Godwin Tsa, Abuja
The Supreme Court has finally resolved the 44 years old land dispute brought by feuding communities in Anambra state in favour of Umuagama village (Ukwulu) and Oranto/Akpu village (Ukpo) in Njikoka Local Government Area of the state.
In a unanimous judgment, the Supreme Court dismissed the appeal by the people of Okpuloji Abba Town for lacking in merit.
The court reached its decision after resolving all issues raised in the appeal for determination in favour of the two sets of respondents – listed as representatives of Umuagama village (Ukwulu) and Oranto/Akpu village (Ukpo).
In addition, the apex court awarded a cost of N500, 000 each against the appellants represented by Uyaemenam Nwora, Eric Uzoma, Emesi Okeke, Gabriel Okoye and Nwude Igweonuwu in favour of the two sets of respondents.
Historically, the dispute between the people of Okpuloji Abba Town, Umugama Village Ukwulu and Oranto/Akpu Village (Ukpo) over the parcel of land started as far back as the early 1970s.
However, it took a legal dimension in 1975 where they submitted themselves to the jurisdiction of the Anambra State High Court in a suit marked: AA/53/75 and a subsequent one filed in 1977, marked: AA/11/77.
The suits were later consolidated, and in a judgment by then Chief Judge of the court, Justice Obiora Nwazota, delivered on November 12, 1999, the court declared the title of the disputed land in favour of the people of Umuagama Village (Ukwulu) and Oranto/Akpu Village (Ukpo).
Okpuloji Abba Town, through its representatives – Uyaemenam Nwora, Eric Uzoma, Emesi Okeke, Gabriel Okoye and Nwude Igweonuwu – appealed the decision at the Court of Appeal, Enugu.
The Court of Appeal, Enugu, in its final decision on June 27, 2016 dismissed the substantive appeal on the grounds that the appellants failed to compile and transmit record of appeal within the stipulated period, as provided in Order 8 Rule 4 of the Court of Appeal Rules 2011.
The court also dismissed the appellants’ motion, in which they had sought to direct the Chief Judge of the High Court of Anambra State to re-assign the consolidated suit for hearing afresh, on the grounds that the court’s Chief Registrar had declared the record of proceedings missing.
Uyaemenam Nwora, Eric Uzoma, Emesi Okeke, Gabriel Okoye and Nwude Igweonuwu, acting for Okpuloji Abba Town, subsequently appealed to the Supreme Court, in SC: 589/2016.
The appeal had Nweke Nwabueze, Phillip Okoro and Reuben Ifeka, representing Umugama Village Ukwulu (as the first set of respondents) and Nwoye Ofoedu, Ekemeka Omogu, Ichie Titus Okeke and Eugune Otunabo, representing Oranto/Akpu Village, Ukpo (as the second set of respondents).
While the appellants were represented by Dr. Oladapo Olanikpekun (SAN), the first and second set of respondents were represented by Dr. Joseph Ibik (SAN) and John Egwuonwu (SAN).
Justice Paul Adamu Galinje, who read the lead judgment of the Supreme Court’s decision on February 15, 2019, held that the appellants failed to sustain their allegation of denial of fair hearing and miscarriage of justice.
Justice Galinje said it was the fault of the appellants that they failed to ensure the compilation and transmission of record of appeal within time, as required under Order 8 Rule 4 of the Court of Appeal Rules 2011.
In upholding the Court of Appeal’s dismissal of the appellants’ motion, Justice Galjnje held that the appellants were wrong to have filed their motion, for retrial, at the Court of Appeal.
He said the motion ought to be filed at the trial court, since the appellants’ appeal was not yet properly before the Court of Appeal, and because they were yet to compile and transmit the record of appeal then.
Justice Galinje however advised parties to the dispute to return to the trial court to have the case re-heard because it may be difficult to enforce a judgment, which record is said to be missing from the trial court.
The judge added: “In the instant case there is in place what I may call “force major,” an unexpected occurrence, which has the capacity to defeat even the enforcement of the judgment obtained at the trial court in the two consolidated suits.
“It follows therefore that, if nothing is done, there will be a total failure of justice. The loss of the record of the appeal is a factor that has in my view vitiated and rendered the judgment invalid.
“Is there a way of enforcing the judgment in the absence of the record of the case? This is what may unfold later. I think it is in the best interest of the parties to go back to the trial court and sort out this mess,” the judge said.
Justice Galinje rejected the appellants’ contention that they ought not to be penalised for not compiling and transmitting record when the trial court’s Chief Registrar had said the record of proceedings was missing.
The judge noted that the appellants were not diligent in their handling of the appeal at the Court of Appeal, Enugu.
He noted: “In this matter, the appeal was filed on the 18th November, 1999. The appellants applied for and obtained a stay of execution of the judgment that had adjudged them trespassers on a piece of land, upon which title was declared in favour of the two sets of respondents.
“Thereafter, the appellants stayed away from the trial court and refused to take steps to fulfil the condition of the appeal for tour years until on the 31st of October, 2003 when they deposited the sum of N10,000 on the prompting of the respondents who wrote and complained to the Chief Registrar about the appellants’ failure to take steps to prosecute the appeal.”
On the argument whether the motion for retrial was properly filed, Justice Galinje said: “An appellate court can order as a last resort, for a retrial of a case if part or portion of the record transmitted to it is lost and all effort to trace it failed.
“Where the parties agree that the portion of the record that is missing is inconsequential, and that the hearing of the appeal cannot result in miscarriage of justice, the court can hear the appeal on incomplete record.
“However where no record is transmitted at all, as in this case, all applications including application for the case to be heard de novo must be made to the trial court where the appeal is domiciled.
“An appellate court will have no materials upon which it will assume jurisdiction in the appeal.
“I therefore find nothing wrong with the decision of the lower court in refusing the application for an order of trial de novo and for dismissing the pending appeal before it for failure to compile and transmit the records of appeal after fourteen years of filing the appeal
“Where an application to hear the case de novo is made before the trial court, that court must first of all set aside its judgment before making an order for trial de novo.
“This is to avoid any confusion that may arise if subsequently the lost judgment is found.
“A situation will arise where there may be two competing judgment, especially where there is variation in the latter judgment,” Justice Galinje said.