Chief Mbanugo & Ors V. Lt. Col. Macaulay Onyukwu Nzefili (1997)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal by the defendants from the judgment of Bazunu, J. delivered at Kwale High Court in Delta State on 12/5/89 in Suit No. HCK/32/83. The present appellants were the defendants at the lower court while the respondent was the plaintiff. The plaintiff’s claim against defendants jointly and severally as formulated in the further amendment to amended statement of claim is for (a) N115, 500.00 special damages for trespass to economic trees, cash crops, animals and fish ponds; (b) N40.000.00 general damages; and (c) perpetual injunction restraining the defendants or their agents from further committing acts of trespass on the land in dispute.

The land in dispute, as pleaded in paragraph 5 of the further amendment to amended statement of claim is situated in Okoliri Village in Afor in Ndokwa Local Government Area of Bendel State and is verged pink on plan No. 1002/A of 1941 and which was tendered and marked as Exhibit “A” in suit No. W/11/1943 by defendant’s predecessor, one Nwabudike..” At the conclusion of pleadings.

The parties led evidence in support of their respective pleadings. Learned Counsel for the parties thereafter addressed the court which then reserved its judgment. In its said judgment delivered on 12/5/89, the learned trial Judge dismissed the plaintiffs case in its entirety, the learned trial Judge held, inter alia, in the concluding portion of the judgment:-

“Apart from the above, the evidence in support of the claim for trespass and for damages is rather unsatisfactory.

If claim for trespass had not been statute barred, I would have held that it has not been proved in view of the unsatisfactory nature of the evidence in proof of the claim. With regard to the claim for injunction, I hold that it must also fail in view of the fact that the claim for trespass upon which it is based has failed.

For the foregoing reasons the plaintiffs claim for trespass and perpetual injunction fails and it is accordingly dismissed. There will be no order as to costs.”

Although the plaintiffs claim was dismissed, yet the defendants were dissatisfied with some aspects of the judgment. They have accordingly appealed against it to this court. To that end four grounds of appeal were filed. The 4 grounds of appeal filed without their particulars read as follows;

“1. The learned trial judge erred in Law when suo motu and without giving the defendants any opportunity to be heard on the issue of the cost of the whole suit he ordered that “there will be no order as to costs” a discretion which the lower court did not properly and judiciously exercise.

2. The learned trial judge erred in law when he held “that the identity of the Land in dispute is not in issue” and that “the subject matter of this action is well known to the parties, even though they chose to refer to it by different names,
3. The Learned trial Judge erred in Law when he held “that the plaintiff and his ancestors have been in exclusive possession of the Land in dispute” and that the plaintiffs have proved a better title than the Defendants.
4. The decision of the learned trial Judge as regard the extent and identity of the land and the title thereto cannot be supported having regard to the weight of evidence before the court.”

The relief sought from this court by the appellants, as set out in their notice and grounds of appeal also reads thus:-

“4. Relief sought from Court of Appeal:-

(a) To make an order as to cost of the trial in the lower court in favour of the defendants/appellant.

(b) To set aside and declare erroneous the finding of the lower court that the extent and/or identity of the land is certain, known to the parties and relates to exhibit “A1″.

(c) To set aside and declare erroneous the finding of the lower court that the plaintiffs have exclusive possession of the Land and that the plaintiffs have proved better title thereto than the defendants.”