S. O. Okonkwo & Anor V. Obi T.n. Adigwu (1985)

LawGlobal-Hub Lead Judgment Report

KAWU, J.S.C.

In the Asaba Judicial Division of the High Court of Bendel State, the respondent in this appeal (who had since died but substituted by the Order of the Court of Appeal by his son, Felix Aninye Adigwu) as plaintiff, instituted an action against the appellants, claiming:

“(a) Declaration that the plaintiff is the owner of a parcel of land situated at Umuojife land Asaba which piece or parcel of land shall be particularly delineated in a plan to be filed later. Annual value of the land is N20.00 (Twenty Naira);

(b) N800.00 (Eight hundred Naira) damages for trespass in that on or about the 14th day of August, 1974, the defendants and/or their servants and agents broke and entered the piece or parcel of land of the plaintiff without permission or consent of the plaintiff (c) Injunction restraining the defendants, their servants and/or agents from further acts of trespass on the said piece or parcel of land.”

A plan of the land in dispute was filed by the plaintiff along with his statement of claim. It is plan No. PO/MN3/74 which is Exhibit ‘A’. In the course of trial, however, it became plain that in fact there was no dispute regarding the piece of land marked A in the plan and the plaintiff’s claim with regard to that piece of land was accordingly withdrawn.

The respondent’s case was that in 1957, he bought the parcel of land marked ‘B’ in exhibit ‘A’ from the 2nd appellant for the sum of pounds 135; that In the presence of some witnesses, he paid the purchase price for which a receipt (exhibit ‘E’) was issued by the 2nd appellant, and that an agreement (exhibit ‘C’) evidencing the transaction between him and the 2nd appellant was also executed. It was also his case that immediately after the transaction he took possession of the said land and remained in possession up to August, 1974 when the 1st appellant, who claimed to have bought the same parcel of land from the 2nd appellant, went on the land and committed the acts of trespass complained of. The defence of the 1st appellant was that he bought the land in dispute from the 2nd appellant in 1974 for the sum of N520.00 and that a Deed of Conveyance, which is exhibit G, was executed in his favour by the 2nd appellant. He said that he did not know that the same land had been sold to the respondent.

The 2nd appellant admitted that in 1957 he sold a parcel of land to the respondent. He, however, maintained that the land he sold to the respondent was different from the one the respondent claimed he had bought from him. He said that the land he sold to the respondent was situated along Abuta road and not along the Asaba-Benin road (now called Nnebisi road) as claimed by the respondent.

At the hearing of the case, both parties testified and called witnesses to prove the averments made in their respective pleadings. In a well considered judgment, the learned judge, Ogbobine, J. came to the conclusion that on the evidence before him, the respondent had proved his case and so judgment was given in his favour.

Being aggrieved by the decision of the trial court, the appellants appealed against the decision to the Court of Appeal on diverse grounds, both law and facts, but as no substance was found in any of the grounds argued, their appeal was dismissed and the decision of the trial court upheld. Still not satisfied, they have appealed further to this Court on four grounds of appeal.

The first ground of appeal reads as follows:

“Misdirection: The learned Justices of the Federal Court of Appeal misdirected themselves in fact and in law by holding that when the trial judge indicated that he would further inspect the locus but the record of proceedings did not show whether or not he did so, the presumption in law must be that he deemed the further inspection unnecessary.”

As particulars of the misdirection in this ground of appeal, reference was made to a passage in the judgment of the court below to the effect that the trial judge must have been satisfied with the evidence before him regarding the exact location of the land in dispute and that was why, he, the trial judge, abandoned the idea of revisiting the locus.

The main submission in this ground of appeal was that the learned trial judge was not satisfied with the evidence before him regarding the identity of the land in dispute and that was why he proposed a further visit to the locus.

Now the question is: were the Justices of the Court below right in their view that there was evidence which satisfied the learned trial judge with regard to the location of the land in dispute, which made it unnecessary for the trial judge to revisit the locus