In The Supreme Court of Nigeria

On Friday, the 11th day of May 1990

SC 205/1986

Between

Okori Nwaezema          ......             Appellants

Ezuji Uwandimanyi

Albert Ogiri

Efungwu Ika

Ezeja Ika

Ezeja Ugwunwada

(for themselves and on behalf of the people of Anadim Ogo in Edem, Nsukka)

And

Obeta Nwaiyeke           .......            Respondents

Ayogu Eze

Samuel Ogbonna

(For themselves and on behalf of Okpuje Ani in Nsukka Division)

Judgment of the Court

Delivered by

Agbaje, J.S.C.

I allowed the appellants' appeal summarily on 19th February 1990 and remitted the case to the Anambra State High Court for a retrial. I indicated then that I would give reasons for my judgment today. I now proceed to do so.

This appeal is concerned with a consolidated action. The two suits consolidated were suits E/120/71 and E/55/72. The plaintiffs in suit F/120/71 were the defendants in suit E/55/72 whilst the defendants in suit F/120/71 were the plaintiffs in suit E/55/72. The order for consolidation was in the following terms:-

Suits E/120/71 and E/55/72 are hereby consolidated. The plaintiffs in E/120/71 will he plaintiffs in the consolidated suit and the defendants in E/120/71 will be the defendants in the consolidated suit.

The plaintiffs' claim as plaintiffs in suit E/120/71 at the High Court was as follows:-

1.      For a declaration of title or ownership to that piece or parcel of land known and called "Amagu tekulishi" situate at Okpuje and in Nsukka Province which is more clearly shown and delineated Pink in Plan No. MEC1262/71 filed in this suit.

2.    For a declaration that defendants under native law and custom forfeit their right of occupation of the said land.

3.    (N280) £I40 being arrears of rent in respect of the said land.

4.     A perpetual injunction restraining the defendants their agents and privies from ever entering into the said plaintiffs land or interfering in any way whatsoever with the plaintiffs' right and/or possession of the same.

The claims were predicated essentially on the following averments in the plaintiffs amended statement of claim:

4.    The said piece of land has been in the ownership and possession of the plaintiffs from time beyond human memory.

5.    As such owners in possession the plaintiffs farmed the land, enjoyed the economic crops thereon and let portions of same to farm tenants who paid tribute to the plaintiffs.

6.    The defendants who are immigrants were first permitted to enter the land in dispute less than 25 years ago. They settled in the area verged blue in the plan referred to above on the following conditions:

(a)    To pay the annual tribute.

(b)    Not to live outside the area verged blue without the permission of the plaintiffs.

(c)    Not to allow others except the people of Amadim Ogo Edem to farm on the land without the permission of the plaintiffs.

These averments were denied by the defendants in their amended statement of defence who besides these denials alleged therein as follows.

5.    The said land in dispute has been from time immemorial the property of the defendants, and so owned from their forefathers. to their fathers before them

6.    As the owners in possession, the defendants have been exercising maximum acts of ownership, such as:-

(a)    Having their permanent settlements buildings and homes in the land in dispute, from time beyond human memory.

(b    Farming in different places and portions in the land in dispute.

(c)   Collecting palm produce and harvesting other economic trees from the said land in dispute.

(d)    Planting and having economic trees such as: Iroko trees, cocoa plantations, oghono trees, rubber plantations, palm trees, ugha trees and orange trees.

(e)    The defendants have their "EHERE" shrine in the land in dispute. The "EHERE" shrine is regarded by the defendants and their fore-fathers before them as the god and protector of Amadim Ogo Amegu Edem people. The shrine priest is EZE NWASOCWA of the defendants' people.

(f)    The defendants have also "DUMOROGANYI" shrine in the land in dispute. The shrine priest is Ezeugwu Mkpozi, the eldest man in the defendants' place.

(g)    The defendants also have Assemblies of God Church on the land in dispute.

(h)    The defendants also have Amegu Market which takes place on everv EKE market days.

The case proceeded to trial before Chukwuani, J ., who after hearing the parties and their witnesses dismissed in his judgment dated 5th April. 1982, the plaintiffs' claim in its entirety. The learned trial Judge gave a judgment running into 15 pages. However thirteen of them were devoted to the recapitulation of the evidence of the witnesses before him and the addresses of counsel to him.

On the issues raised in the pleadings and the evidence in support all the learned trial Judge said was as follows:

Having carefully considered the evidence and the submission before the court I have then come to conclusion that it is not (sic) for the plaintiffs right to win on a land case on the strength of his own case alone. In the present case, the case for the defendants is much more stronger than the case for the plaintiffs.

The witnesses said that the land in dispute belonged to the plaintiffs in that they were never notified of this by the plaintiffs. The Nrobos were called as witnesses by the two parties. This is so if one considers the evidence of the 6th plaintiff witness and his cross examination.

The land in dispute was alleged to be owned by plaintiffs as from time immemorial but strange enough there was evidence of the P.W.2 that he was the only living witness. This is to my mind cannot be said to be from time immemorial. So far there is evidence that the transaction took place some time during the Nigerian Civil War and this shows that the evidence is at variance with the pleadings.

The mere fact that the plaintiff had said that the parcel of land is owned by them is not sure proof of such a statement. The witnesses for the plaintiff is taken either not speaking the truth or that (sic) did not now know what they are saying.

Furthermore, the P.W.2., is the only witness now alive and he too cannot claim that the time of the ownership is from time immemorial, at least, his age does not tell this.

The defendants are sure that they are the natives of Amadim Ogo Edem and since the civil war they have never moved from the village. This piece of evidence is never challenged. Then again the defendants have the chief priest and the present Chief mentioned the name of his successor. The plaintiff never did so to show that they' own the land from time immemorial.

The claim for the plaintiffs therefore fails on its entirety and therefore is hereby dismissed.

Against this judgment the plaintiffs appealed to the Court of Appeal, Enugu Division on the following grounds of appeal original and additional leaving out their particulars:-

1.    Grounds of Appeal

1.      Error-In-Law: The learned Trial Judge erred in law and misdirected himself in law in failing to make specific findings of fact and (sic) such vital issue as to whether the defendants/respondents are the Customary tenants of the plaintiffs/appellants

2.      Error-In-Law The learned Trial judge filled to make any specific finding of fact as to who has the title i.e. Customay right of Occupancy as between the plaintiffs/appellants and the defendants/respondents bearing (sic) the mind that such a declaration formed the first arm of the claim

3.    The judgment is not supported by the evidence.

4.     Misdirection. The Learned Trial Judge misdirected himself in law and on the evidence when he held is follows:-

The land in dispute was alleged to be owned by the plaintiffs from time immemorial but strange enough there was evidence of P.W.2 that he was the only living witness. This to my mind cannot be from time immemorial. Furthermore the P.W.2 is ,the only living witness now alive and he too cannot claim that the time of ownership ls froni time immemorial at least his age does not tell this.

5.    Misdirection: In holding as follows:

So far there is evidence that the transaction took place sometime during the Nigerian Civil War and this shows that the evidence is at variance with pleadings" the learned trial Judge misdirected himself in law and in fact and thereby came an (sic) erroneous conclusion.

6 .    Misdirection: In holding as follows: The defendants are sure that they are natives of Amadim Ogo Edem and since the Civil War they have never moved from the Village. This piece of evidence is never challenged", the Learned Trial Judge misdirected himself in law and in fact.

The appeal came on for hearing at the Court of Appeal. Enugu Division on 23rd September, 1985 Coram Phil-Obosie. Aikawa and Katsina-Alu, JJ.C.A. That court as per the lead judgment of Katsina-Alu, J.C.A.. given on 16 December. 1985 in which the other justices concurred allowed the plaintiffs appeal, resting his judgment only on the consideration of grounds 4. 5 & 6 of the plaintiffs grounds of appeal which alleged misdirection in law and in fact in one form or other on the part of the learned trial Judge. The complaints were all of them held to have been justifiably made.

Katsina-Alu. J.C.A.. then concluded his judgment thus:

As pointed out earlier, the evidence of D.W.1 Albert Ogiri (3rd defendant) was in variance with their pleadings and in sup port of the plaintiffs' claim. It is obvious to me that the learned trial Judge did not take the advantage of having seen and heard witness. He did not properly evaluate the evidence before him. He should have, in the words of Fatayi-Williams. J.S.C. (as he then was) the ease of Mogaji & Ors. v. Odofin & Ors. (1978) 4 S.C.91 adduced by both parties on that imaginary scale He will then see which is heavier not by the number of witnesses by called each party. but by the quality or the probative value of the testimony those witnesses In a case such as this, this court is in as good a position as the trial Court to decide the issue having regard to the evidence - See Fatoyinbo v. Williams 1 F.S.C. 87, [1950] SCNLR 274.

In view of the reasons I have given in grounds 4.5 and 6, the judgment of the trial court ought to beset aside. It is unnecessary to consider the remaining grounds of appeal. The plaintiffs claimed a declaration of title to the portion of land in dispute. But in view of the Land Use Act, 1978, the plaintiffs can only be granted a declaration that they are entitled to a customary right of occupancy to the piece or parcel of land edged Pink on Plan No. MFC/262/71 Exhibit 'A'. The plaintiffs also claimed N280.00 arrears of rent in respect of the said land. On the evidence before the trial Court. 1 think they are entitled to this claim. In view of the conduct of the defendants, plaintiffs are also entitled to be granted an injunction.

As I have said above. the plaintiffs appeal was allowed. The judgment of the learned trial Judge was then set aside and in its place judgment was entered in favour of the plaintiffs against the defendants in the terms of the plaintiffs claim in suit E/120/71. The defendants for their part have now appealed against that judgment with the leave of this court, to this court on the following grounds of appeal:-

3.    Grounds of Appeal:

(1)    The learned Justices of the Court of Appeal erred in law by allowing the Plaintiffs' appeal and granting them the reliefs claimed by them as Plaintiffs in the trial court while failing to address their minds to the peculiar and vital circumstances of the appeal before them.

(2)    The learned Justices of the Court of Appeal erred in law in relying on the principle enunciated in Mogaji & Others v. Odofin (1978) 4 S.C. 91 to justify the grant by them on appeal (in favour of the plaintiffs) of the reliefs sought by them in the trial Court.

(3)    The learned Justices of the Court of Appeal erred in law and on the facts in holding that "In a case such as this, this Court is in as good a position as the trial Court to decide the issue having regard to the evidence.

(4)    The learned Justices of the Court of Appeal erred in law and on the facts in holding as follows:-

As pointed out earlier, the evidence of D.W. 1. Albert Ogiri (3rd Defendant) was at variance with their Pleadings and in support of the Plaintiffs' claim.

(5)    The Judgment of the Court of Appeal is against the weight of evidence.

Briefs of arguments were filed on both sides. Issues arising for determination from the defendants grounds of appeal were set down in their brief of argument. Suffice it to say here that they were along the lines indicated in each of the grounds of appeal which I have copied above. The main submissions of counsel for the plaintiffs in the latter's brief of argument and in the open court are precise and unanswerable in my view into the bargain - they are as follows first:-

By allowing the plaintiffs' appeal, therefore, on a consideration of their Grounds 4-6 alone, counsel submitted the Court of Appeal was impliedly impugning the trial Judge's decision on the basis that it was predicated on "misdirection" as to the facts, and/or the law applicable thereto.

Counsel then submitted that such findings without anything more cannot justify a judgment in favour of the plaintiff on their claim. Second, that non-consideration of grounds 1-3 of the plaintiff's grounds of appeal in the Court of Appeal was fatal to its judgment in favour of the plaintiff. It was further submitted that the fate of the plaintiffs' claim was inexorably tied up with the resolution of the issues raised in these grounds of appeal. And then it was submitted that the trial court made no findings of fact in favour of the plaintiffs upon which judgment in their favour could be grounded on their claims. And it was further submitted that this was not a case where it could be said that the Court of Appeal was in as good a position as the trial court to make findings of fact on the evidence presented on both sides.

Chief Ofodile, S.A.N., made a spirited attempt both in the plaintiffs' brief of argument and in oral submissions in open court to support the judgment in favour of the plaintiffs. The most important point he made appears to me to be the following:

The first point to make on this ground is that where the judgment of a Court of first instance is not based on the demeanour of the witnesses but on evidence led at trial, if the trial Court fails to make the requisite findings, an Appellate Court in such a situation is in as good a position as the Lower Court to make the requisite findings.

Then he cited the following impressive list of authorities in support of this contention of his:

Chief Oyelakin Balogun & 2 Ors. v. Oladosu Akanji (1988)1 NWLR (Pt.70) 301 at 319 para. F & F.

Ogunsola Ajadi v. Aihaji Ladunni Okenihun (1985)1 NWLR (Pt.3) page 484 at 495.

Alhaji A.W. Akibu v. Joseph Opaleye & Anor. (1974) 11 S.C. page 189 at 202.

MillerBuckley (Nig.) Ltd. v. Mrs. Felicia Akura (1986)5NWLR (Pt.44) p.752 at 760.

Lawal Buraimoh Fatoyinbo v. Seliatu Abike Williams Alias Sani & Ors. (1956)1 F.S.C. 87 at 89; [1956] SCNLR 274.

Watt or Thomas v. Thomas (1947) A.C. 484 at 487-488.

Josiah Akinola & Anor. v. Fatoyinbo Oluwo & Ors. (1962)1 All NLR 224.

The following passage from the judgment of this Court in Akinola v. Oluwo at page 227 brings out the law on the point at issue, i.e. the point as to the situation where the court of appeal is in as good a position to evaluate the evidence as the trial court:

I am always reluctant to differ from a trial Judge on a finding of fact but a distinction must be drawn between findings of fact based on the credibility of witnesses and findings based on an evaluation of evidence which has been accepted. In the latter case a Court of Appeal is in as good a position to evaluate the evidence as the Court of trial, though it will, of course, give weight to the opinion of the trial Judge. (See Benmax v. Austin Motor Co. Ltd (1955)1 All E.R. 326.

The decision in Benmax v. Austin Motors Co. Ltd. (1955)1 All E.R. F 326 which was cited with approval in this case said on the same point as follows at page 328 as per Viscount Simonds:

In a case like that under appeal where, so far as I can see, there can be no dispute about any relevant specific fact. much less any dispute arising out of the credibility of witnesses, but the sole question is whether the proper inference from those facts is that the patent in suit disclosed an inventive step, I do not hesitate to say that an appellate court should form an independent opinion.

It appears therefore clear to me that an appellate court is in as a good position as the trial court to evaluate the evidence where there can be no dispute about any relevant specific fact e.g. where all relevant facts are admitted. In such a case the evaluation of the evidence is based not on credibility of witnesses but on the proper inference to be drawn from those facts. But this is not the case where the evaluation of the evidence has to be based on the credibility of witnesses.

There is in the case in hand conflicting evidence as regards the relevant facts upon which a decision in favour of the plaintiff or otherwise depends. In short the relevant evidence was neither one-way nor admitted. Resolution of the conflict in the evidence in this case rests on the credibility of the witnesses who testified for either side. I am therefore in no doubt that this is not a case where it can be properly said that the Court of Appeal was in a good position as the trial court to evaluate the evidence led in this case.

The implication of the verdict of the Court of Appeal which upheld the complaints of the plaintiffs in this appeal alleging misdirection in fact and in law on the part of the learned trial Judge in his judgment in the case, is that there had been a mistrial in the trial court. Unless it was possible for the Court of Appeal, properly directed as to the law and the facts to give the right decision in the case, otherwise the proper consequential order the Court of Appeal could have made in the circumstance was one ordering a retrial of the case before another Judge.

I have shown above that the Court of Appeal could not have by itself evaluated the evidence in this case. This is so because as I have said, the evaluation of the evidence depended on the credibility of witnesses. an undoubted province of the trial court.

One must remember that some of the complaints of the plaintiffs in their appeal in the Court of Appeal were that the trial court did not discharge its duty of resolving the vital issues upon which the correct decision one way or the other depends in this case. That such a duty is on the trial court is clear. See Dumuje v. Iduozo (1978) 2 S.C. 1. There is no doubt that some vital issues arising from the pleadings and evidence in support in this case were, as pointed out by the plaintiffs in their appeal in the Court of Appeal, as follows:-

(a)    whether or not the Defendants/Respondents were the customary tenants of the Plaintiffs/Appellants and therefore whether or not the Plaintiffs/ Appellants are entitled to forfeiture and arrears of rent claimed:

(b)    which of the contesting parties are the owners of the land in dispute in view of the claim for a declaration of customary right of occupancy claimed by the Plaintiffs/Appellants.

There is equally no doubt that the learned trial Judge in his judgment left these two vital issues unresolved. So, had the Court of Appeal bothered to consider the complaints of the plaintiffs before it in this regard it would certainly have upheld them.

Okuwobi v. Ishola (1973) 3 S.C. 43 is authority for the proposition that an appeal court should remit a case to the trial Court for a retrial of the latter made no specific findings of fact on important issues raised. I will add that this is imperative where as it is the case here the Court of Appeal is not in a position to make such findings of fact.

In sum, I am satisfied that the proper order the Court of Appeal should have made having allowed the plaintiffs appeal in that court for the reasons it gave was one ordering a retrial of the case.

It was for the above reasons that I allowed the defendants' appeal on July 19/2/90 and ordered a retrial of the case.

Judgment delivered by

Obaseki. J.S.C.

On the 19th day of February, 1990, after hearing counsel and reading the briefs of argument filed by the parties, I allowed the appeal and reserved my reasons for the judgment till today. I now proceed to give it.

Before now, I had the advantage of reading in draft, the reasons for judgment just delivered by my learned brother, Agbaje, J.S.C. I find that his opinions on all the issues raised in the appeal accord with mine and I hereby adopt them as mine.

Where a trial court fails to make crucial findings on issues raised on the pleadings and those findings depend on the credibility of witnesses, the proper order after allowing the appeal against the judgment of the trial court is to order a retrial.

Okuwobi v. Ishola (1973)3 S.C. 43.

It was for the above reasons and those reasons set out in the reasons for judgment by my learned brother, Aghaje. J.S.C.. that I allowed the appeal and remitted the matter to the High Court for trial de novo.

Judgment delivered by

Eso. J.S.C.

I have had the privilege of a preview of the reasons for judgment which have just been given by my learned brother. Agbaje. J.S.C. I am in full agreement with the reasons and would adopt the same for my action in allowing the defendant's appeal on 19th February, l990.

Judgment delivered by

Kawu. J.S.C.

I entirely agree with the reasons for judgment just delivered by my brother, Aghaje, J.S.C.. which I have been privileged to have read earlier in draft. I respectfully adopt them as mine.

It is clear from the record that the learned trial Judge failed to consider and make specific findings On some crucial issues which were properly raised before him, and in the circumstances the Court of Appeal should have ordered a retrial of the case: Okpiri & Ors v. Jonah & Ors. (1961) All N.L.R. l02; [1961] I SCNLR 174.

I abide by the consequential orders made in the lead reasons for judgment of my learned brother, Agbaje. J.S.C.

Judgment delivered by

Wali. J.S.C.

When this appeal came up for hearing on 19th February, 6 1990, after hearing arguments of learned counsel, I allowed the appeal and indicated that I would give my reasons for doing so today.

I have had the privilege in advance of reading the reasons for Judgment of my learned brother, Agbaje, J.S.C. I entirely agree with his reasons which I respectfully adopt as mine. It was for these same reasons that I allowed the appeal on 19th February, 1990.

I abide by the orders made in the lead reasons for Judgment, that of costs inclusive.

Counsel