Chief Benson Ezike & Ors. V. Chief Alphonsus Egbuaba (2007)

LawGlobal-Hub Lead Judgment Report

SAULAWA, J.C.A.

This is an appeal against the decision of the High Court of Imo State, holden at Orlu Judicial Division on 05/5/98, coram S. N. Nwachukwu, J. The judgment appeal against arose out of two consolidated suits namely: (i) HOR/18/93 and (ii) HOR/59/94, respectively. The first suit was instituted by the appellants, in a representative capacity, against the respondent. The second suit was filed by the respondent, likewise in a representative capacity, against the appellants.

As it would appear from the records of appeal, pleadings were filed and exchanged by the parties in both suits which were thereafter consolidated for trial. It is instructive that in the course of the trial, the respondent obtained the leave of the trial court to amend the statement of claim thereof in suit No. HOR/59/94, in consequence of which the appellants filed the joint amended statement of defence thereof. At the conclusion of the evidence and addresses of counsel, the learned trial Judge delivered judgment in favour of the respondent, thus:

“This court accepts the evidence and find a fact that the defendants are the owners in possession of the land in dispute. This court is equally satisfied that when the plaintiffs entered into the land to cultivate it or harvest the economic crops on the land, as given in evidence, they did so without the permission or licence of the defendants. These are indeed acts of trespass on the land by the plaintiffs. On the fact pleaded by the parties and the evidence adduced the judgment of this court is therefore entered for the defendants as follows:-

(1) The defendants are entitled to the statutory right of occupancy over the piece and parcel of land called Ala Ama Umuiroha at Ezinkwo village in Ihioma, Orlu L.G.A. and shown in survey plan No. DS2576/M304D/74 filed in this suit by the defendants.

(2) General damages N150.00 is awarded against the plaintiffs for trespass.

(3) The plaintiffs by themselves, their servants, agents and/or privies are perpetually restrained from further committing any acts of trespass on the said land or from disturbing the defendant rights of occupancy of the land.”

Not unnaturally, being dissatisfied with the judgment in question, the appellants filed this appeal upon two grounds of appeal. However, with the leave of the court, the appellants have filed 8 grounds of appeal, as amended.

It is rather instructive that parties have filed and exchanged their respective briefs of argument, which they adopted on 25/01/07 when the appeal came up last for hearing. The appellants had initially filed the brief thereof on 22/12/98 but which deemed properly filed and served on 23/02/2000. However, that brief was superceded by the appellants’ amended brief filed on 19/12/2000, but which as deemed properly filed and served on 24/4/2001. Thus, the earlier brief filed by the appellants is deemed abandoned and thus struck out.

It is evident from the record that the respondent had filed a brief of argument on 13/4/99 supposedly in response to the appellants first brief filed on the said 23/12/98. When the appeal came up for hearing on 25/01/07, the learned counsel to the respondent informed the court thus:

“Ahama: The respondent’s brief was regularized on 21/5/02, The respondent formulated 2 issue, We adopt the brief.”

The appellants have on their own part also filed a reply brief on 07/11/2001 to the respondent’s brief.

The appellants have formulated a total of six issues for determination in the brief thereof thus:

“1. Whether the learned trial Judge approached the evidence before him and the whole trial in a proper and satisfactory manner,