Peter Ojoh V. Owuala Kamalu & Ors (2005)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C.

This is an appeal against the judgment of the Court of Appeal (hereinafter in the rest of this judgment referred to as the court below) sitting in Port Harcourt, Rivers State, delivered on 29th of February, 2000 allowing the appeal of the respondents (plaintiffs in the trial High Court) by setting aside that court’s decision. The judgment of the court below is at pages 261-275 of the records which concluded (Per Pats-Acholonu,JCA as he then was) at page 274 thereof thus:

“In the final result, the appeal succeeds and the judgment of the lower court is set aside.”

The appellants herein being dissatisfied filed a notice of appeal dated 23rd of March, 2000 containing eight grounds of appeal. By a motion on notice dated 5th November, 2001 the appellants sought the leave of this court to regularize the said appeal, prayers contained therein which this court granted in the following terms:

(i) An order extending the time within which the appellants may seek leave to appeal.

(ii) An order for leave to appeal.

(iii) Extension of time within which to appeal.

(iv) Leave to appeal on grounds other than grounds of law.

(v) An order deeming the annexed notice of appeal was hinged.

The facts of this case as made out in the High Court of Imo State sitting at Aba Division may be briefly stated as follows:

The respondents as plaintiffs/cross-appellants in the High Court of Imo State, Aba Judicial Division claimed against the appellants herein defendants that:

“(1) The plaintiffs are at all material times to this action in actual and peaceable possession of the piece or parcel of land known as and called “Egbelu Umuogele” land (hereinafter called “the land in dispute” situate at Umuocham village area within jurisdiction of the High Court, Aba and of an annual value of N10.00 (Ten Naira).

(2) On the 8th day of August, 1982 the defendant by himself, his servants or agents willingly and unlawfully broke and entered into the said land in dispute with a caterpillar and damaged the plaintiffs palm trees, raffia palms and pears and farm land, without the leave, consent or licenses of the plaintiffs.

(3) The defendant has since started to fence the said land and to put up a batcher thereon and posted something thereon and will continue to so trespass thereon unless restrained by the court.