Polycarp Ojogbue & Anor Vs Ajie Nnubia & Ors (1972)
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COKER, JSC.
The plaintiffs have appealed to this court against the judgment of Betuel, J., (High Court, Onitsha) whereby he had dismissed with costs an action instituted by them against the respondents as defendants and in which their writ was endorsed as follows:- “The plaintiffs claim from the defendants as follows:-
1. A declaration of title to ownership of the following parcels of land namely, Abato, Oseakwa, Agudibe, Owelle one, Eneawo, Okpai and Utu Eke all situate at Ossomari in Onitsha Division.
2. £500 damages for trespass upon the said parcels of land.
3. An injunction to restrain the defendants their servants or agents from entering and or remaining in or in anyway interfering with the plaintiffs’ ownership and possession of the said land.”
Pursuant to the Order of Court in that connection, the parties filed and delivered their respective pleadings; indeed both parties in the course of the trial amended these pleadings. By their Amended Statement of Claim, the plaintiffs stated that they are people of Umuoga Family of Ossomari Town in Onitsha Division and that the defendants are people of Umunankwo Town in Onitsha Division; that some seven pieces of land, namely Abato, Oseakwa, Agudibe, Owelle One, Eneawo, Okpai and Utu-Eke, are involved in the case and that the pieces of land together form part of the Ossomari Forest Reserve. The Statement of Claim also averred that the plaintiffs had always owned and possessed those lands; that they had instituted and won court actions in respect of these lands and that they would rely upon those judgments in defence of their title.
The statement of claim also averred that the ancestors of the defendant were only given a portion of the plaintiffs’ land to the west of the land in dispute to live and farm subject to the usual customary conditions; that after the departure of the plaintiffs’ people to their original homesteads the defendants were left on their lands, that is plaintiffs’ lands, as caretakers; that the defendants performed the duties of caretakers for many years but later have refused to account to the plaintiffs and that the present action is a consequence of that refusal. The defendants, as stated before, also filed an amended statement of defence in which they denied the representative authority of the plaintiffs. The Statement of Defence also claimed that the 7 pieces of land in dispute “represent Umunankwo’s land within the said reserve”; that the lands had always belonged to the defendants who were putting tribute-paying tenants thereon and put in issue the plaintiffs’ claim to have granted portions of the lands to the ancestors of the defendants as well as the agency by which the plaintiffs said the defendants were left on the land. At the trial, both sides gave evidence and called witnesses. Both sides also called surveyors who produced plans made by the parties for the purpose of this case, the plaintiffs’ plan being admitted in evidence as Exhibit 1 and the defendants’ plan as Exhibit 16. The plaintiffs’ surveyor, Pius Ndenu, also produced the plan used by the plaintiffs in a previous action (the judgment of which was put in evidence as Exhibit 4) – and this was admitted as Exhibit 2 – and a composite plan based on Exhibits 1 and 2 – this was admitted in evidence as Exhibit 3. In the course of their evidence at the trial the plaintiffs gave the names of the defendants’ ancestors who were expressly authorised by them to act as their agents on the lands when the plaintiffs’ people were leaving the lands in dispute for “land granted to them by Umuonigwu – Ogwashi of Ossomari where they still live now.”
Those named were their own son-in-law Ononuju and later, after his death, Igwe Isagba. The plaintiffs also called a number of witnesses who testified both as to the migration to and settlement on the lands in dispute by the plaintiffs’ people and the appointment of the defendants’ people as the plaintiffs’ rent or tribute -collecting agents. The defendants also gave evidence at the trial. The 1st defendant was “the Okpala of Umunyogu and the eldest man there.” He claimed the lands in dispute as belonging to the defendants and stated that his people had a common boundary with the plaintiffs’ people on the River Niger, i.e., the western borders of the land in dispute. The defendants also produced copies of judgments in respect of cases fought and won by them over lands claimed by them to be portions of the lands in dispute (i.e. Exhibits 7, 8 and 14) and called some of their tenants to give evidence of their possession. The defendants’ surveyor, Samuel Anthony Emodi who produced Exhibit 16 as the plan of the lands in dispute testified that he had made the same on the instructions of the defendants and that it was “based on P.F.D. map 4F/10, the Forestry plan” which was produced in evidence as Exhibit 17. The admission of the plan in evidence was opposed by learned counsel for the plaintiffs who contended that it was not counter-signed by the Survey Department.
The Judge’s note on this point road as follows:-
“Egonu: Object to plan being tendered not counter-signed by Director of Survey. Court : Plan made by government department on Government authority (S. 118 (1) Evidence Ordinance). Witness: Received it from Forestry Office, Onitsha. Court: Document to be marked Exhibit 17, objected to by plaintiffs, objection overruled by court.”
The defendants also called as a witness a Chief Ranger in the Forestry Department who produced the copy of a Government Gazette showing the names of the owners of the lands in the Ossomari Forestry Reserve. The Notice was admitted in evidence as Exhibit 18. They also called another Chief Ranger, Theophilus Eyeku who testified that he was on subpoena to produce “plan P.F.D. 4F/10 of the 21st April, 1952, made by S.E. Aniagocha then Forestry Assistant now Provincial Forestry Officer” and approved by the Chief Conservator of Forests. Obviously, the witness was producing the present plan in order to substitute it for the plan Exhibit 17 which had already been put in evidence by the defence surveyor. Learned counsel for the plaintiffs again objected to the admissibility of the plan relying on Section 118 (1) of the Evidence Act and Section 23 (1) subsection (b) of the Survey Act. In a reserved ruling the learned trial Judge overruled the objection of the plaintiffs observing, inter alia as follows:-
“Although, I feel some doubts in the matter, and ex majore cautela, I would prefer to see such plans complying with the provisions of Section 23, I am not prepared to hold that the plan is inadmissible in evidence for non-compliance with this Section. In addition, I think that good cause has been shown to the court why it should be admitted in evidence; it is made by (apparently) competent persons, under the aegis of the Forestry Department, it was not made for the purposes of these proceedings and shows the extent and areas within the Reserve, it is used by the Department as official and authentic, it is probably, even admissible, when standing on its own feet. I would allow it to be adduced in evidence.”
We observe that at a later stage of the proceedings the witness Theophilus Eyeku was recalled by the plaintiffs and at their instance produced a plan, i.e. Exhibit 25 which like the original and indeed the substituted Exhibit 17 was not counter-signed by the Director of Surveys. At the end of the hearing and after the addresses of counsel on both sides, the learned trial Judge in a reserved judgment extensively considered and dealt with the evidence in the case and in the course of the judgment he dismissed the plaintiffs’ case with costs. On the issue of the migration of the plaintiffs’ people to the lands in dispute and their settlement thereon, the learned trial Judge in his judgment observed as follows:-
“There is some thing, it seems to me, to be said for both versions that the Umunankwo People were original inhabitants or settlers of a later vintage then the Umuoga or Ossomari People, and, because of this, I am unable to regard either version as ousting the other, but even were one version to succeed, and the other fail, it could still be modified or overshadowed by the pressure of subsequent events.”
The learned trial Judge then reviewed the evidence concerning the agency of the defendants and their liability as such to account to the plaintiffs and described it as appearing to him “to be a somewhat curious story of a peculiar relationship subsisting between the parties.” Later on in the judgment he commented on this aspect of the case as follows:- “Having regard to the vast extent of land involved in this suit, and the evidence that has been adduced before me, and the amount of credibility to be ascribed to it, it is only with the utmost difficulty that I could arrive at a conclusion that such a caretakership was established.” But, earlier on in the course of the same judgment, the learned trial Judge had observed thus:- “The plaintiffs’ case is not without evidence to support it, but there is no lack of even documentary evidence which does not support and even tends to contradict their claim, thus, in the Forestry Plan, the ownership of the whole of the land in dispute, is ascribed to Umunankwo, not as caretakers but as showing the interests of owners of land within the Reserve, as opposed to the extent of the Reserve such a plan may not be highly relevant.”
As stated before, the learned trial Judge dismissed the plaintiffs’ case and this appeal is from that judgment. Several grounds of appeal were filed and argued alleging errors in law – by wrongfully admitting in evidence the several plans produced as, e.g., Exhibit 17; and by wrongfully interpreting the judgments Exhibit 4 – and errors and mis-directions of fact in the learned Judge’s ascription of probative value to certain pieces of evidence and the inferences drawn by the learned trial Judge from the facts proved or accepted by him. We do not find it necessary to deal with the arguments on these grounds of appeal in view of the conclusion at which we have arrived, regarding this appeal. It was argued by learned counsel for the plaintiffs that the judgment was against the weight of evidence; that there were findings by the learned trial Judge in favour of the plaintiffs indicating that the plaintiffs’ case should not have been dismissed but at the worst should have been non-suited.
On the other hand, learned counsel for the defendants whilst conceding that there were obvious and clear findings by the learned trial Judge in favour of the plaintiffs’ claims, as well contended that the learned trial Judge was right in dismissing the case of the plaintiffs since his findings on the major issues were against the plaintiffs. We do not consider that the submission on behalf of the defendants are justified. It is true that at the end of the day the learned trial Judge gave judgment in favour of the defendants but it is equally true that throughout the judgment he had made no clear findings in which he had unequivocally upheld, as against the claims of the plaintiffs, the contentions of the defendants on any of the major issues. The learned trial Judge never expressly or impliedly disbelieved the plaintiffs and/or their witnesses and although he had expressed some qualms on the probative values of some pieces of oral evidence it is easy to see that some of his views on the lack of documentary evidence to support the issues they purported to prove (or disprove) are quite open to justifiable attack. The result is that we cannot see the basis on which the plaintiffs’ case was dismissed nor, what is worse, the grounds on which the learned trial Judge had proceeded to “enter judgment for the defendants.”
A judgment of the court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such an exercise. We are unable to say that the judgment in this case as it stands did this and we cannot allow it to stand. We have given some rather anxious consideration to the type of order to make in the circumstances of this case and eventually have decided that the best course is to send back the case for re-hearing, de novo, in the High Court, Onitsha.
The appeal succeeds and it is allowed. The judgment of the High Court, Onitsha, in Suit No. 0/34/58, including the order for costs, is set aside. It is ordered that the case be heard de novo in the High Court, Onitsha with the parties being at liberty, if they are so advised, to amend their claims and/or their pleadings. We also order that the appellants be paid the costs of this appeal which we fix at 137 guineas. We also direct that the costs in the court below should abide the event.
Other Citation: (1972) LCN/1407(SC)
