Col. Sati Mwana V. Mrs Mary Gomwalk (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA E. NWOSU-IHEME (Ph.D) J.C.A. (Delivering the Leading Judgment)

The Appellant in this appeal is appealing against the judgment of Sha J. of the Plateau State High Court sitting in Jos delivered on the 16th of July 2009 in Suit No PLD/J85/2001 dismissing the Appellant’s claim.

The Appellant (as plaintiff) in the lower Court sued the Respondent (as defendant) seeking the following reliefs:

“(i) An order of interlocutory injunction restraining the Defendant either by herself, servants or privies from erecting any structure or continuing to erect any structure on the access road or blocking the access road to the Plaintiff’s property lying and situate at Rock Haven New Layout, Jos, covered by C of O No BP4377, pending the determination of this Suit.

(ii) An order of interlocutory injunction restraining the Defendant, her agent’s privies or servants from doing any act or further acts calculated to deny the Plaintiff access to his property with C of O No BP 4377 pending the determination of this Suit.”

The Respondent countered the averments contained in the motion. The trial Judge before Ruling on the application visited the locus in quo in company of both Counsel.

The statement of claim was later amended on 24th March, 2004. On the…….of January 2003 the Court delivered its Ruling dismissing the application brought by the Appellant.

After series of amendments and applications, pleadings were filed and exchanged and the matter proceeded to full hearing after which the learned trial Judge dismissed the claim of the Appellant in its entirety.

The Appellant was dissatisfied with both the Ruling and the Judgment. This appeal is predicated on both.

Learned Counsel for the Appellant formulated three issues out of Four Grounds of Appeal, they read

“1. Whether or not the trial Court was right in the evaluation of the evidence led before it in dismissing the Plaintiff’s claim (Grounds 1 and 2)

2. Whether or not the trial Court was right in using its perception, on which no evidence was led at the locus in quo/Court, in arriving at its decision (Ground 3)
3. Whether the Plaintiff/Appellant’s case was not prejudiced by the trial Court pronouncing upon the substantive case at the interlocutory stage (ground 4)

Learned Counsel for the Respondent also formulated three issues for determination as follows:

“(i) Whether or not the trial Court was right in the evaluation of the evidence led before it in dismissing the Plaintiff/Appellant’s claim?

(ii) Whether the Court was right by visiting the locus in quo at the interlocutory stage and using its observation to deliver its ruling and a further visit at the trial before pronouncing upon the substantive case at the Judgment?