CASE SUMMARY OF:
Ukariwo Obasi & Anor. v. Eke Onwuka & Ors. (1987) - SC
1. Ukariwo Obasi;
2. Oko Kalu (For Themselves and as Representing Members of Umuoriri Family of Agbo Ezi Ndioriri Family Compound Umueso Amaeke Abiriba)
1. Eke Onwuka;
2. Ago Ogwo;
3. Ogwo Onwuka;
4. Okenwa Ikwan;
5. Aro Mbonu;
6. Okoji Chukwu
(1987) NWLR (Pt. 61) 364;
(1987) 7 S.C (Pt 1) 233;
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- Mr. G. A. Graham-Douglas.
* FOR THE RESPONDENT
- Chief J.N. Obonna.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
FACT (as relating to the issues)
In Suit No. HU/49/74 the present Appellants as Plaintiffs sued the present Respondents as Defendants claiming:
1. Declaration of title to the lots, pieces or parcels of lands known as and called "Abamkpughuru", "Agboizu", "Edo", "Ogboakwu" and "Okaiafo" situate and being at Uzo Ndi Okoronta, Amaeke Ahiriba within the jurisdiction of this Court. Annual rental value being N10.00.
2. N800.00 being general damages for trespass to the said lands.
3. Injunction permanently restraining the defendants, their servants, agents and/or workmen from further entry upon or interference with the said lands.
From those pleadings it is apparent that the parties based their roots of title mainly on the traditional stories handed down by word of mouth from generation to generation by their ancestors and predecessors in title.
The trial court disbelieved the plaintiffs traditional history as not positive enough to show that title belongs to them, hence judgement was not given in the plaintiffs' favour.
They appealed to the Court of Appeal which dismissed their appeal.
The plaintiffs' have further appealed to this Supreme Court.
1. The learned Justices of the Court of Appeal erred in law after admitting the document headed "Peaceful Arbitration On Farm Dispute" as Exhibit FCA1 proceeded to consider and evaluate its contents thereof without sending the case back to the lower Court, an exercise that has occasioned a miscarriage of justice.
HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, WITH 300NAIRA COST]
1. GROUND 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In this case, now on appeal, Belgore, J.C.A. (as he then was) in his lead judgment described EX.FCA 1 as "a document tainted with criminality" and which "was subject of successful criminal prosecution of the authors and their accomplices" and ended by affirming that "certainly no Court will make use of illegality which the so-called arbitration is ... "Olatawura, J.C.A. in his concurring judgment held that the parties did not voluntarily submit the dispute in EX.FCA1 to arbitration with the result that "the result of such an arbitration cannot bind that party" who was forced into the arbitration. He relied on Onwusike v. Onwusike 6 E.N.L. R. 10. Now if the parties to EX. FCA 1 are not bound by what it (EX. FCA 1) decided then EX.FCA 1 will have no value either as evidence or as estoppel per rem judicatam. The Court of Appeal is not under any legal duty or obligation to consider a document (EX. FCA 1) which is at best "worthless" and at worst "tainted with criminality." If the Court of Appeal could not itself consider EX. FCA 1 for the reasons given, what will that Court hope to achieve by sending the "worthless" and "criminally tainted" EX.FCA 1 to the trial Court? The law like equity does not act in vain.
ii. The point is that even if EX. FCA 1 was not "tainted with criminality" and was not "worthless" it will still be for the Court that received the evidence to assess and evaluate the evidence it received. It is true that normally the appraisal, the assessment, the evaluation of evidence is within the exclusive preserve of the trial Court but that is so because it is the trial Court that receives and admits evidence in proceedings before it.
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The guiding principle here is that to avoid surprise to the opposite party the Plaintiff should plead all the facts and all the documents he intends to rely on, at the trial of the case. During that trial he should establish by evidence oral or documentary, those facts on which his case rests and depends. The trial Court usually comes to a decision on the totality of the evidence led on both sides. The purpose of an appeal is to find out whether on that evidence and the applicable law the trial Court came to right decision. - Oputa, JSC. ULARIWO v. ONWUKA (1987)
In civil cases the Court will permit fresh evidence in furtherance of justice under the following circumstances:
(i) Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.
(ii) Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case.
(iii) Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible. - Oputa, JSC. ULARIWO v. ONWUKA (1987)
The Court of Appeal is in as good a position to assess Exhibit FCA 1 admitted by it as the lower court, the High Court, if it had been admitted before the High Court. It is not the law that when a court of appeal admits or hears further evidence oral or documentary, it has to allow the appeal automatically and remit the case to the lower court for rehearing or re-assessment of the whole evidence. This needs no citation of judicial authority. - Obaseki, JSC. ULARIWO v. ONWUKA (1987)
As I have always observed, traditional evidence is nothing but hear-say evidence removed from the hear-say rule and elevated to the status of admissible evidence by the statutory provisions of Section 44 of the Evidence Law Cap.49 of the Laws of Eastern Nigeria applicable to this case ... That is why it is necessary to test each side's traditional history by reference to facts and acts done in recent years as established by the evidence led, in order to see which side ought to be preferred on the basis of probability. - Oputa, JSC. ULARIWO v. ONWUKA (1987)
The end of this brief.
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