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 . ………………