Dr. Augustine N. Mozie & Ors V. Chike Mbamalu & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C. 

This appeal involves land in Omenu family of Umueri, Ogbunike in Oyi Local Government Area of Anambra State. The Omenu family owned the Ani Owelle land which consisted of a large expanse of undeveloped and uninhabited land. The 1st appellant, a medical practitioner, desirous of building a cottage hospital and his residential accommodation, applied for a parcel of land in Ani Owelle. He was allocated some plots of land. While it is the case of the plaintiffs/respondents that the application was for four plots, the defendants/appellants said that the 1st defendant/appellant applied for unlimited number of plots, leaving it to the discretion of the family to allocate to him the piece of land which will be sufficient to accommodate a hospital and a residential accommodation.

The 1st appellant built a hospital on the parcel of land allocated to him. The hospital was duly commissioned in 1984. Trouble ensued in 1985 when the allocation made to the 1st appellant raised some controversy and dispute. The respondents sued the 1st appellant together with the 2nd to 6th appellants and asked for five reliefs. The 7th appellant was also in the suit.

The learned trial Judge dismissed the suit of the plaintiffs/respondents. He said:

“It is my view that in the light of the conflicting evidence adduced by the plaintiffs it cannot be said that exh. 3 or the survey plan attached to exh. 8 is forged. The plaintiffs have not proved the alleged fraud beyond reasonable doubt. I hold that in the light of the evidence of DW1 and DW2 which I believe, exh. 3 and the survey plan attached to exh. 8 could not have been forged.”

On appeal, the Court of Appeal set aside the judgment of the trial Judge.

The court said at page 248 of the record:

“In the similar manner, since the 1st respondent took more land than was originally granted to him without recourse to the family, such taking of extra land was done fraudulently and must be set aside. The appeal therefore succeeds and is hereby allowed. Judgment of Amaizu, J. (as he then was) dated 14/7/95 is hereby set aside. The appellants are entitled to all the declarations and orders claimed by them under paragraph 16 of their amended statement of claim…”

Aggrieved, the appellants have come to this court. Briefs were filed and duly exchanged. The appellants formulated eight issues for determination, while the respondents formulated four issues. I will not reproduce the twelve issues here. I do not have such space. But I have enough space to ask what are eight issues doing in an appeal that has only five grounds of appeal This court has condemned proliferation of issues. As a matter of procedure, issues should not outnumber grounds of appeal. This is because issues are framed from one or more grounds of appeal, preferably more than one ground of appeal. The reverse position is the practice and it is that grounds of appeal outnumber issues. See generally Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646, Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.13I) 137; Anon Lodge Hotels Ltd. v. Mercantile Bank of Nigeria Ltd. (1993) 3 NWLR (Pt. 284) 721.

Let me first take issue No.3 of both the appellants and the respondents.

Issue No.3 of the appellants’ brief reads:

“Whether the court below was right in castigating and reversing the submission of the learned counsel for the defendants/appellants that as none of the plaintiffs/respondents was head of the family and sued in their individual rights, the action was wrongly or improperly constituted and incompetent.”

Issue No.3 of the respondents’ brief reads:

“Whether the respondents had the competence to maintain this action”