Emmanuel M. O. Chukwuogor V. Richard Obigigbo Obuora (1987)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C. 

This appeal has its genesis in an action filed in the High Court of East Central State in the Anambra/Awka Judicial Division holden at Awka on the 27th day of April, 1974, i.e. just over 13 years ago. The claim is in respect of the right to use a road and as set out in paragraph 25 of the statement of claim filed by the plaintiff/appellant, reads:

“Wherefore the plaintiff claims from the defendant as follows:

(a) A declaration that the plaintiff is entitled to the use of the road leading from the Enugu-Onitsha road to the house of the plaintiff and the house of the defendant at Umuogbunu village, Awka town within the court’s jurisdiction at all times. The said road is verged PINK on plan No. PO/E98/74 filed with this statement of claim;

(b) N200.00 being damages for nuisance;

(c) An injunction restraining the defendant, his servant or agents from obstructing the plaintiff from the use of the said road.”

On the order of the High Court (Aseme, J.) pleadings were filed and served and exchanged. At the close of pleadings, the case was listed before Umezinwa, J. for trial. The learned trial judge after hearing evidence and addresses and conducting an inspection of the locus in quo, dismissed the plaintiff’s claim in its entirety.

The case for the defence was closed on the 8th day of April, 1981. The learned trial judge then adjourned the hearing of the addresses of counsel to the following day. Counsel for the parties did give their addresses on the whole case on that day and at the conclusion of the addresses, the court decided to and made an order to visit the road on 9th November, 1981. On the same day, he adjourned the case to 15th December, 1981 for judgment to be delivered. In other words, judgment was to be delivered after the visit to and inspection of the locus in quo. The learned trial judge did deliver his judgment on the 15th day of December, 1981 the concluding part of which reads:

“I do not believe plaintiff and his witnesses that the road was constructed by the Awka Local Authority. I am satisfied from the evidence before me that the road is a private road constructed by the defendant’s mother to enable her and her children have access from their compound to the Onitsha-Enugu major road. The road is not a public road. I do not consider it necessary to further consider whethcr the plaintiff suffers any damage peculiar to himself which will entitle him to bring an action for public nuisance since I have found that the road is not a public way.

In the result, the plaintiff’s action fails and is missed … accordingly dismissed.”

Earlier on, the learned trial judge discussed his observation during the inspection of the locus in quo on the 9th of November, 1981 as follows:

“In the presence of the parties and their counsel, I visited the road in dispute. The road was correctly descried as a track by the higher technical officer for, my inspection clearly showed that it is a road through which the defendant has access from his compound to the Awka-Onitsha main road. The road merely leads from the major road directly to the defendant’s compound where it terminates. Plaintiffs compound does not even face the road: indeed, apart from one exception, none of the compounds of the other neighbours who have their compounds along the road faces this road.”

The plaintiff was not satisfied with the judgment and so lodged an appeal against the decision to the Court of Appeal on four grounds. The appeal came before the Court of Appeal (Phil-Ebosie, Aseme and Belgore. JJCA.) sitting at Enugu. After hearing the submissions of counsel, the Court of Appeal (Aseme, JCA. dissenting) dismissed the appeal in a well considered judgment. In the course of his judgment, Phil-Ebosie. JCA, who read the lead judgment (with the concurrence of Belgore, JCA.) said:

“Having considered the case made out by the parties before the learned trial Judge, I do not think that Umezinwa, J. could be successfully accused of failing to fully and fairly consider the case of the parties or failing to evaluate their evidence . ………………

Finally, it was submitted that the learned trial judge did not resolve the conflict in the evidence of d.w.s. 3 and 5 and the pleadings in paragraph 10 of the statement of defence. It was also submitted that the D.W.1’s evidence which was relied on by the judge was worthless in that the witness was not employed by the council in 1959 when the access road was constructed and could not therefore give evidence pertaining to the council’s transactions in 1959. It is not disputed that council keeps records of the road it constructed or maintained and that D.W.1, the Higher Technical Officer of the Council kept the record. It must he presumed until the contrary is proved, that these records began from the time the council was established. If the council was in existence in 1959, and had constructed a road, it is expected that the road would be recorded in their list. As the list is in the possession of D.W.1. I hold the view that D.W.1 could, in his official capacity, say if this is the council’s record. His evidence is opposite. Regarding the complaint about the conflict between the pleadings and the evidence of D.W.3 and), I do not think that there was any material conflict and consequently, it is my view that the learned judge rightly ignored the issue. For all these reasons as set out above, I am of the view that the appeal has no merit and should be dismissed.”

The grounds of appeal considered by the Court of Appeal were grounds involving questions of facts and mixed law and fact. The court carried out a detailed examination of the evidence led and the findings of fact and came to the conclusion that the appeal has no merit.

Still aggrieved by the decision of the Court of Appeal, the plaintiff has further appealed to this Court with leave of the Court of Appeal. Six grounds of appeal were filed with the notice of appeal and with leave of this Court an additional ground was filed and argued. The grounds read: (1) That the judgment is against the weight of evidence:

(2) That the Court of Appeal erred in law and misdirected itself in law in confirming the judgment of the lower court when the lower court failed fully and properly to evaluate and consider the whole case made by the parties and to make specific findings of fact on the various issues before it.

Particulars of Error and Misdirection

(i) that a party to a case is entitled to have the whole case made out to be considered by the court but the lower court failed to do so in this case;

(ii) that vital issues established by the plaintiff/appellant and the admissions and answers elicited from the defendant/respondent and his witnesses were ignored by the lower court in coming to a decision;

(iii) that no specific findings were made on the following:

(a) the uncontroverted evidence on the arbitration by the elders;

(b) donation of land by adjoining land owners for the construction of the access road;

(c) whether or not d.w.3 and d.w.5 have any land adjoining the access road;

(d) whether or not D.W.3 and D. W. 5 have any land forming part of the access road and the extent of such land, if any;

(e) letter of warning by the Awka community council to the defendant/respondent against obstructing the access road;

(f) use by the adjoining land owners John Nwosu (otherwise James Nwandikaife or Nwandukife Nwosu or John Ndukaife Nwosu or Nwanadukaife Nwugwu Okafor) Mr. & Mrs. Nwanna Williams Mogor Nwachukwu and Udeozor of the access road before the plaintiff/appellant brought his premises shown verged green in Exhibit A;

(h’) That the issue in the case was not simply whether the road in dispute was a public road or a private road;

(3) That the Court of Appeal erred in law and misdirected itself in law in confirming the judgment of the lower court when the said judgment was based on the wrong views the lower court held as to the probative value of the evidence of d.w.1.

Particulars of Error and Misdirection

(i) That the alleged list of roads owned and maintained by the Awka Local Government, Awka was not tendered in evidence;

(ii) That the devastating cross-examination of d.w.l was ignored by the lower court in coming to its decision;

(iii) That it was wrong to conclude from the evidence of d.w.1 that the road in dispute was not constructed by the Awka Local Council;

(3) The Court of Appeal erred in law by abdicating its responsibility and merely rubber stamping the decision of the lower court;

Particulars of Error

(i) That as the lower court had failed in its duty the Court of Appeal was bound to intervene in this case and to ascribe the proper probative value to the evidence before the lower court;

(ii) That there was no basis for the dismissal of the plaintiff/appellant’s case.

That the Court of Appeal erred in law and misdirected itself in law in the following passage of its judgment:

“The plans of the parties and the evidence of arbitrations were ………………….

in his statement of claim.”

Particulars of Error and Misdirection

(i) The Court of Appeal wrongly refused to consider the effect the parties plans and the arbitration proceedings had to the case and wrongly approved of the lower court ignoring the aforesaid matters;

(ii) That the Court of Appeal failed to appreciate from the totality of the record of appeal before it that John Ndukaife Nwosu was variously referred to as John Nwosu James Nwandikaife, Nwandukaife Nwosu. Nwandukaife and Madukaife) and that he was the owner of the area of land marked ‘S’ in Exhihit ‘A’.

(iii) That the evidence of p.w.4 and p. w.5 was enough to establish the donation of land by the adjoining land owners for the construction of the access road;

(iv) That the plaintiff’s plan was in no way in conflict with his pleading;

(v) That the arbitration was pleaded by the defendant/respondent and issue was joined thereon;

That the Court of Appeal erred in law and misdirected itself in law in the passage of its judgment;

Finally, it was submitted that the learned trial judge did not resolve the conflict in the evidence of d.w.’s 3 and 5 …………………………………rightly ignored the issue.”

Particulars of Error and Misdirection

(i) There was no evidence that d.w.1 was an employee of the Awka Local Councilor Awka Local Government or that he kept any record of roads constructed or maintained by the council;

(ii) There was no basis for any presumption that the council kept records of the roads it constructed or maintained from its establishment in 1959;

(iii) There was no evidence that d.w.1. had in his possession the list of any roads constructed or maintained by the council and no such list was tendered in evidence;

(iv) That the evidence of D.W.S. 3 and 5 was in conflict with paragraph 10 of the statement of defence and besides, their evidence failed to establish the fact pleaded.

(6) That the costs awarded against the plaintiff/appellant were arbitrary, punitive and excessive as the adjournments from the 16th March, 1983 after the appeal of the plaintiff/appellant had been argued up to the 13th February, 1984 when counsel for the respondent made his reply was at the instance of the respondent;

Additional ground of appeal:

(7) That the Court of Appeal erred in law in confirming the judgment of the High Court which was null and void ab initio as it was delivered more than three months after the conclusion of evidence and final addresses in contravention of section 258(1) of the Constitution of the Federal Republic of Nigeria 1979.

Particulars of Error

(i) That by section 258(1) of the Constitution of the Federal Republic of Nigeria 1979, a court established under the Constitution was bound to deliver its judgment not later than three months after the conclusion of evidence and final addresses;

(ii) That evidence in the above case was concluded on the 8th day of April, 1981 and the final addresses were concluded on the 9th day of April, 1981;

(iii) That by section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 the High Court should have delivered its judgment in the case not later than the 9th day of July, 1981;

(iv) That the High Court delivered its judgment in the above case on the 15th December, 1981, more than eight months after the conclusion of evidence and final addresses;

Iv) That the Court of Appeal erroneously confirmed the aforesaid judgment without regard to the above mentioned statutory limitation and its judgment was therefore also null and void.”

Arising from these grounds of appeal, the question for determination are as follows:

(1) The first question for determination is a very important one and goes to the validity of the judgment delivered by the trial court and its jurisdiction to deliver the judgment. It is whether having regard to the provision of section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 the judgment of the High Court delivered on 15th day of December, 1981 is not a nullity when the evidence and addresses were concluded on the 8th day of April, 1981. A fortiori was the judgment of the Court of Appeal affirming such judgment not also a nullity.

(2) The second question for determination as formulated in the appellant’s brief reads:

‘Was the Court of Appeal right in affirming the judgment of the High Court

(i) whereas the High Court based its judgment on the evidence of D. W. 1 and on the judge’s personal observation that the road in dispute was merely a track;

(ii) whereas the learned trial judge failed to make specific findings of fact on the various issues raised in the case and failed fully and properly to evaluate and consider the whole case made by the parties;

(iii) when there was overwhelming evidence in support of the appellant’s case;

(3) The 3rd question for determination as formulated by the appellant’s counsel in appellant’s brief also read:

”was the Court of Appeal right in holding;

(i) that the learned trial judge was right in ignoring the plans of the parties and the evidence of arbitrations;

(ii) that none of the parties whom the appellant pleaded gave portions of the land for the access road gave evidence;

(iii) that the land P. W. 2 donated for the access road was not indicated in the appellant’s plan;

(iv) that it was essential that one of the donors of the land used for construction of the road in dispute must give evidence despite other evidence on the matter by the other witnesses of the appellant

(v) ignoring the portion of the evidence of D. W. 2 which supported appellant’s case

The 4th question also formulated in appellant’s brief relates to the costs awarded. It is this:

‘were the costs awarded against the appellant justified

The first issue for determination, demands an examination of the provision of section 258(1) of the Constitution of the Federal Republic of Nigeria 1979 and in the light of the constitutional provision, an examination of the proceedings before the trial court from the date of conclusion of evidence and addresses to the date of delivery of the judgment. The section, section 258(1) of the Constitution reads:

“Every court established under this Constitution shall deliver its decision in writing not later than three months after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof.”

Chief G. R. J. Egonu, SAN., dealing with this issue, submitted that the learned trial judge delivered his judgment later than three months after concussion of evidence and addresses of counsel. He referred to the date when the hearing of the evidence and addresses were concluded before the learned trial judge. This, according to the record of proceedings was the 8th day of April, 1981. Learned Senior Advocate pointed out that the judgment of the High Court was delivered by the learned trial judge on the 15th day of December, 1981 a period of over 8 months later. He then submitted that this was a violation of section 258(1) of Constitution. He then cited: Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Anor. (1984) 5 SC. 79; and

Paul Odi & Anor. v. Gbaniyi Osafile &Anor. (1985) 1 SC. 37 in support.

The respondent who was unrepresented at the oral hearing filed a brief of argument. In his brief, the respondent pointed out that the proceedings before the High Court was not brought to an end till the 9th day of November, 1981 when the High Court (Umezinwa. J.) moved to the locus in quo for inspection of the road the subject matter of the action and carried out the inspection. He contended that the period prescribed by section 258(1) of the Constitution therefore did not start to run till the day the inspection was carried out, i.e. 9th November, 1981. He then submitted that the period from 9th November, 1981 till 15th December was well within the 3 months limit set down by section 258(1) of the Constitution.

It is now well settled by the decisions of this Court that it is mandatory for a High Court and other courts established by the Constitution to deliver the judgment of the Court not later than three months from the date of conclusion of evidence and final addresses. I need only refer to:

(1) Chief Dominic Onuora Ifezue v. Livinus Mbadugha (supra)

(2) Paul Odi v. Gbaniyi Osafile (supra)

(3) Awoyele v. Ogunbiyi (1985) 2 NWLR. 547

(4) Shodipo v. Lemminkainen OY (1985) 2 NWLR. 547

where section 258(1) of the Constitution has been given judicial interpretation by this Court. In Ifezue’s case (supra), this Court held that any judgment delivered outside the 3 months is a nullity. This decision was upheld in Paul Odi’s case by the full Court of the Supreme Court.

This Court, in Sodipo’s case held that the statutory period of three months can, in certain circumstances be interrupted once it has started to run and restarted by the taking of additional proceedings in the interest of justice. A Judge can raise an issue suo motu in the interest of justice but the issue so raised must be a genuine independent issue and not a sham issue raised with a view to securing an illegal extension of time outside the Constitutional period in which to deliver judgments.

This Court followed Sodipo’s case (supra) in Awoyele’s case and dealt extensively with the meaning of final addresses. It held that a court acts within section 258(1) of the Constitution if the court invites counsel to address it on a point of law or fact within three months of adjourning for judgment from the date of an earlier address and delivers its judgment within three months of the final or last address.

The above cases dealt with situations where the final addresses concluded the proceedings before adjourning for judgment in court. The instant appeal deals with a situation where the final addresses preceded the inspection of the locus in quo which concluded the proceedings before judgment.

Inspection or view is dealt with in section 76 of the Evidence Act. It is dealt with in the second proviso to the section which reads:

“Oral evidence must in all cases be direct –

(a) …………………………………..

(b) …………………………………..

(c) …………………………………..

(d) …………………………………..

Provided that –

(i) …………………………………….

(ii) If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property the inspection of which may be material to the proper determination of the question in dispute. In the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject matter of such inspection may be and the proceedings shall continue at the place until the court further adjourns back to its original place of sitting, or to some other place of sitting, or the Court shall attend and make an inspection of the subject matter only evidence, if any, of what transpired there being given in court afterwards. In either case, the accused, if any, shall be present.” (Italics mine)

The road in dispute in this matter is an immovable property.

The provision makes it clear that it is only where the inspection is material for the proper determination of the question in dispute that the court may carry out inspection of immovable property. It is also clear that where the court attends and makes an inspection of the subject matter, evidence, if any, of what transpired at the locus in quo is expected to be given in court afterwards. Inspection can therefore be classified as forming a vital part of the proceedings before adjournment for address or judgment. It is the visual collection of evidence whether or not in confirmation or corroboration of evidence testified to. In normal cases, it should precede the conclusion of evidence and final addresses. It cannot he separated from the evidence and it partakes of the character of evidence. The event that took place at the locus ought to have been recorded in the court Record Book. However, in the instant appeal, no such record was made. The evidence that there was an inspection appears only in the judgment.

The failure of counsel to address the court after the inspection of locus in quo, in my view, amounts to a failure to exercise a right to give final addresses. It brought forward the commencement of the period prescribed by section 258(1) of the 1979 Constitution to 9th November, 1981 from a later date if further evidence and addresses had followed the inspection, the fact that the date of the judgment was fixed on the 8th April, 1981 notwithstanding.

It was within the competence and discretion of the learned trial judge to have varied the date of judgment after the inspection on the 9th day of November, 1981. Not having varied the date, it is assumed that he confirmed the date after the inspection as the inspection brought the proceedings to a close before judgment. It is, in my view, erroneous to treat the inspection as forming no part of the proceedings as the appellant’s counsel has done in his brief. This additional ground of appeal raising the constitutional issue therefore fails and I hereby dismiss it.

Turning to the other issues for determination, I find that they arise from a consideration of the facts and the evidence adduced before the learned trial judge.

The complaints before the Court of appeal which were dismissed by that Court were:

(1) That the learned trial judge failed to evaluate and consider fully and properly the case made by the parties and to make specific findings of fact on the various issues raised in the case;

(2) That the judgment was against the weight of evidence and in particular that the learned trial judge wrongly relied on the evidence of d.w.1 in dismissing the appellant’s case;

(3) That the learned trial judge failed to give effect to the arbitration by the elders.

Before this Court, learned counsel for the appellant has submitted that the Court of Appeal was wrong in affirming the judgment of the High Court and rejecting appellant’s complaint.

A reflection on the facts of the case shows, according to the appellant, that the access road in dispute was constructed in 1959 by the Awka Local Government Council at the request of the mother of the respondent for the common use of all land-owners owning properties along the access road. According to the respondent, the access road is a private road constructed by his mother. He gave money to his mother with which she bought the land through which the road passes from d. w. 3 (Nwogugha Nwako) and d. w. 5 Gabriel Akabogu.

Having regard to the pleadings of the parties and the declaration and injunction sought by the plaintiff/appellant, the burden of proof is on the plaintiff/appellant. The plaintiff can only succeed on the strength of his own case and not on the weakness of the defendant. The major issue for determination is therefore whether the appellant discharged the burden of proof or attained the standard of proof by law prescribed to entitle him to the declaration, damages and injunction claimed.

In his pleadings, the respondent joined issue with the appellant on the question of ownership of the road and whether the road was a public road or private road. This he did by denying in paragraphs 2, 3, 4, 9 and 14 of his statement of defence the facts pleaded in paragraphs 3, 4, 8 and 10 of the statement of claim. It will therefore be necessary to set out these paragraphs in this judgment for easy reference. The statement of claim in paragraphs 3, 4, 8 and 10 are as follows:

“3. The plaintiff is the owner in possession of a piece of land and the buildings thereon known as and called Chukwuogor’s compound. The said compound is situated at Umuogbunu village Awka within the court’s jurisdiction. The plaintiff was entitled and is entitled to a right of way from his said compound to Enugu Onitsha public highway and back again from the said highway to his compound through the road shown verged PINK in plan No. PO/E98/74 filed with statement of claim;

4. The said road runs from Enugu-Onitsha Road and terminates at the house or compound of the defendant. The road or way is more particularly described or delineated in Survey Plan No. P0/E98/74 made by Licensed Surveyor Mr. Pius Ndenu and filed with this statement of claim and verged PINK thereon.
5. In 1959, the Awka Local Council under the chairmanship of one Edward Nwimo with Ozo Nwokoye Nonyelu and Anonwude Obuekezie as some of the council members took over part of the lands of Nwugwu Okafor marked ‘N on the plan, James Nwandikaife marked ‘8’ on the plan; William Mogor Nwachukwu marked ‘C’ on the plan; Mr. Nwanna marked ‘A’ on the plan to create the road verged PINK on plan No. P0/E98/74 to enable defendant’s mother and others to get an access road to their houses including that of the defendant;
6. The Awka Local Council when it took over the various pieces of lands from persons mentioned in paragraph 8 above to establish the road verged pink, it assured all and sundry that the road was for everybody as it had become a council road.”

The statement of defence reads in paragraph; 2, 3, 4, 9 and 14 as follows:

“2. The defendant denies paragraph 3 of the statement of claim and puts the plaintiff to the strictest proof of all allegations of fact therein contained;

3. In further answer to paragraph 3 of the statement of claim, the defendant says that the only road leading from Enugu-Onitsha high way to the defendant’s house was constructed by the defendant’s family alone for their own use since the life time of the defendant’s mother. The plaintiff has no right of way through this particular road but has his own different access road as shown in defendant’s plan No. E/GA/l428/74 filed with this statement of defence;
4. The defendant denies paragraph 4 of the statement of claim and maintains that it is the defendant’s own private road that leads from Enugu-Onitsha Toad to his own compound as shown in defendant’s plan No. E/GA. 1428/74 made by Obianwu Licensed Surveyor and verged PINK;
5. The defendant denies paragraph 8 of the statement of claim and puts plaintiff to the strictest proof thereof. The defendant further says that Edward Nwimo and the other persons mentioned by plaintiff are plaintiff’s friends who have been helping the plaintiff to take defendant’s land by force.
6. The defendant denies paragraph 10 of the statement of claim and says that no council ever gave them road nor docs the defendant’s road belong to the council and or any other person.”

Evidence was called by both parties but the learned trial judge rejected the evidence of Plaintiff/Appellant and his witnesses. The evidence having been rejected, the proof provided by what was left fell far short of the standard required in a claim for declaration of a right and an injunction. The appellant failed to call the present council officials to testify in support of the allegation that the Awka Local Government Council owns the road. He also failed to join the Awka Local Government Council which he claims owns the road. The absence of their testimony is, in my view, fatal to the claim of the appellant. Learned counsel submitted that the learned trial judge failed to make findings of fact but contended that the evidence of D.W.1. Ambrose Eziani, influenced his judgment. He attacked the testimony of d.w.1 to the effect that the access road in dispute which he called a track was not in the list of Local Government roads in Awka town.

The appellant, it must be pointed out, whose duty it is to prove that the road in question is one of the roads belonging to the Awka Local Government did not tender evidence to prove that the said track or road is on the list of the roads owned by the Local Government. Without that testimony, the evidence of p.w.1, p.w.2 and p.w.3 is of no value to the appellant. When the learned trial judge said:

“I do not believe plaintiff and his witnesses that the road was constructed by the Awka Local Government Authority”

that amounted to a finding that the track is not one of the Local Government roads as claimed by the appellant. It is also my view that when he said:

“I am satisfied from the evidence before me that the road is a private road constructed by the defendant’s mother to enable her and her children have access from their compound to the Onitsha-Enugu road”

he made a finding that the track is a private road and that it was constructed by the defendant’s mother for the use of herself and her children. Quite apart from this, learned trial judge went on to make a categorical finding that the road is not a public road. This naturally follows that rejection of the evidence of the plaintiff and his witnesses on the point claiming the road to be a public road owned by the Awka Local Government Council.

Chief G.R.I , Egonu, SAN., spared no effort to destroy the basis of the findings of fact made by the learned trial judge and the Court of Appeal. This has been without success. The formidable body of evidence led by the respondent and his witnesses which was accepted by the learned trial judge has been left unscathed by his attacks. The relevance of the evidence of arbitration which he bitterly complained of has not been established and glimpses of it that appeared in the pleadings cannot but strengthen the position of the respondent.

It is clear therefore that there has been a concurrent finding of fact in the two courts – the Court of Appeal and the High Court – below and nothing said by the learned Senior Advocate who appeared as counsel for the appellant has persuaded me to the view that the two courts were wrong or erred in their findings of fact.

It needs to be repeated here that it is very well settled in the law of practice and procedure in force in this Court that this Court will not disturb concurrent findings made by two or more courts below unless there is error on the face of the record occasioning a miscarriage of justice.

I need only refer to a few judicial authorities embodying the declarations of this Courts. They are:

Mogo Chikwendu Mbamali (1980) 3 SC. 31

Ukpe Ibodo & Ors. v. Enarofia & Ors. (1980) 5-7 SC. 42, 55

Lokoyi v. Olojo (1983) 8 SC. 61 at 68

Ojomu v. Ajao (1983) 9 SC. 22 at 53

Onobruchere & Anor. v. Esegine & Anor. (1986) 1 NWLR (Part 19) 799 at 804

The appellant’s counsel has been unable to show any such error and without showing any error in the concurrent findings of the two courts below which has occasioned a miscarriage of justice, this Court will not disturb the findings of fact and will not hold that the road in dispute is a public road or that it was constructed by the Awka Local Government council for the use of all who live and own property along the road. On the contrary, I am satisfied that the findings made are justified by the evidence accepted by the High Court. The road in dispute being the private track of the respondent, the appellant will need only the consent and permission of the respondents to use the road.

The appeal fails. I hereby dismiss it. I affirm the decision of the Court of Appeal with costs to the respondent fixed at N300.00.

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Other Citation: (1987) LCN/2343(SC)