeal Rules, 1981 and Section 25(4) of the Court of Appeal Act. 1976 have been met, the Court of Appeal was wrong in exercising its discretion to dismiss the application. He urged this Court to allow the appeal and grant him the relief sought. He relied on several authorities in support of his submissions amongst which are ADEJUMO v. AYANTEGBE (1989) 3 NWLR. (PT.110) 417. OKPALA v. IBEME (1989) 2 NWLR, (PT.102) 208 OKE-BOLA & ORS. v. MOLAKE 5. UILR (PT. 11) 204.READEWUMI & ORS. (1988) 3 NWLR (PT.83) 483. KIYAWA v. MADAWAKI (1986) 2 NWLR (PT.20) 113, UNILAG v. AIGORO (1985) NWLR (PT.1) at P.143. BELLO ISIBA & ORS. v. HANSON and THOMAS (1967) 1 ALL NLR 8 at P.10 and OCHONMA v. UNOSI (1965) NMLR 321 at P.322.

In answer to the appellants’ arguments, learned counsel for the respondents submitted that the appellants’ claims were not only rightly dismissed by the trial court, but also that the judgment is neither misleading nor equivocal and in that regard, the Court of Appeal was equally right in dismissing the application by saying that it was “satisfied with the explanation of PAULINUS OKERE and JARIATH NWANGWU dovetailing the averments of the respondents, that there was no iota of doubt that the judgment (Exh.C) was a dismissal of the applicants’ case and whatever they alleged with regard to their former counselor lariath Nwangwu (Clerk of Court) is misconceived and lacking in substance and this is more so, that they chose the line of least approach by trespassing unto the land instead of either appealing against the decision or suing the respondents afresh to partition Egbelu land”: He submitted that the Court of Appeal was right in applying the decision in OJORA v. BAKARE (1976) 1 SC. 47 and LAMAI v. ORBIH (1980) 5-7 SC. 28 to refuse to extend time to appeal. He urged this Court to affirm the decision and order of the Court of Appeal.

In deciding this appeal, I have not found it easy to follow the arguments of the appellants as some of them are more relevant to the decision of the substantive issues being sought to be raised in the substantive appeal. Those that are relevant, have not been put in their proper places. The whole thing is muddled up.

In an application of this nature, and for the appellant/applicant to succeed, he must show –

1. good and substantial reasons for failure to appeal within the period prescribed and
2. Grounds of appeal which prima facie show good cause why the appeal should be heard.

In explaining the reasons for failure to appeal within the prescribed period, the appellants, referred to and relied on the affidavits sworn to by Leonard Okere (1st appellant), Paulinus Iheanyichukwu Okere, and Jariath O. Nwangwu.

These affidavits have sufficiently explained why the appellants failed to appeal in time. In paragraph 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the affidavit sworn to by Leonard Okere which are as follows: –

“2. That I am a farmer. That I am not familiar with the language of the Court and the nature of Court’s orders.

3. That the other three plaintiffs have authorised me to swear to this affidavit.
4. That immediately after the judgment was delivered by the trial judge, the Clerk of Court interpreted what the judge said in his judgment to us.
5. That the Clerk of Court informed us that the judgment of the Court is that both parties should go back to our village and make use of the land in dispute as we have been doing before.
6. The Clerk of Court further informed us that it was the trial Court’s view that we can ask for the partition of the Egbelo land if we so decide.
7. That the Clerk of Court never informed us that the trial court made a finding that Titus Nlem, the 1st Defendant had acquired possession of the land in dispute to which he can lay exclusive claim. The Clerk of Court never informed us of our right to appeal.
8. That in the Circumstance, we all went home satisfied that the court has recognised that both parties to the suit communally own the land called “Egbelu” and consequently in 1986 we, in the usual manner cleared the whole of Egbelu land shared it and cultivated it as we have been doing before.
9. But to our greatest surprise Titus Nlem the 1st Defendant on 17th April, 1986 brought a suit against us claiming damages for trespass and injunction.
10. When we took the new suit brought by Titus Nlem to our present Solicitor S.1. MBACHU ESQ., on 8th May, 1986 he informed us that although the trial court made a finding that the Egbelu land belonged to both parties communally he failed to grant the relief we sought namely a declaration that the Egbelu land belonged to the kindred families of both parties communally.
11. Our Counsel S.I. MBACHU ESQ., then advised us on 8th May, 1986 that we have to correct the judgment on appeal if we have to retain the Egbelu land verged green in plan No. ASNL/lMI26/LD as communal land and later share it equitably.

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14. That it was only after we approached our present Counsel, that we realised that the reliefs we asked for in our suit No. HOW78/80 was not granted. That our former Counsel Acholonu Esq., did not inform us that the reliefs we asked for was not granted and so did not inform us of our right to enter an appeal within 3 months of the judgment. In fact we all went home in jubilation. That our then Solicitor E. Acholonu Esq. explained the judgment of the Court to us in same language as the Clerk of court explained to us in paragraphs 5, 6 and 7 of this affidavit.
15. That we are further informed by S.I. MBACHU ESQ., that we have reasonable grounds of appeal and this has been annexed hereto and marked Exh. D and titled “Proposed Notice and Grounds of Appeal”

he gave reasons why they had to delay for over a year before they briefed another counsel to file the application for extension of time to appeal. These explanations were further reinforced by the affidavit of Jariath Nwangwu, the Court Clerk, who interpreted the judgment of the trial court to the appellants when he deposed that:-

“4. That both Leonard Okere and Titus Nlem were correct in their affidavit where they said that I interpreted the judgment in Igbo Language to both parties immediately after the judgment.

5. That in interpreting the judgment, I informed both parties that the court held that both parties should go back and make use of the Egbelu land as they have been doing before. That plaintiffs’ claim was dismissed with no order as to costs. That it is the view of the court that this is not a case where a declaration ought to be made. That if any member of the family decided to effect partition of the Egbelu land, they could bring an action for partition in Court.
6. That it is not true that I never went beyond telling the parties in Igbo Language that the plaintiffs’ claim was dismissed. That I interpreted the judgment in Igbo Language as contained in paragraph 5 herein.”

I find that the affidavit sworn to by Mr. Okere, particularly paragraph 7, 8 and 9, which read –

“7. Then immediately thereafter the Clerk of Court explained to the parties in Igbo Language that the plaintiffs’ claim was dismissed and that the earlier order for costs of N100 awarded against the plaintiffs has been rescinded by the learned trial judge after hearing Counsel.

8. That when we left the court, the Defendants were jubilating while the plaintiffs/applicants walked away disgusted and with gloomy faces.
9. That the learned trial judge never spoke to the parties other than reading out his judgment in the open Court. Further that the Clerk of Court never went beyond telling the parties in Igbo Language that the plaintiffs’ claim was dismissed.”

go to confirm the averments in the affidavit of Mr. Nwangwu as regards the interpretation of the judgment Exhibit C. See RE ADEWUMI & ORS (1988) 3 NWLR, (Pt.83) 483 and KIYAWA v. MADAWAKI (1986) 2 NWLR (PT.20) 113. In both cases, the issue involved was reasons for delay in failing to appeal, within time. In RE ADEWUNMI, (supra) the Court of Appeal refused to extend time for the applicants to appeal. They appealed against the refusal order. In allowing the appeal the Supreme Court held at page 498 that

…….. There is nothing in those minutes to show that the family ever approved the filing of a counter-claim to enable the defendants apply for letters of administration, there is nothing in the minutes to show that the details of the High Court judgment were ever explained to the family.”

……………………….

“The main question which, however, arises is whether the appellants/Applicants knew from 1983 (when the High Court judgment was delivered or at least from December, 1985 (when the first family meeting is recorded to have taken place) that the defendants had been appointed administrators by the Court. That is, did they know of the counterclaim by the defendants

This inquiry in my view, is very relevant.”

In KIYAWA v. MADAWAKI (supra), the Court of Appeal in dealing with the issue for reasons for delay in filing the appeal, it opined that:-

“Also that the applicant had to engage the services of another solicitor in Kaduna as deposed to at paragraph 41. is sufficient and substantive reason for the further delay, although it was not pointedly spelt out as a reason fur the delay.”

See also UNIVERSITY OF LAGOS v. OLANIYAN (1985) 1 NWLR (Pt.1) 156 and IBODO “. ENAROFIA (1980) 5-7 SC.42. I therefore find that the appellants have sufficiently explained the reasons for delay in filing the Notice of Appeal.

On the second requirement of Order 3 Rules I and 2 of the Court of Appeal Rules 1981, looking painstakingly at the proposed grounds of appeal, I am satisfied that grounds 2 and 3 raise issues of law that call for the Court of Appeal’s pronouncement. Ground 2 challenges the application of law to the findings of fact by the trial court while ground 3 deals with the application and interpretation of Order XLII Rule 2, of the Imo State High Court Rules. This questions the correctness of the procedure as to who between the appellants and the respondents had the duty to begin i.e. to prove their case, having regard to the issues as settled by the learned trial judge.

The important and most controversial issue for determination by the Court of Appeal is whether the trial court is right in refusing the appellants’ prayer for a declaration of communal title to the whole Egbelu land after he had found that it is in fact a communal property of both the appellants and the respondents, particularly when the respondent had sworn in his counter-affidavit – paragraph 7 – that “even if paragraph 5 of the affidavit is true, then what it means is that we are back at the position we were before the litigation – which is that I alone am entitled to the customary rights of occupancy over the land in dispute and that I have the right to use the said land in any agricultural manner I desire”, But the Court of Appeal proceeded and decided the issue as if it had already granted the extension of time and was dealing with the substantive appeal. This is a serious misdirection on the part of the Court of Appeal.

This is what happened in the case of HOLMAN BROTHERS (NIG.) LTD . v. KIGO (NIG) LTD (1980) 8-11 43, where Udoma, JSC, said-

“That the Federal Court of Appeal was in fact dealing not with the application for leave, but with the appeal itself on its merit, the application for leave being treated as the appeal itself; which is a very clear and powerful indication that the appeal was arguable and that the application was not frivolous.”

The other issue deals with on whom the onus of proof is, having regard to the issues settled by the trial court. It is equally of no less importance, as once that onus in misplaced the effect of the whole trial will occasion miscarriage of justice.

For the reasons already stated. I find that the appeal has merit and it succeeds. It is accordingly allowed. The Ruling of the Court of Appeal dismissing the application including the order of costs made therein, is set aside.

The application of the appellants for extension of time to appeal to the Court of Appeal is granted as prayed on grounds 2 and 3 only, and time to file the Notice of Appeal is extended by 60 days from today. The appellants are entitled to the costs in this appeal which I assess at N1000.00 Costs in the Court below and the trial Court to await the outcome of the appeal.A. G. KARIBI-WHYTE, J.S.C: I have read the Judgment of my learned brother Wali J.S.C. I agree with him that this appeal succeeds.

The only issue before this court is whether the Court below was right in the exercise of its discretion by refusing appellants leave to appeal to that Court against the judgment of the Court of trial delivered on the 24th June, 1985.

The facts have been stated comprehensively in the judgment of my learned brother Wali J.S.C. Much of it are not in dispute. The aspect in dispute which is whether the judgment was on delivery explained to the parties, though relevant is not in my opinion crucial to the issue of the exercise of discretion to appeal.

Appellants applied to the Court below a year after the delivery of the judgment seeking enlargement of time within which to file notice and grounds of appeal to that Court. The application was supported by affidavit giving reasons why the application was not made within time.

The relevant paragraphs of Appellants’ affidavit suggest that they were initially of the impression that judgment was in their favour. They left the Court satisfied that they should continue to use the land in dispute as before. It was not until the 17th April, 1986, when the 1st Respondent brought an action in court claiming damages for trespass and injunction, and they had legal advice did it occur to them that they were not successful in the action they took out against the Respondents. This was the reason for the delay in appealing against the judgment of the trial Court.

The explanation of the Appellants was substantially supported by the affidavit of the clerk of Court who interpreted and explained the judgment to the parties when it was read out in Court. I think it is reasonable.

It is now well settled that an application for leave to appeal will be successful. where applicant can show (i) that the delay in bringing the application is neither wilful nor inordinate (ii) that there are good and substantial reasons for failure to appeal within the period statutorily prescribed (iii) that there are grounds which prima facie show good cause why the appeal should be heard. The affidavit of the Appellant is convincing that they had not delayed in bringing the application and that they sought leave to appeal immediately they were aware of the fact that they were unsuccessful in their action against the defendants. These are undoubtedly good and substantial reasons for the failure to appeal within the statutory period.

Grounds 2 and 3 of the grounds of appeal raise issues of law which show that the appeal ought to be heard.

In deciding the application before them, the Court below was not concerned and should not concern itself with the determination of the issues raised in the grounds of appeal. It is only concerned with the question whether the Appellants have shown good and substantial reasons for the delay in bringing the application, and secondly whether the grounds of appeal sought to be argued are frivolous.

The Court below has in the instant case failed to exercise its discretion correctly. The exercise of discretion to refuse the application for leave to appeal against the judgment of the trial Court is wrong and is hereby set aside.

For the above reasons, and the fuller reasons in the judgment of my learned brother Wali J.S.C, I also allow this appeal, and set aside the judgment of the Court below refusing the Appellants leave to appeal against the judgment of the High Court dated 24th June, 1985.

The application of the Appellants for leave to appeal to the Court of Appeal is granted as prayed on grounds 2 and 3 only. Appellants shall file the notice of appeal within 60 days from the date of judgment.

Appellants are entitled to N1.000 as the costs of this action in this Court. Costs in the Court below and trial Court should await the outcome of the appeal.

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SC.210/1989