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  • 2002-08-12
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Obi v. Mbionwu

UGORJI OBI

CHRISTIAN UKAMBA

ELEBEKE MMUOMARA

SIMON OBIDIEGWU

OBIALO AHIKOBO

( For themselves and as representing

their Akokwa Community)

V

DANIEL MBIONWU

PETER UME

FIDELIS EZEANOWAI

( For themselves and on behalf of the

people of Osina Community Orlu)

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

ABUBAKAR BASHIR WALI, JSC

IDRIS LEGBO KUTIGI, JSC

ANTHONY IKECHUKWU IGUH, JSC ( Read the Lead Judgment )

EMMANUEL OLAYINKA AYOOLA, JSC

SC.14/1997

FRIDAY, 14TH JUNE, 2002

APPEAL - Court of Appeal - Discretion of to order retrial - Whether Supreme Court will interfere therewith

COURT - Appellate court - When same will order retrial

COURT - Court of Appeal - Discretion of to order retrial - Whether Supreme Court will interfere therewith

COURT - Locus in quo - Inspection thereto - Purpose of - Whether court is bound to record full notes of such inspection

COURT - Locus in quo - Visit thereto - Determination of - Whether within discretion of trial court

COURT - Locus in quo - Visit thereto - Duty of Judges thereafter not to put a view or personal observation in place of the evidence

COURT - Visit to locus in quo - Determination of - Whether within discretion of trial court

JUDICIARY - Judges - Duty of after visit to locus in quo not to put a view or personal observation in place of the evidence

JUDGMENT AND ORDERS - Retrial - When will be ordered by appellate court

LAND LAW - Claim for declaration of boundary between two areas of land  Treating same as claim for declaration of title to a parcel of land Effect thereof

LAND LAW - Locus in quo - Inspection thereof - Whether necessary in all land disputes

Issues:

1.            Whether the Court of Appeal was right by holding that the learned trial Judge in his approach to the trial misconceived the case before him by his repeated reference to “land in dispute” as if the claim before the court was that of declaration of title to a specific piece or parcel of land in dispute between the parties when the claim before him was simply that of declaration that the “ekpe” trench is the boundary between the parties.

2.            Whether the Court of Appeal was right when it held that the learned trial Judge did not properly evaluate the evidence before him relating to the main fact in issue; namely, whether or not the ancient “ekpe” trench is the boundary between two parties.

3.            Whether the decision for a retrial of the case ordered by the Court of Appeal is justifiable having regard to all the circumstances of the case.

Facts:

The plaintiffs and the defendants herein are two neighbouring communities sharing a common boundary in the Ideato Local Government Area of Imo State.

The plaintiffs, for themselves and on behalf of the people of Osina Community instituted an action against the defendant also in a representative capacity for a declaration that the “Ekpe” - an ancient trench is the boundary between the two communities and an injunction restraining the defendants and the people of Akokwa from crossing the said concurrent boundary and laying claim to land on Osina side of “Ekpe ditch”.  During trial, the trial court paid a visit to the locus in quo and at the conclusion of trial, the trial court dismissed the plaintiffs’ suit.

Dissatisfied, the plaintiffs appealed to the Court of Appeal.  The Court of Appeal allowed the appeal and set aside the judgment and orders of the trial court and further directed that the suit be tried de novo before another Judge.  The Court of Appeal further ordered that the learned trial Judge must, and should visit the locus in quo in order to have a thorough approval of what is actually in dispute between the parties.

Aggrieved by the Court of Appeal’s decision, both parties appealed to the Supreme Court.