Mogo Chinwendu V. Nwanegbo Mbamali & Anor (1980)

LawGlobal-Hub Lead Judgment Report

N. ANIAGOLU, J.S.C.

This appeal has come before this court for hearing following an application for leave to appeal granted by the Federal Court of Appeal on 2nd May 1978 upon a Motion ex parte filed by the defendant/appellants and made ex parte by reason of the combined effect of Section 117(3)(a) of the Constitution of the Federation No. 20 of 1963 as amended by the Constitution (Amendment) (No. 2) Decree, 1976; Section 8(3) of the Federal Court of Appeal Decree No. 43 of 1976 which applied the 1961 Supreme Court Rules to the Federal Court of Appeal; and Order VII Rule 3(1) of the said 1961 Supreme Court Rules which states that:

“Where an appeal lies only by leave of court or of the court below any application to the court for such leave shall be made ex parte by notice on motion.”

Had the motion not been made ex parte and had the respondents been given the opportunity to contest the application, it is doubtful whether, on the facts of the case as found by the trial High Court and confirmed by the Federal Court of Appeal, leave to appeal to the Supreme Court would have been granted by the Federal Court of Appeal – the said facts being so hopelessly against the appellants that the surprise was that they should have chosen to appeal at all against the judgments, the appeal being only one of facts even though ingeniously couched, in the grounds of appeal, as if they had any legal contents. At the end of appellants’ counsel’s argument we did not call upon respondents’ counsel for a reply. This is a clear case in which the Federal Court of Appeal ought to have refused leave to appeal or at best ordered notice of the motion to be served on the respondents, as that court had undoubted power to do, and thereafter hear both sides before granting or refusing the application.

Litigation affecting not only the land in dispute but also other lands in the neigbourhood, dates back to 1921 when the contest was between the people of Igbariam and the people of Achalla as a whole. In that year Chief Iwegbuna of Achalla, who said he was representing Udezu and Amadim villages of Achalla, sued Chief Umeadi of Igbariam claiming, in the District court Awka, to recover a piece of land known as Egede. Chief Umeadi contended that the people of Igbariam had common boundary with only the Umezede village of Achalla. The District Officer, one Mr. Lawton, held in his judgment that the Ngene Ogba stream was part of the “unquestioned” boundary between the Igbariams and the Achallas, and that this boundary continued on “a straight line from the last pillar on the Obiobi to the Ikweogu and from there a straight line to the Ngene Ogba where it runs under the road.” The proceedings in that case (Suit No. 2/21 between Iwegbuna of Achalla and Umeadi of Igbariam) were tendered and received in evidence by Kaine, J., as Exhibit B in the later suit before him No. 0/111/58, Oruno Osiaka and Anor. v. Nwanegbo Mbamali and Ors. The said Suit No. 0/111/58 was in turn tendered before Oputa, J., (as he then was), in the present proceedings (Suit 0/93/71) as Exhibit 2.

If any plans were used by Mr. Lawton in determining the 1921 District Court case, they did not appear to have been tendered in evidence either before Kaine, J., in Suit 0/111/58 or before Oputa, J., in the present proceedings. Although Kaine, J., recorded one Emmanuel Onuora (P.W. 2 in that case) as having put in evidence a certified true copy “of the proceedings in Suit No. 2/21″ there was no indication that any plan or plans formed part of those proceedings.

Be that as it may, the parties made and produced their plans in the present proceedings before Oputa, J. Plans No. SE10/58 dated 21st July, 1958, tendered as Exhibit 4 and No. SE/EC53/71 dated 27th July, 1971, which was said to be a certified true copy of an original plan No. SE10/15/17/59, tendered as Exhibit 1, both made by a Licensed Surveyor, one S.A.O. Emodi, for the plaintiffs (the people of Amadim), were both produced by the plaintiffs, while Plan No. GA309A/60 made by another  Licensed Surveyor, one George Arinze Obianwu, for the defendants (the  people of Umuezede) was produced by the said defendants. On the said plan of the defendants Mr. Obianwu endorsed the following:

CERTIFIED TRUE COPY OF ORIGINAL PLAN MADE BY ME ON 7.11.60 AND 5.8.59.”

This endorsement triggered off a line of cross-examination of the Surveyor which revealed some contradictory evidence. He said in evidence he made his survey for the defendants in 1959 and that he had never heard of Egede Land. He, however, admitted he gave evidence in 1958 (indeed, he was recorded by Kaine, J., as having given evidence as the first witness for the then plaintiffs and having tendered the plan as Exhibit  A) and that one party to the dispute called the land Egede Land and the other Okokwe Land. Then he told Oputa, J.,

“I now admit that I have heard the name Egede Land.”

He further admitted that the plan, Exhibit 6, (the plan for the Umuezede people) was made for the 1958 case and that the defendants came only two weeks previous and asked him to come to court and testify for them. Even though he made the plan in 1959 he endorsed the date “7.11.60” as if on that date he prepared an original plan dated “7.11.60”, an averment which turned out to be false. In four places on Exhibit 6 are written the word “OKOKWE” in new blue ink. Witness denied he wrote those words even though they were contained on a plan which he allegedly made on “7.11.60 and 5.8.59”. The natural inference was that either he wrote those words since he produced the plan or his clients wrote them, in either case of which, as found by the learned trial Judge, the result would not be favourable to the defendants for whom he testified.

In the two plans Exhibits 1 and 6 the two parties have shown the western boundary of the land in dispute as separating the land of the Achallas from the land of the Igbariams, whether the land of the Achallas is called Egede as stated by the Amadim – plaintiffs, or Okokwe as stated by the Umuezede – defendants. In both plans the said western boundary is demarcated by concrete boundary pillars PBF61 to PBF67 and the land lying west of the said boundary line is described by both parties in the said plans as Igbariam land. The certainty of the said western boundary is entirely beyond question, the argument of Mr. Egonu for the defendant to the contrary notwithstanding. We told Mr. Egonu so.

Kaine, J. in his judgment delivered on 27th January 1964 found for the present defendants of Umuezede. On appeal to the Supreme Court by the present plaintiffs (the Amadim people) the Supreme Court reversed the judgment of Kaine, J., held on 28th January, 1966.

“………. that the Umuezede family are not the exclusive owners of the land”