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Chikere v. Okegbe

NNADI CHIKERE

NWOSHIGWELAM OKOROEMUME

CHRISTIAN OKEWUIHE

( for themselves and on behalf of the other members of Olori kindred of Umueze village, Nkume)

V

GEORGE OKEGBE

MMEZIE OKWARA

OKEHIE MADUEKWE

(For themselves and on behalf of other members   of Umuokpo village, Nkume)

AND

NWOCHIGWALAM OKOROEMUME

NNADI CHIKERE

CHRISTIAN OKEWUIHE

( for the themselves and as representing the other members of Okwu kindred of Umuokpo village, Nkume)

V

ACHIKAMUONYE IKE

NWACHUKWUAGUM MMAOKWU

BASIL AGBALIWE

GEORGE OKEHIE

MMEZIE OKWARA

OKEHIE MADUEKWE

( For themselves and as representing the other members of Okwu kindred of Umuokpo village, Nkume)

SUPREME COURT OF NIGERIA

ABUBAKAR BASIR WALI, JSC  (Presided)

OKAY ACHIKE, JSC

UMARU ATU KALGO, JSC

AKINTOLA OLUFEMI EJIWUNMI, JSC

EMMANUEL OLAYINKA AYOOLA, JSC ( Read the Lead Judgment )

SC. 26/1995

FRIDAY, 14TH JULY, 2000

ACTION - Consolidated suits - Appeal therefrom stated to be against the whole decision  - Whether decisions in all the consolidated suits thereby affected

ACTION - Land Law - Customary tenancy - Action by customary tenant against overlord for title to land - Action dismissed  - Whether dismissal thereof means forfeiture of customary tenancy

APPEAL  - Judgment and Orders - Supreme Court  - Decision of a  lower court thereto - Error therein - Error not appealed against - Power of Supreme Court to amend or correct notwithstanding  - Order 8 rules (2)  and (5) of the Supreme Court Rules and section 22 of the Supreme Court Act considered

APPEAL - Briefs of Argument - Issues for determination  - Argument thereon Need to distinctly identify specific issues covered thereby

APPEAL - Brief of Argument - Need to be clear, concise and intelligible

APPEAL - Notice of Appeal - Counsel submitting on issue not covered by Notice of Appeal - Court of Appeal considering and deciding thereon -  Propriety of  - Order 3, rule 23(1) and (2) of the Court of Appeal Rules considered

APPEAL - Notice of Appeal - Consolidated suits - Appeal stated to be against the whole decision - Whether decisions in all the consolidated suits thereby affected by the appeal

APPEAL - Notice of Appeal - Notice stated that appeal is against part of the decision  - Submission of counsel on decision not appealed against Whether allowed - Need to seek leave to raise and argue

COURT  - Court of Appeal - Notice of Appeal - Counsel submitting on issue not covered by Notice of Appeal - Court of Appeal considering and deciding thereon - Propriety of - Order 3, Rule 23(1) and (2) of the Court of Appeal Rules considered

COURT  - Supreme Court  - Decision of a lower court thereto - Error therein -  Error not appealed against  - Power  of Supreme Court to correct or amend notwithstanding  - Order 8 rules (2) and (5) of the Supreme Court Rules and Section 22 of the Supreme Court Act considered

COURT - Judgment and Orders - Court making an order inconsistent with findings - Whether proper

COURT - Supreme Court - Concurrent findings of lower courts - Whether Supreme Court will interfere

COURT - Trial Court - Judgment and Order - Order of non-suit - When to make - Whether proper order to make when plaintiff lacks locus standi to sue

EVIDENCE - Admission  - Admission by counsel on behalf of client Bindingness on client

EVIDENCE - Findings of fact - Concurrent findings of trial court and Court of Appeal - Whether Supreme Court will interfere

EVIDENCE - Land law - Finding of fact that occupier in possession of land by virtue of grant as customary tenant - Lack of title to land necessarily implied thereby

EVIDENCE - Land Law -Rule in case of Kojo II vs. Bonsie - How to successfully challenge the same - Inference drawn therefrom inviolable where no evidence or effective evidence in rebuttal thereof

JUDGMENT AND ORDERS - Supreme Court - Decision of a lower court thereto - Error therein - Error not appealed against   - Power of Supreme Court to amend or correct notwithstanding  - Order 8 rules (2)  and (5) of the Supreme Court Rules and Section 22 of the Supreme Court Act considered

JUDGMENT AND ORDERS - Decision of court  - Error therein  - Power of court to amend (The Slip Principle) - Whether applies to error of counsel

JUDGMENT AND ORDERS - Decision of court - Decision inconsistent with findings of court  - Whether proper

JUDGMENT AND ORDERS - Judgment  - Order of Non-suit  - When made -  Propriety of when plaintiff lacks locus standi to sue

JUDGMENT AND ORDERS - Land Law - Customary tenancy - Judgment dismissing action by customary tenant against overlord for title to land - Whether order of dismissal means order for forfeiture of customary tenancy

JUDGMENT AND ORDERS - The Slip Rule Principle - Essence of

JUDICIAL PRECEDENT - Case of Kojo II vs. Bonsie (1957) 1 WLR 1223 -  Principle decided therein

LAND LAW - Customary tenancy - Right to possession of land as incident of customary tenancy - Circumstances under which right may be forfeited

LAND LAW - Evidence - Finding of fact that occupier of land acquired possessory title by virtue of grant as customary tenant - Lack of title in occupier thereby implied

LAND LAW - Case of Case of Kojo II vs. Bonsie (1957) 1 WLR 1222 -  Principle of law decided therein

LAND LAW - Kojo II vs. Bonsie - Principle of law decided therein - How to successfully challenge the same - Inference drawn therefrom inviolable where no evidence or effective evidence in rebuttal thereof

LEGAL PRACTITIONER - Counsel admitting established facts on behalf of client - Whether proper and commendable

LEGAL PRACTITIONER - Error in submission to court - Counsel urging court to amend error under “The Slip Rule” Principle - Whether error can be so amended

LEGAL PRACTITIONER - Evidence - Admission of counsel - Whether binding on client

PRACTICE  AND PROCEDURE - Evidence  - Admission  - Admission by counsel  - Whether binding on client

PRACTICE AND PROCEDURE  - Appeal - Notice of Appeal - Notice stated that appeal is against part of the decision - Counsel making submission on area not covered by grounds of appeal - Whether allowed - Need to seek leave to raise and argue

PRACTICE AND PROCEDURE - Notice of Appeal - Consolidated suits Appeal stated to be against the whole decision  - Whether decisions in all the consolidated suits thereby affected

PRACTICE AND PROCEDURE - Appeal - Brief of Argument - Issues for determination - Argument thereon - Need to distinctly identify issues covered thereby

PRACTICE AND PROCEDURE - Appeal - Court of Appeal - Notice of

Appeal - Counsel raising and arguing issue not covered by Notice of Appeal - Court of Appeal considering and deciding thereon -  Propriety of - Order 3 rule 23(1) and (2) of the Court of Appeal Rules considered

PRACTICE AND PROCEDURE - Decision of court - Error therein  - Power of court to amend (The Slip Rule Principle) - Whether applies to error of counsel

PRACTICE AND PROCEDURE - Evidence - Findings of fact - Concurrent findings of trial court and Court of Appeal - Whether Supreme Court will interfere

PRACTICE AND PROCEDURE - Judgment and Orders - Order of Non-suit -  When made - Propriety of when plaintiff lacks locus standi to sue

PRACTICE AND PROCEDURE - Judgment and Orders - Decision of court -  Inconsistent with findings of court - Propriety of

PRACTICE AND PROCEDURE  - Decision of a lower court  - Error therein -  Error not appealed against - Power of Supreme Court to correct or amend nothwithstanding  - Order 8 rules (2) and (5) of the Supreme Court Act considered

PRACTICE AND PROCEDURE - Land Law - Customary tenancy -

Customary tenant suing for title to land against overlord - Suit dismissed - Whether dismissal of such suit tantamounts to order for forfeiture of customary tenancy

PRACTICE AND PROCEDURE - Slip Rule Principle - Essence of

Issues:

  1. Whether an order of non-suit is the proper order to make where a court holds that the plaintiff lacks the locus standi to institute an action
  2. Whether the trial court and the Court of Appeal (in confirming the judgment of the trial court) were right in their inference drawn from the established facts that the appellants were mere grantees of the land, subject matter of the suit, by reason of customary tenancy granted to them by the Respondents’ ancestors.

Facts:

This case relates to two suits filed in the Orlu Judicial Division of the High Court of Imo State and consolidated for trial before Ononoju, J. The first - Suit No. HOR/24/76 was filed by one George Okegbe and others, suing as representatives of the Okwu kindred of Umuokpo village, against Nnadi Chikaire and others, sued as representatives of the Umuodudu village. Both villages are in Nkume in Nkwere Division. The second - Suit No. HOR/48/82, was by one Nwashigwolem Okoroemume and others, suing as representatives of Umuodudu family in “Oriri Umueze Nkume”, against one Achiamuonye Ike and others, as representatives of “the people of Umuokpo Okwu”. The Okwu kindred, plaintiffs in Suit No. HOR/24/76, became the plaintiffs in the consolidated suits while the “Umuodudu Kindred”, who were the plaintiffs in the second suit, became the defendants in those suits.

The Plaintiffs’ claim was for a declaration that they were entitled to the customary right of occupancy in respect of a piece of land “known as and called UHU OKWARA OHONAOBI”, situate at Umuokpo village Nkume, damages for trespass, possession and injunction. By their cross-action, the defendants sought a similar declaration in respect of the same land, which they described as “UHU UMUODUDU, situate at Umuodudu in Nkume”, damages for trespass and injunction.

The plaintiffs’ case, in a nutshell, was that the land in dispute was a portion of a larger area of land called ‘Uhu Okwara Obonaobi’, which is owned by the plaintiffs by successive descent from their ancestor, one Okwu, from whom it had descended successively to the members of their kindred. They claimed that members of their family lived and farmed on the land, and have been harvesting all the economic trees thereon from time immemorial. The story was told that the defendants were from a place called ‘Olori Umueze Nkume’ and that the defendants’ kindred were called Olori Umueze. Evidence was given that the defendants had no land within or around the land in dispute. It was alleged that the defendants’ ancestors approached plaintiffs’ ancestors individually when having run away from their village upon the murder of a person in Umuduru in Umueze, they returned to find that their land at Olori Umueze had been confiscated by the family of the man killed by the defendants’ ancestors. It was the plaintiffs’ case that portions of the land in dispute were granted on individual basis to the ancestors of the defendants by ancestors of the plaintiffs, also on individual basis. Each of the ancestors of the defendants brought palmwine and kolanuts when shown where to live within the land. It was the condition of the grant that each grantee should work for the grantor every ‘Orie market day’, and present a cock to his grantor whenever the grantee was shown where to farm and that each grantee must be of good conduct. Notwithstanding the grants, the grantors continued to harvest all the economic trees on the land where defendants live. This dispute arose because the 2nd defendant chased away one Baby Nmezie and someone who had come to harvest palm fruits for her on the land, and proceeded to cut down palm trees and other economic trees on the land.

For their part, the defendants claimed that they and the plaintiffs had a common ancestor, one Nkume, and claimed title to the land through one Eze, whom they described as one of the four sons of Nkume. They confirmed the story that someone was murdered in Umuodudu, but only to the extent that some members of their kindred committed the murder and had to run away to a place called Atta. They claimed that several members of their kindred did not run away and that those who did were given back their land upon their return.

The record of the High Court and the judgment of the trial judge showed that after evidence had been taken in the matter and on the day fixed for judgment, the court, the parties and their counsel went to the land in dispute to see its northern boundary. The purpose of the visit as recorded in the judge’s notes, was for the 1st plaintiff to show the area of land shown to the defendants to live and the area of land trespassed upon by the defendants.

After hearing the parties, the trial court on 27th April, 1990, dismissed the cross-action and non-suited the plaintiffs. The plaintiffs did not appeal against the decision whereby they were non-suited. However, the defendants appealed to the Court of Appeal who, on 2nd June, 1994, dismissed their appeal. Dissatisfied with the decision of the Court of Appeal, the defendants further appealed to the Supreme Court. The Defendants are, therefore, the appellants in this appeal while the plaintiffs are the Respondents.