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Adike v. Obiareri

LOIS ADIKE

V

PATRICIA OBIARERI

COURT OF APPEAL

( ENUGU DIVISION )

JUSTIN THOMPSON AKPABIO, JCA ( Presided )

EUGENE CHUCWUEMEKA UBAEZONU, JCA

SULE AREMU OLAGUNJU, JCA ( Read the Lead Judgment )

CA/E/168/99

MONDAY, 10 TH DECEMBER,  2001

APPEAL - ‘Issue for determination’ - Meaning of

APPEAL - ‘Issues’ - Definition of

APPEAL - Brief - Bad or faulty brief - Effect of

APPEAL - Ground of appeal - Issue for determination - Constituent of

APPEAL - Ground of appeal - Preliminary objection thereto - Whether can be raised under Order 3 rule 15 of Court of Appeal Rules 1981

APPEAL - Issues - Formulation of - Purpose

COURT - Damages awarded by trial court - Circumstances when appellate court will interfere

COURT - Trial Judge - Function of

DAMAGES - Award of damages by trial court - When appellate court will interfere therewith

DOCUMENT - Content of document - Whether oral evidence can be admitted to alter written document or to cure defects therein

EVIDENCE - Admissibility - Whether oral evidence can be admitted to alter written document or to cure defects therein

EVIDENCE - Proof - Admitted facts - Whether requires further proof

EVIDENCE - Proof - Failure to prove material facts at trial court - Whether can be cured on appeal by counsel’s address

EVIDENCE - Withheld evidence - Presumption of against party withholding it LAND LAW - ‘Trespass’ - Meaning of

LAND LAW - Proof of title - Purchase receipt - Whether constitutes a valid proof of sale of land

LAND LAW - Title to land - When a purchase receipt constitutes a valid proof of

LAND LAW - Title to land - Where two purchasers bought from a common vendor

LEGAL PRACTITIONER - Duty of lay all cards on the table to assure sober adjudication

PLEADINGS - ‘Joining issue’ - Meaning of

PLEADINGS - Statement of claim - Averment therein - Whether general traverse is a good denial of

PRACTICE AND PROCEDURE -Party to a suit - Whether compulsory for

to testify in his case

STATUTE - Evidence Act, section 149(d) thereof - Whether a withheld evidence is presumed against a party thereunder

WORDS AND PHRASES - ‘Issue for determination’ - Meaning of

WORDS AND PHRASES - ‘Issues’ - Definition of

WORDS AND PHRASES - ‘Trespass’ - Meaning of

WORDS AND PHRASES - ‘Joining issue’ - Meaning of

Issues:

1.            Whether the respondent’s grantor established his title to the land in dispute

2.            Whether there is a clear identification of the land in dispute by the respondent qua the plaintiff at the court below.

3.            Whether the learned trial Judge made the correct findings on how the land in dispute was acquired, who are the appellant’s grantors and the vesting date on the appellant’s deed of lease.

4.            Whether the conclusion that the appellant is a trespasser is justified and whether the quantum of damages was based on the correct principle:

Facts:

The plaintiff/respondent filed an action against the defendant/appellant at the Anambra State High Court, sitting at Onitsha, seeking declaratory relief, damages and injunction in respect of the disputed land.

The land in dispute was acquired on 1/6/77 by one Raphael Mgbemena from Umuonu family of Ire Village in Obosi in accordance with Obosi native law and custom. The grant was subsequently covered by a written agreement.

The highlight of the controversy between the parties are that they are both claiming ownership of the same piece of land sold to each of them at different times by the same vendor, Raphael Mgbemena. The plaintiff and defendant contacted the Umuonu family, sought and obtained its approval on the strength of which each party obtained different customary right of occupancy from the same local government.

During hearing, the plaintiff called six witnesses including herself while the defendant did not testify but called three witness. After the conclusion of hearing and written addresses of counsel, the learned trial Judge granted all the reliefs sought by the plaintiff/respondent having found from the pleadings and the evidence of the parties that the plot of land sold to the defendant/appellant was different from the one sold to the plaintiff.

Being dissatisfied with the said judgment, the defendant/appellant brought this appeal formulating fourteen issues for determination of the appeal. The Court of Appeal in its wisdom condensed the formulated issues to four: whereby the Court of Appeal is called upon to determine inter alia whether there is a clear identification of the land in dispute by the plaintiff/ respondent at the court below.