EVANGELIST JACOB ONAKOVWE KPEKU & ORS. v. CHIEF DOUFA SIBEKENEKUMU & ORS

CORAM

PARTIES

1. EVANGELIST JACOB ONAKOVWE KPEKU

2. JACOB KORORO VUAGHOGHO

3. DANIEL GOMUGORO DUMUJE(for themselves and representing the People of OGBE SOBO ALADJA in UDU LOCAL GOVERNMENT AREA OF DELTA STATE)

APPELLANTS 

1. CHIEF DOUFA SIBEKENEKUMU

2. OFROKPAN ISEGBELE(for themselves and representing the People of ISABA COMMUNITY in WARRI SOUTH-WEST LOCAL GOVERNMENT AREA, DELTA STATE

3. ATUWATSE II, OLU OF WARRI

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondents instituted a suit in a representative capacity for themselves and representing the people of Isaba Community in Warri South-West Local Government Area of Delta State, wherein they sued the Appellants before the Delta State High Court for a declaration of title to land and an order of perpetual injunction against the Appellants. The Appellants also sued the Respondents as counter-claimants at the trial court in a representative capacity representing the people of Ogbe-Sobo (Aladja) in Udu Local Government Area of Delta State. This action was instituted by the Respondent at the lower court in 1970, while the Appellants filed a counter-claim against the Respondents in 2006, claiming same reliefs as the Respondents on the disputed land. At the end of the trial, the trial court granted the reliefs of the 1st and 2nd Respondents, dismissing the counter-claim of the Appellants. Dissatisfied with the judgment of the trial court, the Appellants have appealed to this court.

HELD

Appeal Dismissed

ISSUES

Was the learned trial judge right in not considering the full weight and effect of the previous judgments of 1934 and 1965 between the same parties over the same subject-matter to determine the merits of this case as against other issues relied on by the court; grounds 1, 2, 3, 4 and 5 of the grounds of appeal. Did the learned trial judge properly evaluate the evidence given by the parties on the imaginary scale of justice before declaring 1st and 2nd plaintiffs as owners of the disputed land which was based principally on alleged acts of possession by 1st and 2nd plaintiff as well as reliance on the gazette and map of delta state; grounds 6, 7, 8 and 10. Having regard to the way and manner the case was conducted with conflicting traditional root of title of the 1st and 2nd plaintiffs on one hand different from the case put forward on behalf of the 3rd plaintiff by the same counsel whether the case of plaintiffs as a whole ought not to have been dismissed in total for being inconsistent, contradictory and impossible to be granted by a court of law as constituted.

RATIONES DECIDENDI

IDENTITY OF LAND – INSTANCE WHEN A SURVEY OR LITIGATION PLAN IS NOT NECESSARY TO PROVE THE IDENTITY OF LAND IN DISPUTE

“The identity of the land in dispute will be an issue only where the Defendants make it so in the Statement of Defence. See Adenle v. Olude (2002) 9-10 SC 124. As the pleadings or evidence did not show any dispute regarding the identity of the whole land in dispute, the point being made by the Appellants’ counsel that there is no clear indication or demarcation of the land disputed in 1934 and 1965 which portions should have been super imposed on the survey plan is of no moment. This is because as stated earlier, the portion litigated upon in 1934 was clearly shown on the Respondents’ survey plan and pleaded in paragraph 21 of the 10th amended statement of claim. The issue of super imposing one plan on the other is neither here nor there given the fact that the Respondents claimed a much larger area than the area litigated upon in 1934. In any event, the law is that where both parties know the land in dispute, a survey or litigation plan is not necessary. See Sadiku Osho v. Michael Ape (1998) 6 SCNJ 139 at 142. I am of the view that the learned trial judge was right in attaching credibility to the survey plan as tendered by the Respondents. See Akpan v. Otong (1996) 12 SCNJ 213 at 216”. –

JUDGMENT – DEFINITION OF JUDGMENT

The 6th Edition of Black’s Law Dictionary defines a judgment as follows:
The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or Suit therein litigated and submitted to its determination. The final decision of the court resolving the dispute and determining the rights and obligations of the parties. The Law’s last word in a judicial controversy, it being the final determination by a court of the rights of the parties upon matters submitted to it in an action or proceedings.
I am of the humble view that the issue of estoppel cannot be raised in respect of the 1965 case against the respondents as Exhibit B did not show a resolution of the dispute between the parties. See Okukuji v. Akwido (2001) FWLR Pt.39 Pg.1487 at 1490; Amusan v. Obideyi (2005) 6 SCNJ 96 at 97; Ndili v. Akinsumade (2000) FWLR pt.5 pg.750”.

ADMISSIBLE FACT – WHETHER ADMISSIBLE FACT CAN BE RELIED UPON TO ARRIVE AT A DECISION

“It is trite that only facts are pleaded and not the evidence to prove the facts. See Nwadioro v. Shell (1990) 5 NWLR pt. 150 pg.332-4; Onamade v. ACB (1997) 1 NWLR Pt. 480 Pg.123. Exhibit L is the authentic map of Delta State published by the office of the Surveyor-General of the State which shows that the land in dispute is situated in Warri South West Local Government. Exhibit C is a written legal instrument – gazette of the then Bendel State Government which was still applicable in Delta State. During the trial both parties insisted that the two principal villages in dispute belong to them. In Exhibit “C”, all the villages, hamlets that make up Isaba clan were duly listed out, and Ayama and Pamie which are the land in dispute, are clearly listed as part of Isaba clan. I agree with learned Respondents’ counsel that boundaries are fixed either by statute or orders of authorities having jurisdiction and the best method of determining the Local Government Area to which the disputed land belongs is by reference to the instruments establishing the Local Government Area as such instruments would define extent of their areas of authority. See A.G., Cross-River v. A.G., Federation (2005) 6 SCNJ 152 at 157 – 158. The point being made here is that the facts contained in Exhibits C and L being pleaded is relevant and thus admissible. Being admissible, they can be relied upon to arrive at a decision by the learned trial judge –

ADMISSIBILITY OF EVIDENCE – STATUS OF DOCUMENTS MADE BY INTERESTED PARTIES DURING THE PENDENCY OF LITIGATION

“The main contention against both exhibits is that they were made during the pendency of the suit. By S.151 (1) of the Evidence Act 2011 Area Maps made by any authority shall be admissible as evidence in court without further proof. Also, the government of the defunct Bendel State and the office of the Surveyor-General of Delta State cannot by any stretch be considered “interested parties” to this dispute to make exhibits L and C inadmissible. It is only documents made by parties and/or interested parties during the pendency of litigation that are not admissible. see S.83(3) Evidence Act 2011; S.E.A.P.S. Ltd. v. Ogunnaike (2008) 14 NWLR Pt.1106 Pg.1 at Pg. 5; Susano Pharm., Co. Ltd. v. Sol Pham. Ltd. (2000) FWLR Pt. 10 Pg.1595 at Pg.1598”. –

CASES CITED

Not Available

STATUTES REFERRED TO

Court of Appeal Act

Evidence Act, 2011

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