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Facts not pleaded go to no issue

IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA
ON FRIDAY, JUNE 14, 2010
BEFORE THEIR LORDSHIPS
NIKI TOBI, WALTER SAMUEL NKANU ONNOGHEN, IKECHI FRANCIS OGBUAGU,  JOHN AFOLABI FABIYI, OLUFUNLOLA OYELOLA ADEKEYE Justices of the Supreme Court
BETWEEN:
AUGUSTINE OBINECHE & 5 OTHERS (For themselves and as representatives of the Umuabor Community of Dikenafai  in Ideato South LGA of Imo State)—— DEFENDANTS/APPELLANTS
AND:
HUMPHREY AKUSOBI & 6 OTHERS (For themselves and as representatives of the Umuchoke Community of Dikenafai in the Ideato  South LGA of Imo State) — PLAINTIFFS/RESPONDENTS
COUNSELS IN THE MATTER:
MR. J.  EGWUONWU FOR THE APPELLANTS
MR. N.  NWOKOCHA-AHAAIWE FOR THE RESPONDENTS

LEAD JUDGMENT BY JUSTICE OLUFUNLOLA ADEKEYE

This is a land dispute between two communities in Imo State: The Umuchoke Community of Dikenafai, Ideato South LGA of Imo State and the Umuabor Community of Dikenafai aforesaid. The dispute over a vast area of land of which the land in dispute in this case forms a part started 63 years ago in 1947 at the Northern Isu Native Court in Civil Suit No. 301/47.

The case went on appeal to Mr. A.E. Rylands the Acting District Officer, Orlu Division. It went on further appeal to Flight Lieutenant O.J.F. Jones Lloyd, the Senior District Officer with Resident’s powers. Finally the case went on appeal to the Governor’s Court of Appeal under the Native Courts Ordinance (Cap 142) Section 31 in Enugu on 21st February 1952 in Appeal No. 5/1952 where the Umuchoke Community who are respondents in the present Supreme Court case were declared owners of the land in dispute by J.G. Pkye V. Wott (Lieutenant-Governor, Eastern Nigeria).

The earlier case in respect of the larger vast area of land of which that now in dispute at the Supreme Court forms a part, and which lasted between 1947 and 1952, was between the Umuchoke Community and the Nkahu community in present day Ideato South LGA of Imo state. The appellants before the Supreme Court in this present case, the Umuabor Community were not parties to that earlier 1947 to1952 suit.

In 1991, the Umuchoke Community brought an action at the High Court of Imo State, Orlu Division against the Umuabor Community in respect of three pieces or parcels of land which forms part of the large parcel of land earlier litigated between 1947 and 1952 between Umuchoke and Nkahu Communities which had been resolved in favor of Umuchoke Community.

The three parcels of land are “Ala Isiobi Akusobi”; Ala Isiobi Amaechi” and Ala Mgbola Onyewuchi”. The Umuchoke Community claimed that they were entitled to the Customary Right of Occupancy to the said lands as well as an injunction restraining the Umuabor Community from further trespass into the said lands and also an order of forfeiture of the rights of the Umuabor Community in respect of said lands, etc.

The Umuabor Community filed a Statement of Defence as well as a Counter-Claim in which they claimed ownership of the lands in dispute, an order of forfeiture of the rights of the plaintiff Umuchoke Community to the lands in dispute and an order of perpetual injunction restraining the Umuchoke Community from further trespass into the land in dispute.

By their pleadings and evidence at the Imo State High Court, Orlu, the plaintiffs, the Umuchoke Community gave their root of title to the land in dispute and more especially relied on the 1952 judgment in their favor as establishing their title to the lands in dispute which formed part of the lands litigated between 1947 to 1952. At paragraph 19 of their Amended Statement of Claim the plaintiff Umuchoke Community clearly pleaded that:  “the entire portions, which the defendants now falsely claim, form part of a larger area of land over which the plaintiff as Umuchoke secured judgment in the Governor’s Court of Appeal under the Native Court Ordinance (Cap 142) Section 31 in Enugu on 21st February 1952 in Appeal No. 5/1952….. The plaintiffs hereby plead and shall at the trial rely on certified true copy of the judgment……and also pleads the certified true copy of that dispute Survey Plan No. OR/1/48 made for Case No. 301/47…”

By way of reaction, the defendant Umuabor Community merely pleaded as follows: “The defendants deny paragraph 19(a) and (b) of the Statement of Claim. With particular reference to paragraph 19(b) of the Statement of Claim, the defendants shall contend that judgment is irrelevant to this suit and should be disregarded”.

At the trial before the High Court of Imo State, Orlu Judicial Division, the plaintiff Umuchoke Community, among other witnesses, also subpoenaed the Surveyor-General of Imo State who testified as PW 11 and tendered a composite plan which verified and confirmed that the land in dispute was part of the larger area of land disputed between 1947 to 1952.

In its judgment delivered on the 14th day of August 1996, the High Court dismissed the suit and entered judgment for the defendant Umuabor Community on their counter-claim. Dissatisfied with this judgment, the Umuchoke Community appealed to the Court of Appeal, Port Harcourt Division. The Court of Appeal on the 8th day of July 2003 allowed the appeal, set aside the judgment of the trial High Court and entered judgment for the Umuchoke Community on the basis, among others, that their title to the land in dispute had already been established by the 1952 judgment of the Governor’s Court of Appeal, Enugu.

The Umuabor Community were dissatisfied with this judgment and appealed to the Supreme Court which on the 4th day of June, 2010 dismissed the appeal, and confirmed the judgment of the Court of Appeal, Port Harcourt Division.

The Supreme Court in arriving at their decision took the following into consideration:

1.The Supreme Court agreed with the learned Counsel for the respondents, Mr. Nnamdi Nwokocha-Ahaaiwe that the appellants had at the trial court failed to properly traverse the pleadings of the respondent Umuchoke Community to the effect that their title to the land in dispute was established by the judgment in their favor at the Governor’s Court of Appeal in 1952. In her lead judgment, Hon. Justice O.O. Adekeye, J.S.C. said that:  “In view of the fact that the appellants only pleaded that the judgment of 1952 is irrelevant and nothing more, they are not in a position to lead any evidence in rebuttal of their contention. It is trite that facts not pleaded go to no issue”.

The Supreme Court therefore held that the appellants had failed to join issues on the facts of substance raised by the respondents regarding the 1952 judgment in their favor.


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