Opufaa Smithers Briggs V. Abigail Everett William Briggs (1992)

LawGlobal-Hub Lead Judgment Report

O. BABALAKIN, J.S.C. 

This is an appeal against the judgment of the Court of Appeal, Enugu Division dated the 22nd day of July, 1986 dismissing the defendant/appellant’s appeal against the judgment of Port Harcourt High Court delivered on 12th of December, 1974.

The facts and background of the case are that the Respondent as Plaintiff in the Port Harcourt High Court took action against the appellant as defendant for the following reliefs:

“(i) 3500 damages for trespass committed by the Defendant on the Plaintiff’s land which was the subject matter in the Kalabari Native Court Civil Suit No. 108/1961, Degema Magistrate’s Court Appeal Suit No. D/7, A/61 and in the Port Harcourt High Court Appeal Suit No. P/9.N1964.

(ii) A perpetual injunction restraining the Defendant, his agents and or servants from committing any further trespass on the said land.”

In the Port Harcourt High Court pleadings were ordered, filed and exchanged. After reviewing the evidence led by the two parties the learned trial Judge on 12th December, 1974 gave judgment in favour, of the plaintiff/respondent for N400.00 as damages for trespass and ordered that the defendant/appellant be restrained from entering the land of the plaintiff/respondent clearly demarcated on their plan Exh. K. from henceforth.

Dissatisfied with this judgment the defendant/appellant appealed to the Court of Appeal, Enugu Division where on 22nd day of July, 1986 his appeal was dismissed and the judgment of Port Harcourt High Court was confirmed.

Still dissatisfied with this judgment the defendant/appellant has further appealed to this court.

In this court briefs of arguments were filed and exchanged. In the brief of argument filed on behalf of the defendant/appellant the following issues for determination were formulated:

“(i) Is the Court of Appeal right to hold that the statement of a Judge in a “solemn” judgment must be taken as correct of what happened and therefore final, in relation to a visit to the locus in quo, even where there was no evidence from the Respondent on the observations of the Judge

(ii) Is the Court of Appeal right to hold that because the trial Court saw and heard the witnesses and visited the locus in quo, the Plan Exhibit K correctly portrays the Plaintiff’s case and that Exhibit L distorts the picture

(iii) Is the Court of Appeal right to hold that judgment in Native Court Suit 108/61 Exhibit A delivered on 10/6/61 was later in time to Exhibit G delivered on 8/11/63.”

The Respondent formulated the following issues for determination in the Respondent’s Brief:-

“1. Whether the procedure adopted by the trial court during and after the visit to the locus in quo amounted to a departure from established procedure and occasioned a miscarriage of justice.