BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Orianwo v. Okene
  • 114
  • 2002-08-05
  • ₦ 200
  • Buy Now

Orianwo v. Okene

NNANTA ORIANWO

RICHARD WOSU

FRANKLIN AMADI

THOMAS ACHO

BONIFACE ELEWA

( For themselves and on behalf ofRumuorianwo Wogozo Family)

V

L. O. OKENE

HARRISON OKENE

MAXWELL OKENE

( For themselves and as representing theOkene Amadi Family)

V

HARRISON OKENE

MMANUEL OKENE

( On behalf of themselves and other members of Okene Family)

V

FYNEFACE LAWA

CYPRIAN LAWA

JAMES ACHOR

SUPREME COURT OF NIGERIA

IDRIS LEGBO KUTIGI, JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE, JSC ( Read the Lead Judgment )

SYLVESTER UMARU ONU, JSC

UMARU ATU KALGO, JSC

EMMANUEL OLAYINKA AYOOLA, JSC

SC.116/1998

7 TH JUNE,  2002

ACTION - Cross-action - Nature of - Whether plaintiff therein can succeed on the weakness of the defence in respect of the cross-action

ACTION - Cross-action - When may succeed where main action fails

EVIDENCE - Evidence for defendant - Where supports plaintiff’s case Whether plaintiff can take advantage of

INJUNCTION - Injunction - Injunction granted in respect of land in dispute -  Effect of on the building thereon - Quid quid plantatur solo, solo, cedit

LAND LAW - Injunction - Injunction granted in respect of land in dispute -

Effect of on the building thereon - Quid quid plantatur solo, solo, cedit

PRACTICE AND PROCEDURE - Cross-action - Nature of - Whether plaintiff therein can succeed on the weakness of the defence in respect of

PRACTICE AND PROCEDURE - Cross-action - When may succeed where main action fails

PRACTICE AND PROCEDURE - Evidence for defendant - Where supports plaintiff’s case - Whether plaintiff can take advantage of

Issues:

1.            Whether the learned Justices of the Court of Appeal were right in allowing the appeal on the ground that the trial court had failed to make a finding of fact on the issue of the status of Amadi and Okene, when a finding of fact on that issue was actually made by the trial court.

2.            Whether the failure by the learned Justices of the Court of Appeal to consider the vital issue of ‘on whom the land in dispute vested on the death of Wokerebe’ had not occasioned a great miscarriage of justice.

3.            Assuming that the issue as to the status of Amadi and Okene was not resolved by the trial court, were the learned Justices of the Court of Appeal right in entering judgment for the defendants/respondents, having not by themselves resolved the issue in favour of the defendants/respondents?

4.            Were the learned Justices of the Court of Appeal right in entering judgment for the defendants/respondents on the

[2002]  F.W.L.R.                                          Orianwo  vs.  Okene                                                     429

ground of the non-pleading by the plaintiffs/appellants of the Ikwerre Native law and custom of burial rites of deceased persons when what were the said burial rites had never been an issue in the case?

5.            Were the learned Justices of the Court of Appeal right in not considering the plaintiffs/appellants’ cross-appeal and in making an order striking out the cross-appeal?

6.            Were the learned Justices of the Court of Appeal right to have awarded damages to the defendants/respondents in trespass and in making an order of injunction against the plaintiffs/ appellants?”

Facts:

The plaintiffs commenced this suit at the High Court of Rivers State Port Harcourt for a declaration to right of occupancy, damages and perpetual injunction against the defendants. After the exchange of pleadings, the defendants subsequently commenced another suit in respect of the same subject-matter and parties claiming damages and perpetual injunction against the defendants.

The two suits were consolidated. While plaintiffs in the first suit remained plaintiffs in the consolidated suit, plaintiffs in the second suit became the defendants in the consolidated suit.

At trial, both parties traced their origin to a common ancestor called Wokerebe and agreed that the land in dispute was part of the estate of their common ancestor. Parties equally agreed that their ancestor had nine children and only 4 of the children were able to perform the burial rites of their ancestor thereby entitled to inherit his estate. While the plaintiffs’ ancestor Wogozo was amongst the four that inherited the estate, the defendants’ ancestor was amongst the five younger one who could not perform the burial rites because they were minor then, and thereby were unable to inherit their father.

At the conclusion of trial, the trial court chose the version of the plaintiffs’ traditional evidence as against the defendants, he therefore entered judgment in favour of the plaintiff and dismissed the claim of the defendants.

Dissatisfied, the defendants appealed to the Court of Appeal. The plaintiffs too appealed in respect of the trial court’s addendum to the judgment thus:

“I make no particular order in respect of Charles Okene’s house which was completed during the pendency of this case because the plaintiffs did not ask for a particular relief.”

The Court of Appeal allowed the defendants’ appeal, set aside the judgment of the trial court and entered judgment for the defendants. As for the plaintiffs the Court of Appeal dismissed their claim and the cross-appeal.

The plaintiffs as appellants have further appealed to the Supreme Court.