ARUDIOGBU & ORS v. OKAFOR-OGBAJI (2021)

ARUDIOGBU & ORS v. OKAFOR-OGBAJI

(2021)LCN/15152(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Friday, March 05, 2021

CA/OW/194/2017

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ANAZOBA ARUDIOGBU (Substituted For The Deceased BRENDAN ARUDIOGBU By Order Of Court Made On 27/3/2019) 2. CLEMENT ARUDIOGBU OBEREUKO 3. AMBROSE OGBONNAYA APPELANT(S)

And

NATHANIEL OKAFOR-OGBAJI RESPONDENT(S)

RATIO

CONDITION TO BE MET TO RAISE AN ISSUE THAT WAS NOT RAISED AND PRONOUNCED UPON BEFORE THE LOWER COURT

…it is settled law that an issue that was not raised and pronounced upon before the lower Court cannot be raised in the appellate Court without the leave of that Court. See Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 311 Para C per Nweze JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

WHETHER THE HEAD OF THE FAMILY MUST JOIN OTHER MEMBERS OF THE FAMILY BEFORE HE CAN INSTITUTE ACTIONS FOR AND ON BEHALF OF THE FAMILY PROPERTY

The head of the family, I hold, is conferred with power to institute actions for and on behalf of the family. See Akapo v. Hakeem-Habeeb (1992) 6 NWLR Part 247 Page 266 at 293 Para A per Karibi-Whyte JSC. A fortiori, he can also defend suits on behalf of the family. Therefore, any failure of the Respondents to join other members of the family is not fatal to the action, I hold. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

MEANING OF AN OMNIBUS APPEAL

When an Appellant complains that a judgment is against the weight of evidence, what it means is that when the evidence adduced by him is balanced against that adduced by the Respondent, the Judgment given in favour of the Respondent is against the weight which should have been given to the totality of the evidence before the Court. See Gambo Musa & Anor V. Mallam John (2019) LPELR-48632(CA) per Mshellia JCA; Alphonsus Oriebosi V. Andy Sam Investment Company Limited (2014) LPELR-23607(CA) per Aboki JCA (as he then was). PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

POSITION OF THE LAW ON THE DUTY OF THE TRIAL COURT REGARDING EVALUATION OF EVIDENCE

The duty of the trial Judge, with regard to the evaluation of evidence, was succinctly put by the Supreme Court, per Adekeye JSC, in the case of Momoh v. Umoru (2011) 15 NWLR Part 1270 Page 217 at 274-275 Para G-B, as follows: “A trial Judge has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or misapplied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. His duty is to each a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law.” See also Ogundalu v. Macjob (2015) 8 NWLR Part 1460 Page 96 at 116-117 Para F-A per Rhodes-Vivour JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

WHEN IS A JUDGEMENT SAID TO BE PERVERSE

A judgment which ignores facts or evidence before it is said to be perverse. See Abegunde v. Ondo State House of Assembly (2015) 8 NWLR Part 1461 Page 314 at 343-344 Para H-D, 346 G-H per M.D. Muhammad JSC; Mamonu v Dikat (2019) 7 NWLR Part 1672 Page 495 at 526-527 per Peter-Odili JSC. PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State, Orlu Judicial Division, holden at Nkwerre (hereafter referred to as the lower Court), delivered on the 31st day of January, 2017 by Hon. Justice S.I. Okpara in favour of the Respondent.

The Respondent, who was the Plaintiff at the lower Court, by an Amended Statement of Claim dated 10/10/2014 (Page 176-177 of Record) sought the following reliefs against the Appellants, as Defendants, the 1st Defendant being Brendan Arudiogbu (the deceased 1st Appellant), to wit:
“(a) A declaration that the Claimant is entitled to the grant of Customary Right of Occupancy to the piece or parcel of land situate at Ndiakunwanta-Uno, Arondizuogu in Ideato North Local Government Area within the jurisdiction and more particularly shown on the Survey Plan to be filed in Court.
(b) N3,000,000.00 (Three Million Naira) being general damages for Defendants’ provocative acts of trespass and maliciously and wantonly destroying claimant’s cassava, cocoyam, plantains, banana, native pear, avocado pear and other

economic crops.
(c) An order of the Court directing the Defendants to dig out and carrying away the coffin which they buried in the land.
(d) Perpetual injunction restraining the Defendants, their servants, agents or privies from going into the land and from committing any act or other acts inconsistent with the rights and interests of the Claimant.”

The claim by the Respondent in his Statement of Claim is that he purchased the possessory rights and interests of the land in dispute from one Charles Emegbo (Emeghebo) by an unregistered Deed of Assignment dated 7/4/2003. Giving the history of the land, the Respondent averred that his vendor (Charles Emegbo) acquired title to the land in dispute by virtue of a Certificate of Purchase of the land consequent upon the sale of the land in execution of the judgment in Appeal No. HOR/1A/84. He accused the Appellants of trespass on the land by harvesting fruits and crops, destroying farm crops and burying a coffin on the land.

The Appellants, in their Amended Statement of Defence, at Page 185 of the Record, averred that the land in dispute was their customary inheritance. The coffin referred

to was that of a member of their family who was buried on the land following a well attended funeral ceremony. They alleged that the Magistrate Court in Suit No. MID/8/79 had adjudged the land in dispute in their favour, against which judgment there was no appeal to their knowledge. They denied that there was in existence any title in the Respondent. They also denied knowledge of the purported sale of the land to the Respondent, alleging there to be fraud and collusion. They set up a Counter Claim seeking to set aside the alleged judgment against them of the High Court, Orlu in Appeal No, HOR/1A/84. They also sought to set aside the Writ of Attachment and Sale of the property in dispute, consequent upon that judgment. They Counter Claimed for declaration of customary ownership over the land.

At the trial, the Respondent was the sole witness in proof of his claim, while the Appellants called three witnesses. Following the conclusion of hearing and the filing of written addresses, the lower Court granted the claims of the Respondent.

Dissatisfied, the Appellants appealed to this Court by Notice of Appeal filed on 10/4/17, subsequently amended.

The extant Notice of Appeal is Amended Notice of Appeal filed on 22/10/2019 but deemed properly filed on 18/11/2020. In the course of the appeal, the 1st Appellant, Brendan Arudiogbu, died and was substituted by Anazoba Arudiogbu by order of Court on 27/3/2019.

In prosecution of the appeal, the Appellants filed an Appellants’ Brief of Arguments on 22/10/2019 and deemed properly filed on 18/11/20, settled by their Counsel, A.O. Nwankwo Esq., in which two issues were distilled for determination, as follows:
(a) Whether Suit No HOR/5/2012 – Nathaniel Okafor Ogbaji Vs. Brendan Arudiogbu and others was competent and whether the Honourable Justice S.I. Okpara had jurisdiction to hear and determine the suit as he did.
(b) Whether from the pleadings of the parties before the Honourable trial Court, it was clearly shown that the land, the subject-matter of the Suit before the trial Court was a family land, all of who ought to be made parties to the suit or sued in a Representative capacity.

The Respondent’s Counsel, Boniface N. Enibeke Esq., in the Respondent’s Brief of Arguments filed on 7/1/21 similarly distilled two issues for

the Court’s determination to wit:
(a) “Whether Suit No. HOR/5/2012 Nathaniel Okafor -Ogbaji Vs. Anazoba Arudiogbu, substituted Brendan Arudiogu (deceased) and two others was competent and whether the trial judge had jurisdiction to hear and determine the suit.
(b) Whether the Respondent in his claim confined to the limits of the land described in the Certificate of Purchase of Land, Exhibit D, which the Court issued to Mazi Charles Emegbo (Emegbebo) of which there was no protest or appeal (sic).

I shall adopt the issues formulated by the Appellants but shall add a third issue arising from the 4th Ground of Appeal, to wit:
Whether or not the judgment is against the weight of the evidence?

The 1st issue for determination
Whether Suit No HOR/5/2012 – Nathaniel Okafor Ogbaji Vs. Brendan Arudiogbu and Ors was competent and whether the Honourable Justice S.I. Okpara had jurisdiction to hear and determine the suit as he did.

Appellants’ Submissions
Arguing this issue, learned Counsel submitted that the Writ of Summons was not signed by Counsel nor Respondent, in breach of

Order 4 Rule 2 (1) of the Imo State High Court (Civil Procedure) Rules, 2008, thus rendering it a nullity, citing the cases of Kente Vs. Ishaku (2017) 15 NWLR Part 1587 Page 94 and Madukolu Vs Nkemdilim (1962) 2 SCNLR page 341.

Respondent’s Submissions
The Respondent’s Counsel insisted that the suit is competent, having been commenced in accordance with the provisions of the Rules. The preamble of the Rules provides that the forms in the Appendix to the schedule shall be used where applicable and that the forms were in compliance with Order 3 Rule 3 of the Rules and Order 4 Rule 2(1). It is the function of the Registrar, he said, to sign the Writ. In any event, Order 5 Rule 1(1) of the Rules allows the failure of the form of a process to be treated as an irregularity but before any step is taken and within a reasonable time, which were all lacking in this case. He cited in support the case of Hussaini Isa Zakari v Salisu Dan Azumi Muhammed (2017) 70 NSQR Part 2 Page 833.

Resolution
The Writ of Summons is contained at Pages 1-3 of the Record. The contents of the Writ are as follow:
“This writ it to be served within three calendar months from the

date thereof, or if renewed, within three calendar months from the date of the last renewal, including the day of such, date and not afterwards.
The Defendant may enter appearance personally or by Legal Practitioner either by handing in the appropriate forms, duly completed at the Registry of the High Court of the Judicial Division in which the action is brought or by sending them to the Registry by registered post.

INDORSEMENTS TO BE MADE ON THE WRIT BEFORE ISSUE THEREOF
The Claimant’s claim is for:
“1. A declaration that the Claimant is entitled to the grant of Customary Right of Occupancy to the piece or parcel of land situate at Ndiakunwanta-Uno, Arondizuogu, in Ideato North Local Government Area within the Jurisdiction and more particularly shown on the Survey Plan to be filed in Court.
2. N3,000.000.00 (three million naira) being general damages for defendants’ provocative acts of trespass and maliciously and want only destroying Claimant’s cassava, cocoyam, plantains, banana, native pear, avocado pear and other economic crops.
3. An Order of the Court directing the Defendants to dig out and carry

away the coffin which they buried in the land.
4. Perpetual injunction restraining the defendants, their servants, agents or privies from going into the land and from committing any acts or other acts inconsistent with the rights and interests of the Claimant.”
This writ was issued by Boniface N. Enebeke Esq., of Ofuenyi Chambers whose address for service is No. 15 Asa Road, Aba, agent for the Claimant of Ndiakeme-Uno Arondisuogu in Ideato North Local Government Area, Imo State, Legal Practitioner for the said Claimant who resides at Ndiakeme-Uno Arondisugu.
This Writ was served by me at …..on the Defendant (here insert mode of service) on the …day of …
Indorsed the …day of …
……
(Signed)
……
Address”

Order 3 Rule 3 of the Imo State High Court (Civil Procedure) Rules 2008 provides as follows:
“Except in the cases in which any different forms are provided in these Rules, the writ of summons shall be in Form 1 with such modifications or variations

as circumstances may require.”
Order 4 Rule 1 provides:
“Every originating process shall contain the claim, the relief or remedy sought and the full names and address of the claimant.”
In Form 1 of the said Rules, the format provided is as follows:
General Form of Writ of Summons (0,3. r.3)
20 ….
(Here put the letter and number (see note (a) following this form). In the High Court of Imo State.
In the ….. Judicial Division
Between:
A:B ……. Claimant
And
C.D ….. Defendant
To C.D. of …. In the …. of …..
You are hereby commanded that within Forty-Two days after the service of this writ on you, inclusive of the day of such service you do cause an appearance to be

entered for you in an action at the suit of A.B. and take notice that in default of your so doing the claimant may proceed therein, and judgment may be given in your absence.
DATED this … day of …… 20 ……
….
Registrar
Memorandum to be subscribed on the writ.
N.B:-
This writ is to be served within three calendar months from the date thereof, or, if renewed within three calendar months from the date of the last renewal, including the day of such date and not afterwards.
…
The defendant may enter appearance personally or by Legal Practitioner either by handing in the appropriate forms, duly completed, at the Registry of the High Court of the Judicial Division in which the action is brought or by sending them to the Registry by registered post. Indorsements to be made on the writ before issue thereof.
The claimant’s claim is for, etc ….
This writ was issued for G.H. of….. whose address for service is

… agent for……of Legal Practitioner for the said claimant who resides at …. (mention the city, town or district and also the name of the street and number of the house of the claimant’s residence, if any).
Indorsement to be made on copy of writ forthwith after service.
This writ was served by me at …. on the defendant (here insert mode of service) on the day of ….. 20 …..
Indorsed the …….. day of …… 20 ……
……
(Signed)
…
(Address).”
I have set out in extenso the forms above in order to show that from the format of the form provided for the Writ of Summons, there is no requirement for the signature of the Counsel, as it is clearly a document from the Registry and by the Registry.
The Writ of Summons in this case is in compliance with the requirement of the Rules, I hold, with no

requirement for the signature of Counsel or litigant.

The Statement of Claim, which by Order 15 Rule 2 (3) of the Rules is required to be signed by the legal practitioner or the party, is shown on Page 5 of the Record, as having been duly signed by Counsel above his name. The suit before the lower Court, I accordingly hold, was competent. The lower Court thus had jurisdiction to entertain and determine the suit. I resolve the 1st issue for determination against the Appellants.

The 2nd issue for determination is:
“Whether from the pleadings of the parties before the trial Court, it was clearly shown that the land, the subject-matter of the Suit before the trial Court was a family land, all of who ought to have been made parties to the suit or sued in a Representative capacity.”

Appellants’ Submissions
The Appellant’s Counsel, defining who a necessary party to proceedings is, and the consequence of not joining a necessary party, submitted that the subject matter of the suit, as seen in the judgment, is family land and is the family land of the 1st Appellant’s family to which Brendan Arodiogbu (now

deceased) was just a family Head. Very many other members of the family were not sued along with the Appellants nor were all the principal members joined in the suit at the trial. He complained that the suit at the trial Court in which the Appellants were not sued in a Representative capacity excluded a majority of the family members of the 1st and 2nd Appellants who had interest in the subject matter of the suit and are now bound and affected by the judgment and order of the Court. The suit at the lower Court was thus not initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Respondent’s Submission
Learned Counsel to the Respondent submitted that the Appellants misconceived and misunderstood the nature of the case, as the action is predicated on the Court ordered sale of land by public auction in execution of the judgment in Appeal No. HOR/1A/84. The five principles of proving title to land thus do not apply. There was no protest by them after the Court sale of the land to Charles Emegbo (Emeghebo). The Appellants were thus statute barred after the Court sale of the land to him by

virtue of Sections 46 and 47 of the Sheriffs and Civil Process Law of Eastern Nigeria applicable in Imo State. The trial Judge confined himself to the Appeal judgment. As was clear from the judgment, the Respondent confined himself to the area of land described in the certificate of purchase. It is not the business of the Court to spend precious judicial time resolving matters not in dispute. There was no reason, he said, to join members of the late Christopher Okwuaogu Arudiogbu family. Grounds A-C of the Amended Notice of Appeal, he submitted, are unrelated to the judgment or decision of the trial or the lower Court.

Resolution
This issue does not require much deliberation. This is because it is settled law that an issue that was not raised and pronounced upon before the lower Court cannot be raised in the appellate Court without the leave of that Court. See Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC; Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 311 Para C per Nweze JSC. This issue not having been raised before the lower Court can thus not be entertained by this Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Furthermore, Brendan Arodiogbu was the 1st Respondent, before his substitution on his decease by the instant 1st Respondent. As is clear from the contention of their Counsel, he was the family head and the other Respondents are members of the same family. The head of the family, I hold, is conferred with power to institute actions for and on behalf of the family. See Akapo v. Hakeem-Habeeb (1992) 6 NWLR Part 247 Page 266 at 293 Para A per Karibi-Whyte JSC. A fortiori, he can also defend suits on behalf of the family. Therefore, any failure of the Respondents to join other members of the family is not fatal to the action, I hold. Had the Appellants wished their joinder, they were perfectly at liberty to have requested for the same, which they did not do. It is thus too late to complain. I again resolve the 2nd issue for determination against the Appellants.

The 3rd issue for determination, culled from the 4th Ground of Appeal, is the following:
Whether or not the judgment is against the weight of the evidence?

The 4th ground of appeal of the Appellant is as follows:
“The judgment of the trial Court is against the weight of evidence.

The judgment of the trial Court cannot be supported by the weight of the evidence adduced by the Respondent which the trial Judge wrongly accepted.

The Appellants, as Defendants before the lower Court, had formulated in their Final Written Address at Page 256 of the Record, the following issues for the Court’s determination:
1. Whether an Appellate Court could after setting turn round to Execute such judgment against a losing Respondent by ordering for the sale of the land as to recover a cost awarded against the said losing Respondent?
2. Given the seeming fraudulent practice in the purported

execution of the judgment of the Appellate Court, will the title of Mazi Charles Emegbo to the land in dispute be sustainable in law as to confer right of sale on him and right of purchase on the claimant who was one of the Appellants at the Appellate Court?
3. Can the claimant be allowed to benefit from his involvement in a fraudulent transaction and abuse of judicial process by getting declaration of title to the land in dispute as the claims?
4. Has title been validly transferred to the claimant via the unregistered deed of assignment as to make the claimant to be entitled to the grant of customary right of occupancy under the relevant law.”

The issues, however formulated by the lower Court, at page 296 of the Record are the following:
“1. Whether the land that was the subject matter of Suit No. HOR/1A/84 (decided in favour of the claimant herein) is the same land in dispute in this case, or put differently, is the land in dispute in HOR/1A/84, the same land that was said to have been sold by public auction by the Court in execution of the judgment in HOR/1A/84.
2. Whether the certified true copy of the judgment in

HOR/1A/84 tendered in this suit as Exhibit ‘B’, certified true copy of order of sale of immovable property of Respondent Brendan Arudiogbu dated 7th April, 1986 in Suit No. HOR/1A/84 and tendered in this suit as Exhibit ‘C’ and the certified true copy of the certificate or purchase of land dated 8th October, 1986 in Suit No. HOR/1A/84 and tendered in this suit as Exhibit ‘D’ are genuine and valid.
3. Is the claimant entitled to his claims in this suit.”

At the conclusion of trial, the lower Court made the following orders:
“Finally, I grant the claimant’s reliefs in this suit as follows:
“a. The claimant is entitled to the grant of Customary Right of Occupancy to the piece or parcel of Land situate at Ndiakunwanta-Ulo Arondizuogu in Ideato North Local Government Area within the jurisdiction and more particularly verged red on the claimant’s Dispute survey plan No. ZCA/1MDO3/2012 admitted in this suit as Exhibit ‘A’ on the basis that the claimant has sufficiently proved that he has a good root of title having bought same from Charles Emeghebo and was issued a receipt

of purchase or evidence of transaction (Exhibit ‘E’) and coupled with the fact that the claimant tool over possession of the said land and has remained in possession till date.
b. An order of mandatory injunction on the defendants to dig out and carry away the coffin which they buried in the land in dispute in this case as per paragraph 12 of the amended statement of claim which was admitted in paragraph 11 of the amended statement of defence.
c. The defendants shall pay the claimant the sum if N100,000 (One Hundred Thousand Naira Only) being damages for trespass on the land in dispute in this case
e. Perpetual injunction restraining the defendants by themselves, their servants, agent or privies from further trespass into the land in dispute. I award cost of N20,000 in favour of the claimant against the defendants.”

I note that in arriving at its decision leading to the grant of these orders, the lower Court confined itself to the question whether the land in dispute in the appeal before it and that in Suit No HOR/1A/84 were the same.

It held, at Page 298 of the Record, that:
“It is noteworthy to state

that the correct position of the law is that it is the Claimant that states the particular area of land in dispute in a case as in this case where the Defendants do not have a Counter Claim or a cross action.”
Further down in its judgment, it again held:
“I have stated earlier in this judgment, the Defendants have neither Counter Claim nor a cross action in this suit and so cannot add to the area of land shown by the Claimant as being in dispute.”

With regard to the fate of the Appellants’ Counter Claim, the lower Court, observed:
“…following the application of the learned Counsel for the Claimant, this Court coram T.E. Chukwuemeka Chikeka J., struck out the entire Counter Claim of the Defendants on 23/9/2015.”

Conceding that the Counter Claim had been struck out, even though I find no record of this, the Appellants, in their Amended Statement of Defence, at Page 185 of the Record had set out “Particulars of Fraud, Misrepresentation and Deceit” with respect to the sale of the land, which sale, they claimed, was not to their knowledge. Indeed, in the Counter Claim which was said to

have been struck out, they had sought an extension of time for leave to set aside the judgment in Appeal No, HOR/1A/84 and the “purported” sale of the land in dispute. They also sought for a declaration that they are the ones entitled to the Customary Right of Occupancy over the land in dispute.

Thus, while the lower Court was right in not considering the Counter Claim of the Appellants, against which decision there has in any event been no appeal, there was no consideration, I note, of the allegations of fraud, misrepresentation and deceit alleged by the Appellants.

It is important at this stage to give the history of the dispute between the parties, which I observe has spanned a number of years and been adjudicated upon in a number of Courts. It is not merely, as the suit in the lower Court suggests, a sale of auctioned land in satisfaction of a judgment debt but appears to be an attempt to obtain land that had been in dispute between the parties.

From the processes tendered before the lower Court, the 1st Appellant, Brendan Arudiogbu had instituted an action in the Chief Magistrate Court, Urualla, Ideato, Imo State in Suit No.

MID/8/79, claiming against the Respondent and other members of his family, for a declaration that he is entitled to the Customary Right of Occupancy over land situate at Ndiakunwata Uno Arondizuogu in Ideato LGA, for damages for trespass and an order of interlocutory injunction. The land was stated to be known and called Ugwu Nkenu. The Particulars of Claim in the said suit was that the Plaintiff therein and his ancestors were the owners in possession under the custom of the Arodizuogu custom and had always farmed on the land. They accused the 1st Defendant therein, Godwin Okafor and the Respondent herein and other members of Ogbuji of Akaeme Arondizuogwu of suing the Plaintiff and one other in 1967 for trespass in Suit No. HOR/138/67 but which suit was later abandoned by them. The Plaintiff therein (Brendan Arudiogbu) continued in occupation without disturbance until October 1979 when the Defendants therein cut down the Plaintiff’s trees and destroyed their crops. The matter was reported to the Police, who advised civil action hence the suit. Evidence was given by both sides in the suit.

The Respondent herein, and Godwin Okafor were among those

who gave evidence for the defence in that case, the defence claiming ownership of some of the portions of the plans tendered by the Plaintiff, referred to by them as “Okpuno Okafor Ogbaji”, which land they alleged was not part of the land of the Plaintiff.

In his judgment delivered on 2/3/83 in that case, the Magistrate, D.M. Ogwo, held that the alleged land referred to by the defence as “Okpuno Okafor Ogbaji” never existed and that the land claimed by the Defendants therein is the land of Ugwu Nkenu claimed by the Plaintiff. He thereupon entered judgment in favour of the Plaintiff (erstwhile 1st Appellant herein) against the Respondent and his family, granting the declaration of title sought, damages against the Defendants for trespass and a perpetual injunction.

On appeal by the Defendants therein, viz the family of the Respondent in this case, to the High Court, Orlu, before Hon, Justice Ogu Ugoagwu in Appeal No. HOR/1A/84, the judgment of the Chief Magistrate Court was set aside with costs awarded against the Plaintiff of N700, and an order made that the costs to them by the Court below in the sum of N1,450.00 be

refunded, which that Court calculated to be N2,150.00.

What transpired curiously thereafter, from Page 16 of the Records, is that an order was made on 7/4/1986 by the said Judge Ogu Ugoagwu J., for the sale of the immovable property of the Plaintiff therein, who, as aforesaid, is the 1st Appellant, of the land in dispute described as being situate at “Ndiakunwata Uno Arondizuogu in Ideato Local Government Area”. A Certificate of Purchase of this land, described as “belonging to Mr. Brendan Aradiogbu” was issued on 8/10/1986 to Mr. Charles Emegbo of Arondizuogu “in execution of the Judgment/Order in the above action by order of this Court dated 7th day of April 1986.” The property was thence assigned by the Purchaser Mr. Charles Emegbo by Deed of Assignment said to have been made on 7/4/2003 to the Respondent herein.

This then is the history of the protracted dispute over the land.

With regard to the instant suit before the lower Court, the Appellants, in their amended Statement of Defence had alleged under the “Particulars of Fraud, Misrepresentation and Deceit” that the appeal against the decision

of the Magistrate Court granting judgment in their favour was never brought to their attention, neither were they served with any processes. The costs awarded by the Magistrate Court in their favour was paid to them by the Respondent.

They alleged further that it was only in the lower Court that they were made aware of the purported appeal in HOR/1A/84 against the judgment in their favour of the Chief Magistrate Court. They denied that any judgment of that case was brought to their attention, neither was there knowledge by them of any award of costs. They denied that they briefed any Counsel to appear on their behalf. They further denied knowledge of any auction sale of the land in dispute. They wondered that if the appellate Court in HOR/1A/84 granted the appeal of the Respondent and set aside the judgment of the Magistrate Court, with an award of costs against them (Appellants), what then was the justification for a Writ of Attachment against their immoveable property, being the land in dispute? Alleging fraud and collusion, they pointed out that Charles Emeabo, who allegedly bought the auctioned property and purportedly sold the land to the Respondent, was the father-in-law of the Respondent.

This allegation, I note was not denied by the Respondent in his Reply to the Statement of Defence.

In the event that these allegations are true, the deduction would be that what the Respondents family failed to get in litigation, is being obtained under cover of a purported auction.

While one is not saying that these very weighty allegations are true, it was incumbent on the lower Court to have considered them in line with the evidence given in proof thereof and not simply rest its conclusion on the fact that as there was no Counter Claim or cross action the Appellants had put nothing forward. The Court, it is clear, failed to take into consideration the real matters arising for determination in the suit.

He must not impair the evidence either with his personal knowledge of matters not placed and canvassed before him or by inadequate evaluation and should endeavour to avoid vitiating the case presented by the parties through his own wrongly stated or misapplied principle of law. He must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case and then proceed to resolve them. His duty is to each a decision only upon the basis of what is in issue and what has been demonstrated upon the evidence by the parties and is supported in law.”
See also Ogundalu v. Macjob (2015) 8 NWLR Part 1460 Page 96 at 116-117 Para F-A per Rhodes-Vivour JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F.
The lower Court, I hold, clearly failed in this primary duty. Without a proper evaluation of the evidence presented by the Appellants, it is impossible for the lower Court to have come to a just resolution of this matter, for which an appellate Court must intervene to prevent a miscarriage of justice.
A judgment which ignores facts or evidence before it is said to be perverse. See Abegunde v. Ondo State House of Assembly (2015) 8 NWLR Part 1461 Page 314 at 343-344 Para H-D, 346 G-H per M.D. Muhammad JSC; Mamonu v Dikat (2019) 7 NWLR Part 1672 Page 495 at 526-527 per Peter-Odili JSC.

The judgment, I accordingly hold, having ignored evidence

placed before it by the Appellants, was against the weight of evidence. I thus resolve the third issue for determination in favour of the Appellants.

Having held as I have above, in resolution of the 3rd issue, this appeal succeeds. I set aside the judgment and orders made by the lower Court, sitting at Nkwerre Judicial Division of Imo State delivered on the 31st day of January, 2017 by S.I. Okpara J. This case is remitted to the Chief Judge of the High Court of Imo State for retrial before another Judge of the High Court.
The Respondent shall pay Costs of N200,000 to the Appellants.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the benefit of reading in draft the leading judgment prepared by my learned OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A and I agree entirely with the manner in which all the issues considered for the resolution of the appeal have been decided. I have nothing to add to the lucid leading judgment by way of contribution.

In the circumstance and particularly in the light of the manner in which issue 3 considered in the leading judgment has been resolved, I too find the appeal to succeed. I abide by the consequential orders

contained in the leading judgment including the Order in respect of costs.

AMINA AUDI WAMBAI, J.C.A.: I had the priviledge of going through the draft copy of the lead judgment of my learned brother, Oludotun Adebola Adefope-Okojie, JCA, and I agree with the reasoning and conclusion that the appeal is meritorious. I abide by the orders remitting the case to the Honourable Chief Judge of Imo State for retrial by another Judge and as to cost.

Appearances:

O. Nwankwo, Esq. For Appellant(s)

N. Enebeke, Esq. For Respondent(s)