Marcus Ukaegbu V. Mark Nwololo (2009)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal by the defendants/appellants against the decision of the Court of Appeal, Port-Harcourt Division (hereinafter called “the court below”), allowing the appeal of the plaintiff/respondent and setting aside the judgment of the Imo State High Court sitting at Aboh-Mbaise and delivered by Nsofor, J. (as he then was), dismissing the plaintiff’s/respondent’s suit no. HAM/19/82 in respect of a piece or parcel of land. The court below ordered a retrial of the case before another Judge of the High Court of Imo State,

“who should visit the locus in quo to make it easy to resolve the conflict in the traditional histories of the parties in respect of the land in dispute and also to know the true position of the land in exhibit 2”,

Dissatisfied with the said decision, the appellants have appealed to this court on three (3) grounds of appeal. Without their particulars, they read as follows:

“GROUND ONE: Error in law:

The learned Justices of the Court of Appeal erred in law when they held as follows:-

“In the present case, I have no iota of doubt in my mind that the learned trial judge erred in law and misdirected himself when in spite of the conflicts in the traditional evidence offered by the parties he went ahead to prefer the testimony of the respondent’s oblivious of the test laid down in the case of KOJO Vs. BONSIE”.

GROUND TWO: Error in law:

The learned Justices of the Court of Appeal erred in law when they held that the issue of whether the land in dispute in this case is the same as that litigated upon in 1948 could only be resolved by a visit to the locus in quo.

GROUND THREE: Error in law:

The Court of Appeal erred in law in not affirming the judgment of the High Court by holding that the learned trial judge did not evaluate the evidence of the parties before dismissing the case of the plaintiff/appellant/respondent”.

The facts of the case briefly stated are that in an amended statement of claim, the respondent who sued in a representative capacity, in paragraph 13 thereof at page 36 of the records, claimed as follows:

“(a) Declaration of title that the piece of land called “ORU UHU EGBEREURI” is the property of the plaintiff.

(b) N1,000.00 (one thousand naira) being damages for trespass.