Nweke Nwabueze & Ors. V. Uyaemenam Nwora & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

Before the High Court of Anambra State in a consolidated suit AA/53/77 and AA/11/77, the plaintiffs sued the 1st set of defendants – Nweke Nwabueze and & Ors. for themselves and on behalf of Umugama Village Ukwulu, for declaratum of title, damages for trespass and perpetual injunction over a parcel of land known `as Agu-Okpuluoji. The 2nd set of defendants, Nwoye Ofoedu and three others for themselves and on behalf of Oranto and Akpu Villages of Ukpo counter-claimed against the plaintiffs for declaration of title, damages for trespass and injunction over a parcel of land which the 2nd set of defendants call Ogululugwu. After the three parties presented their respective cases before the lower court, the learned trial Judge Justice Obiora Nwazota dismissed the plaintiffs’ claims and allowed the counter claim of the two sets of respondents on the 12th of November, 1999. The plaintiffs not only appealed against the judgment, but also brought an application to stay the judgment. The learned Chief Judge of Anambra State granted a stay of execution of the judgment, pending the bearing and determination of the appeal lodged by the plaintiffs against the said judgment; on the 14th of December, 2000. Being dissatisfied with the said ruling which stayed the execution of the judgment pronounced in their favour, the two sets of defendants filed a joint notice of appeal on the 20th of December, 2000 against the order of stay of execution. The ruling in respect of the order of stay is on pages 156-164 of the record of proceedings. The notice and the grounds of appeal cover pages 166-168 of the record. The plaintiffs filed three original grounds of appeal, and through an order of court granted on the 3rd of June, 2002, filed six additional grounds of appeal, which brings the total number of the grounds of appeal to nine. In the process of filing the necessary papers for the appeal against the order of stay, particularly the exchange of briefs by the parties, the respondents filed notice of preliminary objection on the 13th of March, 2003 praying the court to grant them the opportunity to argue at the hearing of the appeal that it is incompetent and consequently to strike same out.

Parties exchanged briefs in respect of the judgment against the order of stay. The appellants in the brief filed on 3/6/2002 distilled four issues for determination in the appeal as follows:

(a) Whether the lower court was right in granting stay to protect a party adjudged trespasser to land and regarding proven acts of trespass on the land?.

(b) Whether the lower court failed to give adequate consideration to pertinent and material issues in opposition to and grant of stay?.

(c) Whether the lower court was right in basing the grant of stay on the alleged threat of destruction of Abba Community Secondary School?.

(d) Whether the exercise of discretion by the court is bona fide, sound, fair and consistent with relevant and established judicial authorities of higher tribunals of this country?.

“The respondents in their brief filed 13/3/2003 raised three issues for determination as follows:

(1) Considering the circumstances of this case and the affidavit evidence filed before the lower court, whether or not the lower court rightly exercised its discretion in granting the application for stay of execution whether the Court of Appeal will substitute its views for those of the lower court on issues joined in the affidavit evidence to reverse the stay of execution granted by the lower court.

(2) Assuming without conceding that the lower court wrongly exercised its discretion in granting the application for stay of execution pending appeal, whether or not the Court of Appeal will reverse this exercise of discretion and or substitute it with his own.

The parties argued the preliminary objection raised and the appeal simultaneously. The grounds for the preliminary objection are as follows:

(a) That the appeal is incompetent by reason of the fact that no leave of either the lower court or the court of appeal was sought and obtained before the three original grounds of appeal were filed.

(b) The additional grounds of appeal numbered as grounds 4-9 and their particulars are prolix, unwieldy, argumentative and repetitive and are liable to be struck out.

(c) Additional grounds 4 and 8 are vague and contravene the rules of this court.