Daniel Dibiamaka & Ors. v. Prince O. Osakwe & Ors. (1989)



Daniel Dibiamaka & Ors. v. Prince O. Osakwe & Ors. (1989) – SC

by PaulPipAr

⦿ TAG(S)


1. Daniel Dibiamaka;
2. Asielu Ikesakwu;
3. Logodokwu Okpuno (For themselves and on behalf of the people of UMUONAI QUARTERS OF AKWUKWU).


1. Prince O. Osakwe;
2. Jacob Bakwunye (For themselves and on behalf of OGBE-OBI AND UMUEKEKE QUARTERS OF AKWUKWU)


1. Obiodor;
2. David Odor;
3. Nwadieze Odor (For themselves and on behalf of ANINWAELO TOWN near AKWUKWU);


(1989) NWLR (Pt.107) 101;
(1989) ALL NLR 472;
(1989) LPELR-940(SC)


Supreme Court


Oputa, JSC.



– O. Oyewole.


– M. A. Agbamuche, S.A.N.


⦿ FACT (as relating to the issues)

The Claim of the plaintiffs against the two sets of defendants was for:
i) A Declaration of Title to a piece and parcel of land situate in Umuonai Village Akwukwu known as and called “Mbugudu Azuiyi” land.
(ii) 400 Pounds damages for trespass upon the said land by entering the said land 2 years ago and destroying vegetation and economic crops and taking gravel thereof.
(iii) Perpetual Injunction restraining the defendants by themselves, servants or agents or otherwise from continuing or repeating the said wrongful claim.

The 1st set of defendants as plaintiffs in A/18/71 claimed in their own action against the plaintiffs in A/18/67 as follows:
1. Declaration of title to the piece and parcel of land known and called Mgbadudu- Azuno.
2. Injunction restraining the defendants, their agents and assigns etc. From further trespass.
3. Forfeiture of customary tenancy for having asserted ownership and for other acts within mentioned.
4. N500 for trespass in that as from the end of 1969 December the defendants continued to hold over after the plaintiffs have given them (defendants) 2 (two) years notices to quit and remove the agricultural crops.

At the end and in all, the Learned Trial Judge gave judgement in favour of the defendants and against the plaintiffs.

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1. Have the appellants on the strength of their case, been denied justice by the trial Court and the Court of Appeal?




i. I set out in some details the findings of the learned trial Judge. He rejected the traditional evidence of the plaintiffs which he described “as most unconvincing”. He rejected EX.A which tried to show that the plaintiffs were owners of adjoining land. He accepted EX.B which made the defendants the owners of the said adjoining land. He disbelieved the plaintiffs’ evidence relating to the second set of defendants…Rather he accepted the evidence of the defence that the 3rd to the 5th defendants the 2nd set of defendants were put on the land by the 1st and 2nd defendants. The learned trial Judge found that Ex.C, the judgment in Suit No. 98/29 “concluded the issue” against the plaintiffs. He believed the 1st and 2nd defendants and disbelieved the plaintiffs’ evidence of their traditional history and on acts of possession which he found was not exclusive to the plaintiffs but were done promiscuously by all the parties to this dispute.

ii. The learned trial Judge found that the land in dispute between the plaintiffs on one side and the two sets of defendants on the other was one and the same land. He then also found that this land belongs to the 1st Set of defendants. Further he accepted the evidence of the 4th defendant that it was the 1st Set of defendants that put the 2nd Set of defendants on the land in dispute. The position then is that radical title to the land resided in the 1st set of defendants and not either in the plaintiffs or the 2nd set of defendants. Obviously the plaintiffs and the 1st Set of defendants whose claims are adverse cannot be both owners of the same land in dispute. Once the 1st Set of defendants are declared to be radical owners of the land in dispute, there is nothing on which to posit a declaration of title in favour of the plaintiffs even against the 2nd Set of defendants in and over the self same land.

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iii. The learned trial Judge was effectively in charge all the time. He was dominus litis magnus. His evaluation of the evidence bears the mark of freshness which dismisses the argument that he has forgotten the impressions made on him by the witnesses. His findings of fact were all supported by available credible evidence. Why should this Court now interfere? I see no reason for such interference.




Eso, J.S.C., opined in Engineering Enterprises v. A.G. Kaduna State (1987) “Sometime in the course of writing a brief learned counsel involved in a case sees the futility of his course”.

Onwuka v Ediala (1989) 1 N.W.L.R. (Pt.96) 182 at pp.208/209: “This scale though imaginary is still the scale of justice and the scale of truth. Such a scale will automatically repel and expel any and all false evidence. What ought to go into that scale should therefore be no other than credible evidence. What is therefore necessary in deciding what goes into the imaginary scale is the value, credibility and quality as well as probative essence of the evidence. If any evidence is disbelieved then such evidence has no probative value and should not therefore go into the imaginary scale.”





And it is the policy of this Court not to disturb such findings unless it is shown that either they were perverse or that there was a substantial error either in substantive or procedural law which if uncorrected will lead to miscarriage of justice. – Oputa, JSC. Dibiamaka v. Osakwe (1989)

No counsel can file a good Brief who does not even understand his case or who cannot properly appreciate the reasons for the decision. A good Brief is thus a reflection of counsel’s acquaintance and appreciation of the case for or against his side. – Oputa, JSC. Dibiamaka v. Osakwe (1989)

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A good Brief inevitably attracts, holds and captures the attention and interest of the Judge and is fitting wedge to drive conviction into the mind. A bad Brief is a great dis-service to the case the lawyer desperately wants to present and is thus of no assistance to the Court or even to counsel who, not understanding his own case, cannot put same across. – Oputa, JSC. Dibiamaka v. Osakwe (1989)

Justice in our Courts is justice according to law. And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge. – Oputa, JSC. Dibiamaka v. Osakwe (1989)

I would however wish to recommend to learned counsel in this case and other counsel who still find Brief filing tedious to have as a companion a book titled “Manual of Brief Writing in the Court of Appeal and Supreme Court of Nigeria” by the Hon. Justice Philip Nnaemeka-Agu, a Justice of the Supreme Court. The book would educate them on all that is necessary in brief writing. I also recommend a visit to the Supreme Court Registry and take the leave of the Chief Registrar to study some briefs that have been filed in this Court by some Senior Advocates of Nigeria and also counsel who are non-silk. The briefs are not only illuminating they educate both Bar and Bench. – Eso, JSC. Dibiamaka v. Osakwe (1989)




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