Okonkwo Okonji (Alias Warder) & Ors. V. George Njokanma & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C

The plaintiffs/respondents filed suit No. A/10/73 at the High Court, Asaba in March 1973 and claimed against the defendants/appellants for declaration of title to land, damages for trespass and injunction. The defendants/appellants cross-claim, in similar terms, against the plaintiffs/respondents in suit No. A/16/73 in April 1973. The two actions were consolidated and accordingly tried together. Judgment was delivered in favour of the plaintiffs/respondents on 30/3/81. Dissatisfied with that judgment, the defendants/appellants appealed to the Court of Appeal, Benin City and lost. Still dissatisfied, they further appealed to the Supreme Court. The Supreme Court ordered a re-hearing of the appeal in the Court of Appeal. At the conclusion of the re-hearing, the Court of Appeal on 9/7/93 again, gave judgment in favour of plaintiffs/respondents. With leave of the Supreme Court the appellants appealed and argued on grounds of law, mixed law and facts.

Both parties filed and exchanged briefs of argument in accordance with the rules of this Court. Be it noted that the appellants also filed a reply brief in answer to respondents’ brief. Appellants’ learned counsel, Mr. H.A. Lardner S.A.N., in the appellants’ brief, identified six issues for determination in the appeal, namely,

“(1) Were the appellants not denied their right to fair hearing when the Court of Appeal raised suo motu and decided the issue of the admissibility of Exh. ‘B’ in the proceedings under the provisions of sections 111, 112, 129, and 130 of the Evidence Act, without affording the parties, particularly the appellants, an opportunity of being heard on the issue so raised

(2) In the above circumstance are the appellants not entitled ex debito justitiae to have the judgment set aside and a re-hearing ordered

(3) Are the appellants not entitled to judgment on the points which were canvassed in briefs of the parties on the admissibility of Exh. ‘B’ and ‘D’ under sections 20(3).(a) & (b), 34(1) and 199 of the Evidence Act, respectively as issues (b) and (d) in appellant’s brief at page 248, 252-259 of the Record and in respondents brief at pages 279, 283-285 of the Records

(4) Whether the trial court having found the traditional historical evidence inconclusive correctly applied the principle laid down in the case of Koja II v. Bonsie (1957) 1 NMLR 1223 at 1126 – 1227 when it decided the case on the credibility of witnesses and was the Court of Appeal right in approving the manner in which the principle was applied by the trial court

(5) Whether the learned trial Judge and the Lord Justices of the Court of Appeal have correctly and sufficiently scrutinized the evidence and examined the exhibits tendered before the court by both sides to the case before they came to concurrent judgments

(6) If exhibits ‘B’ and ‘D’ were expunged from the records, can it reasonably by (sic) held that the decision would have been the same”.

The respondent’s learned counsel, Chief Olisa Chukwura, SAN, adopted the appellants’ issues for determination as theirs.

It is worthy of note that both parties were ad idem, and rightly in my view, that “the main complaint in this appeal centres around the denial of fair hearing and the admission and use made of Exhs. ‘B’ and ‘D’ in the proceedings in the two lower courts amongst other grounds.”

At the oral hearing before us, each learned counsel adopted his brief of argument; appellants’ counsel additionally adopted his reply brief. Each counsel concisely but substantially reiterated his argument on the vexed question of admissibility of Exhs. ‘B’ and ‘D’ as contained in the briefs.

Issues 1 & 2

Appellants argued issues Nos. 1 and 2 together. Learned appellants’ counsel, Mr. B.A.M. Fashanu at the oral hearing, submitted that it was improper for the Court of Appeal to have raised the issues of fact, relating to