Okwudu Nwakonobi & Ors. V. Benedict Udeorah & Ors (2012)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal by the plaintiff’s (now Appellants) against the judgment of the court of Appeal, Enugu Division delivered on 25/4/2002 allowing the appeal of the defendants (now the Respondents) from the decision of Amaizu (J) as he then was) sitting at Otuocha Division of the High court of Anambra state delivered on 25/9/98.

Dissatisfied with the decision of the court of Appeal, the Appellants have appealed to this court on three grounds by Notice of Appeal dated 18/7/2002 and filed on 22/7/2002.

The facts of the matter leading to this appeal are simple. Appellants commenced the action in a representative capacity against the 1st -5th respondents also in the same capacity and against the 6th respondent in his personal capacity by a writ of summon issued out at Onitsha Judicial Division of the High court of Anambra State. Upon the creation of the Otuocha Judicial Division, the suit was transferred to Otuocha and it was heard denovo by Amaizu (J) (as he then was).

Pleadings were ordered and subsequently amended severally by the parties.

The reliefs claimed by the Appellants are as follows:

“(1) Declaration of customary right of occupancy of the parcel of land known as and called “Nno Omo” situated at Ezi Umuanya village and verge pink on plan No.MEC/303/78J.

2. N10,000.00 general damage for trespass.
3. An order of injunction restraining the defendants, their servants and agents from entering or remaining on “Nno Omo” land verged pink in the plan No.MEC/303/78 or doing anything, thereon or in any manner whatsoever interfering with the plaintiff’s rights of ownership and possession over the said land.”

At the trial the Appellants called 9 witnesses while the 1st-5th Respondents called 3 witnesses. The 6th Respondent neither filed any pleadings nor did he testify or take part in the proceedings at the trial High court or in the court below. At the conclusion of evidence the learned trial Judge in his considered judgment granted the Appellants the reliefs they sought.

Aggrieved by this decision the 1st-5th respondents appealed to the court of Appeal Enugu Division. The court after a review of the issues raised by both parties allowed the appeal and held that the respondents (appellants herein) were afflicted and caught by the doctrine of estoppel by standing-by. The judgment of the trial court was set aside.

Dissatisfied the Appellants appealed to this court on grounds and distilled therefrom the following three issues:

1. Whether the learned Justices of the court below were right in holding that the appellants were afflicted and caught by the doctrine of estoppel by standing-by with respect to the land in dispute. (Ground No.1)
2. Whether the learned Justices of the court below were right in disregarding or failing to advert their minds to the unassailable findings of acts of possession and ownership made by the trial court in respect of the land dispute by the appellants. (Ground No.2)
3. Whether the learned Justices of the court below were right in their interpretation of Exhibits 16, 17 and 18 which led them to hold that the said Exhibits represent parts of the land in dispute. (Ground No.3)

The 1st – 5th Respondents raised also two similar issues except issue 3 which is dissimilar.

The issues are as follows:

i. Whether the court below was correct in holding that the Appellants are afflicted and caught by the doctrine of estoppel by standing by with respect to the land in dispute.

ii. Whether the court below failed to consider and or avert its mind to evidence of acts of possession by the Appellants at the trial court in respect to the land in dispute.