Chief (Dr) M. C. A. Peterside & Ors. V. H.r.h. Eze Odum G. Wabara & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the High Court of Abia State sitting at Obehie delivered on 12/3/03. In that ruling, the learned trial Judge granted the Appellant’s application for an order for extension of time within which to file their statement of claim, but refused the Appellant’s prayer for leave to enter the land in dispute with their surveyor for the purpose of surveying and producing a plan of the land in dispute. This is an appeal against the order refusing the prayer for leave to enable a surveyor enter the land and produce a plan of the land in dispute.

The Appellants filed four grounds of appeal. Issues were joined and parties filed their briefs.

The Appellant’s brief is dated 3/2/05 filed on same day. The Respondent’s brief is dated 19/10/05 filed on 21/10/05 but deemed filed on 8/2/10.

The Appellant’s claim before the lower court is as stated below:

“1. The sum of N1,000,000.00 (one million Naira) against the Defendants jointly and severally for acts of trespass committed by the Defendants on the Plaintiff’s family estate at Umuogor in Ukwa West Local Government Council, Abia State on or about 1998.

2. An order of perpetual injunction restraining the Defendant’s servants, agents and workmen from committing further trespass on Plaintiff’s family estate at Umuogorin Abia State.”

In the notice of appeal, the Appellants asked for the following relief:

“To allow the appeal, set aside the ruling of the trial Judge and grant leave to the Plaintiffs to enter the land in dispute with their surveyor in order to produce a plan of the land in dispute.”

The Appellants distilled three issues for determination set out below:

1. Was the learned trial Judge right when he held that even if the Plaintiffs’ request to be allowed to enter the land in dispute and produce a plan thereof was granted any plan made by the plaintiffs thereafter would be inadmissible as a document produced by a person interested at the time when proceedings were pending under S.91 (3) of the Evidence Act?
2. Was the learned trial Judge right when he held that plan of the land in dispute was unnecessary having regard to the fact that the Plaintiffs had earlier surveyed the land in dispute in 1918?
3. Was the learned trial Judge right when he held that the identity of the land in dispute was not in issue in the instant case?”

I will adopt these issues as they are similar in content to the Respondent’s issues and in any case best represent the complaints of the Appellants against the ruling of the lower court. On Issue 1, counsel submitted that the lower court erred in holding that a dispute plan produced by a Surveyor is inadmissible in evidence under S.91(3) of the Evidence Act because it would be a document made by a person interested at a time when proceedings were already pending.”

Counsel submitted that a surveyor who makes a dispute or ordinary survey plan is an expert in his field who gives a truthful opinion of a matter within his knowledge. He cited the following cases – CHIEF ALIMI ODUNSI APENA & 3 ORS. v. CHIEF NURUDEEN LAWAL AITETOBI (1989) 1 NWLR Pt,95 Pg.85 at 94 paragraphs E-G. See also PETER OKONKWO & 5 ORS. V. BERNARD OKONKWO & 5 ORS. (2004) 5 NWLR Pt.865 Pg.87 at 126.

Respondents’ counsel on the other hand argued that a surveyor preparing a plan in the circumstances of this case would be a person interested within the meaning of Section 91(3) of the Evidence Act. He cited AGBALLAH v. NNAMANI (2005) ALL FWLR Pt.245 Pg.1052 at 1079 to 1080. Counsel argued that APENA v. AIYETOBI (supra) and OKONKWO v. OKONKWO (supra) are inapplicable to this case.

In this case, the learned trial judge held that as follows on this issue on page 28 of the record:

“As aptly submitted, such a prayer offends Section 91(3) of the Evidence Act to the extent that it is made during the pendency of the matter and such a move or order cannot be sustained.”