MRS. GLADYS EZENWERE v. CHIEF K.K. OGUAMANAM (2019)

MRS. GLADYS EZENWERE v. CHIEF K.K. OGUAMANAM

(2019)LCN/13790(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of January, 2019

CA/PH/583/2008

RATIO

APPEAL: WHETHER THE COURTS WILL REGARD A DEFECT IN PARTICULARS IN A GROUNDS OF APPEAL AS A GROUND TO RENDER THE GROUND DEFECTIVE

I must state at the outset that I find no substance in the preliminary objection raised by the Cross-Respondent because as was pronounced by the Supreme Court in Oleksandr & Ors. vs. Lonestar Drilling Company Ltd. & Anor. (2015) LPELR-SC.42/2005, that: although Particulars of grounds of appeal ought to relate to their grounds, so as to elucidate and advance reasons for the complaints in the groundsand highlight the complaints against the judgment, there is now a current shift of emphasis from technical justice to substantial justice in that it is not every failure of the particulars to fill the gap in the ground of appeal by stating specific details that would render the ground so couched incompetent. Nweze, J.S.C., articulated that: This is, particularly, so where sufficient particulars can be gleaned from the ground of appeal in question and the opponent and the Court are left in no doubt as to the particulars on which the ground is founded.? He referred to Ukpong and Anor. vs. Commissioner for Finance and Economic Development and Anor. (2006) LPELR-3349 (SC), citing Hambe v. Hueze [2001] 4 NWLR (Pt.703) 372; [2001] 5 NSCQR 343, 352. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice, Dakolo and Ors. v. Dakolo and Ors. (2011) LPELR – 915 (SC). Hence, defective particulars in a ground of appeal would not, necessarily, render the ground itself incompetent, Prince Dr. B. A. Onafowokan v.Wema Bank NSCQR Vol. 45 (2011); Best (Nig.) Ltd v. Black Wood Hodge NSCQR…..PER THERESA NGOLIKA ORJI-ABADUA, J.C.A.

Before Their Lordships

THERESA NGOLIKA ORJI-ABADUAJustice of The Court of Appeal of Nigeria

ITA GEORGE MBABAJustice of The Court of Appeal of Nigeria

IBRAHIM ALI ANDENYANGTSOJustice of The Court of Appeal of Nigeria

Between

MRS. GLADYS EZENWERE
(Substituted by Order of Court dated 15/3/2018)Appellant(s)

AND

CHIEF K.K. OGUAMANAMRespondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The action before the lower Court was originally initiated by the late Chief Jeremiah Ezenwere who was substituted on the 15th March, 2018 with the present Appellant, against the present Respondent as the 2nd Defendant and the late Chief T. K. Oguamanam, as the 1st Defendant on the 20th October, 1994 before the High Court of Imo State. Pleadings were filed and exchanged by the parties which were subsequently and variously amended by them. Then, in the Further Amended Statement of Claim filed by the Plaintiff on the 28th March, 2001, he sought the reliefs thus:
?(a) The sum of N1,000,000.00 (One Million Naira) being general damages for trespass in that sometimes in 1994, the Defendants without the consent, leave or licence of the Plaintiff broke and entered the Plaintiff?s part of portion of Plot 52 Douglas Road Owerri i.e. the land in dispute and cause of action verged blue in the Plaintiff?s Amended Survey Plan No. TLD 34/94 contiguous with No. 50 Douglas Road Owerri which said land in dispute is owned by the Plaintiff and is in

exclusive possession of same and trespassed upon by the Defendants who commence the erection of a building structure.
(b) Injunction restraining the Defendants, their servants, privies, workers, howsoever from further trespass onto the land in dispute and an order directing the Defendants to remove any structure erected on the said portion of the land.”

The Defendants filed their Statement of Defence and Counter-Claim on the 24th July, 1996 and counter-claimed against the Plaintiff as follows:
?1. The 1st Defendant claims from the Plaintiff the sum of N1,000,000.00 (One Million Naira) being general damages for trespass in that sometime between 1992 and 1994, the plaintiff without the consent, leave or licence of the 1st Defendant trespassed into the portion of 1st Defendant?s land verged red on MFD/005/96 and thereon forcibly built a commercial store and a soak-away/septic tank.
2. Injunction restraining the plaintiff, his servants, agents or assigns from further acts of trespass on the 1st Defendant?s portion of the land verged red.
?3. An order of Court compelling the Plaintiff to remove all his fixtures

including the one commercial store verged blue and the soak-away/septic tank constructed on 1st Defendant?s portion of the lands verged red.?

In the judgment of the lower Court delivered on the 8th May, 2007, per Nwosu-Iheme, J., (as she then was), it was held thus:
?1. That the Defendants did not trespass on the portion given to the Plaintiff in Exhibit 1, the Consent Judgment, and so is not entitled to damages and injunction. I believe the evidence of the defendant and his witnesses on these and other material issues, and disbelieve the evidence of the Plaintiff and his witness in so far as such evidence sought to contradict the material aspects of the evidence of the Defendant and his witnesses. In the result the claim of the Plaintiff stands dismissed. The counter-claim of the Defendants succeeds in the sense that the Plaintiff trespassed on the defendant?s portion of the land shared between them in Exhibit 1. However, in view of the nature of the trespass, i.e concerning permanent structures, I shall allow the structures already erected to stand. I will also not award damages for trespass against the Plaintiff, but order

that the Plaintiff, Chief Jeremiah Ezenwere is hereby restrained by himself, his servants, privies, workers, howsoever from further trespass into the land of the Defendants. I award Ten Thousand Naira costs to the Defendants.?

The Appellant was distressed by the whole decision of the Court below excepting that portion allowing structures erected by the Plaintiff to stand which he manifested via the Notice of Appeal pivoted on five grounds of appeal that was filed on the 26th July, 2007. However, by Motion on Notice filed by the Respondent on the 5th October, 2010 which was moved on the 25th January, 2016, the Respondent was granted an extension of time to file his cross appeal against the said judgment and, in consequence of which, he filed his Notice and Ground of Cross-Appeal on the 28th January, 2016. The same was predicated on a lone ground of appeal. The record of appeal was transmitted to this Court on the 11th November, 2008. The parties filed their respective Briefs of Argument in respect of the main appeal and the cross-appeal.
?
In respect of the main appeal, the Appellant filed the Appellant?s Amended Brief of Argument on the

19th October, 2018 in which she projected four issues for determination in the like manner:
?1. Whether from the pleadings and evidence led at the trial, the Appellant established his claim on the preponderance of evidence and balance of probabilities to be entitled to the reliefs sought and in the circumstances was the Court below right holding that the Appellant?s Claim was an after thought, instead of giving judgment to the Appellant (GROUNDS 1 AND 2).
2. Whether the Court below was right during the visit at the locus without confirming by evidence on oath of places pointed out and everything else said by parties or their witnesses but instead substituted her own observations at the locus as evidence without giving the parties opportunity to hear the additional evidence and cross-examine on it and whether this act of his lordship resulted in substantial miscarriage of justice to the Plaintiff/Appellant who has complained (GROUND 4).
3. Whether the trial Court below was right in holding that the Counter Claim of the Defendants succeeds in the sense that the Plaintiff trespassed on the Defendants? portion of the land shared

between them in Exhibit 1 when the Respondent failed to establish how the Appellant trespassed on to the Respondents portion of land shared between them in Exhibit 1.
4. Did the learned trial judge properly and dispassionately evaluate, assess and consider the evidence led by the Plaintiff and whether failure to do same resulted in substantial miscarriage of justice to the Plaintiff/Appellant (GROUND 3).

The Respondent, adopted all the issues propounded by the Appellant but somewhat rephrased and then condensed them into just three issues thus:
?(1) Whether on the preponderance of evidence, the learned trial judge was right in dismissing the Plaintiff?s (now Appellant?s) case.
(2) Whether an irregularity in the procedure applied at the locus in quo can vitiate the judgment of the Court?
(3) Whether the learned trial judge was right in holding that the Defendant?s (now Respondent?s) counter claim succeeds.”

With respect to issue No. 1, learned Counsel for the Appellant, Kelechi Nwaiwu, Esq., mentioned the aspect of P.W.1?s testimony where he stated that by the judgment in

suit No. HOW/174/72, the disputed part of No.52 Douglas Road, Owerri was divided into two portions, one portion was assigned to the 1st Defendant while the other part contiguous with No. 50 Douglas Road, Owerri, to him, the Plaintiff. They then set the boundaries between the two by some demarcation marks, that even when the Plaintiff removed the boundary marks, they were replanted by Chief J. K. Nzerem, the Chairman of the Arbitration Panel. He referred to Exhibit 4, the evidence of P.W.2, the Licensed Surveyor which highlighted that the building under construction on that portion of Plot 52 Douglas Road in dispute belongs to the Defendant, which said assertion, was neither rebutted nor challenged under cross-examination, and, Exhibit 5 tendered by him, i.e. the Survey Plan. He then relied on the decisions in Adeyemi vs. Bamidele (1968) 1 All NLR page 31 at 36; Odulaja vs. Haddad (1973) 11 SC 357 at 362; NMSL vs. Afolabi (1978) 2 SC 79 at 81-82; Wiri vs. Wuche (1980) 1-2 SC 1 at 6-7 and Omeregbe vs. Lawani (1980) 3-4 SC 108 and submitted that evidence on material facts which are not contradicted under cross-examination and not rebutted,

remains unchallenged and shall be accepted by the trial Court. He stressed that the Appellant pleaded at paragraph 6 of his Further Amended Statement of Claim, and, equally proved during his unchallenged oral testimony, that he was the owner in exclusive possession of the portion of No.52 Douglas Road in dispute which was corroborated by the evidence of D.W.2. On the allegation of trespass, he referred to the pleading at paragraph 8(a) that ?in 1984, the Defendants started a building under construction occupying the entire portion of plot 52 Douglas Road, Owerri shared into two halves as per Court decision of 10/2/81 in suit No. HOW/174/72 as clearly shown and reflected in the Amended Plaintiff?s Survey Plan?. He further referred to the evidence of the Plaintiff, P.W.2, Exhibits 2, 4 and 5 and reiterated that the Appellant established his exclusive possession of the land in dispute, that he had a right to the same and had a better title over the same in the face of Exhibit 1, i.e. the judgment in suit No. HOW/174/72, that the defendants destroyed the boundary marks and the beacons and started constructing a building on both portions i.e. of the land in dispute.

He also beamed on the pleading of the Defendants at paragraph 19 where it was pleaded that ?the Nzerem Panel planted bottles on the boundary to demarcate the portion in Exhibit 1, to demarcate the two portions of land?; the marred testimony of D.W.3 under cross-examination that ?it is not true that both beacons and bottles were planted? and, a further one that ?it is not true that Chief J. K. Nzerem planted beacons and bottles? and, then emphasised that since the conflict between the evidence and pleading of D.W.3 and the inconsistencies in his evidence were not explained, the evidence ought to have been rejected. He cited the cases of Onubogu vs. The State (1974) 9 SC 308 at 365; William vs. The State (1975) 9-11 SC 139 at 148-149; Joshua vs. The Queen (1964) 1 All NLR 1 at 23 and Bank of Baroda vs. Mercantile Bank Nig. Ltd. (1987) 2 NSCC 892 at 896 in support.
?
It was further contended that the finding of the lower Court that the Appellant never tendered the Statement of Claim in suit No. HOW/174/72 as it is the way the said Exhibit 2 would have been proved to be part of Exhibit 1, was erroneous, as Exhibit 1, the

Plaintiff?s Survey Plan in suit No. HOW/174/72 was very crucial in determining the suit. He stressed that the Court should have related Exhibit 1 to Exhibit 2 by comparing those Plans than insisting that the Statement of Claim should have been tendered which even if tendered would have been of no assistance.

It was contended that the remarks of the trial Court that the Plaintiff?s case was an afterthought after placing undue weight on the evidence of D.W.2 and Exhibits 6 and 7 was a wrong finding in the light of the unchallenged expert evidence of P.W.2 that he saw the bottle and the pillar demarcating Plot 52 Douglas Road into two parts and, that the building under construction on that portion of Plot 52 Douglas Road, Owerri, belongs to the Appellant. D.W.1 did not know there was a permanent boundary mark planted on the land in dispute. He further referenced Exhibits 1 and 3, the letter written by the Appellant?s Counsel to the Respondents over their encroachment upon the portion belonging to the Appellant, and, to stop further entry into the Appellant?s portion of No. 52 Douglas Road and remove any structures already put on

the land, and, further contended that the findings on Exhibit 6 is unwarranted and cannot override the judgment in Exhibit 1 and the Report in Exhibit 4. Learned Counsel further relied on the cases of Obijuru vs. Ozims (1985) 2 NWLR Part 6 page 167, Ogundipe vs. Awe (1988) 1 NWLR Part 68 page 118 T 123; a host of others including Enang vs. Adu (1981) 11-12 SC 25; Okoye vs. Kpajie (1972) 6 SC 126, and paragraphs 13(a) and 13(b) of the Appellant?s Further Amended Statement of Claim for the N1 million general damages and injunction claimed by the Appellant, and, the unchallenged evidence of the Plaintiff that the Court shall grant him his prayers, that he had suffered damages and deprivation of the natural use of the land and to stop the Defendants from building on the land in dispute, and then urged this Court to resolve the issue in favour of the Appellant.

On issue No. 2, which touches on the visit to locus in quo, learned Counsel stressed that the trial Court, during its visit to the locus did not take the evidence of witnesses on oath with respect to the places pointed out and observations made by the parties, but rather substituted its

observations at the locus as evidence without giving the parties the opportunity to hear the additional evidence and cross-examine on it. He claimed there was no record of what transpired at the locus in quo before the Court and then submitted that by Section 127(2)(a) of the Evidence Act, where the Court orders a visit to the locus in quo, the Court shall either be adjourned to the place where the subject matter of the inspection may be and proceedings shall continue at that place until the Court further adjourns back to its original place or to some other place of sitting or the Court shall attend and make an inspection of the subject matter only, evidence if any of what transpired there being given in Court afterwards. He contended that the procedure adopted by the Court below at the locus was grossly irregular. Those who gave evidence thereat were neither sworn on oath nor by affirmation. The trial Court merely conducted an interview and then regarded the answers it obtained as evidence. He relied on the decisions in Chukwuojor vs. Obuora (1987) 3 NWLR PART 61 page 454 at 473; Aboyeji vs. Momoh (1994) 4 NWLR PART 341 page 646 at 672 paragraphs

F?H; Seismograph Services Ltd vs. Onokpasa (1972) ALL NLR (PART 1) 343; Olubode vs. Salami (1985) 2 NWLR PART 7 page 282 and Awoyegbe vs. Ogbeide (1988) 1 NWLR Part 73 page 695 and Gold vs. Evans(1951) 2 GLR 1189 and argued that the trial Court did not comply with either of the two procedures and compounded the matter by supporting some of her findings of fact with the observations it made at the locus as if they were evidence. He further submitted that since there is no record of the visit to the locus in quo and the procedure followed in the record, it is a fundamental procedural error which goes to the root of adjudication in the visit to the locus in quo. He persuaded this Court to determine this issue in favour of the Appellant.

On issue No. 3, learned Counsel stated that the evidence of P.W.1 and P.W.2 clearly showed that the Respondent exceeded his own portion into the Appellant?s portion. Also, the Respondent failed to establish how the Appellant trespassed on the Respondent?s portion of the land shared between them in Exhibit 1 but trial Court blundered by failing to show how the Appellant trespassed into the Defendant?s

portion of the land shared between them. He said that the Respondent and his witnesses failed to prove by credible evidence that the Appellant trespassed unto his portion. Rather, the Appellant and his witnesses proved on the preponderance of evidence that it was the Respondent who indeed trespassed into the Appellant?s portion of No. 52 Douglas Road, Owerri which he got after the sharing of the disputed portion of No. 52 Douglas Road, Owerri in Exhibit 1. It was further submitted that a counter-claim is a separate and independent action, that it is cross-action, therefore to succeed, the Respondent must prove the same. He then stressed that it is trite law that where a counter-claim was filed and abandoned, it ought to be struck out, therefore, the trial Court should have struck out the Respondent?s counter-claim since the Respondent failed to establish the same. He cited the cases of Dapub vs. Kolo (1993) 9 NWLR PART 317 page 254 at 270 paragraph C and 281 paragraph A; Oseyomon vs. Ojo (1977) SCNJ 365, 381 ? 382; Lawson vs Afani Construction Co. Ltd. (2002) 2 NWLR PART 752 page 585 at 622-623 in support.

Regarding issue No. 4, it was submitted, based on the decisions in Awujale vs. Odunmiyi (1986) 2 NWLR Part 24 page 626; Enigwe vs. Akaigwe (1992) NWLR PART 225 page 505 at 555 paragraphs C?D and Nwadike vs. Ibekwe (1987) 12 SC 14 at 36; (1987) NWLR (PART 67) 713 at 736, that the trial Court failed in its duty to consider the totality of the evidence led by the Appellant, for instance, Exhibit 4 confirmed the planting of a beacon and bottle marking the boundary between the Plaintiff and the Defendant over the disputed portion of No. 52 Douglas Road, Owerri, the evidence of P. W. 2, the Surveyor A.S. to what he found on the ground i.e. the bottle and the pillar demarcating Plot 52 into two parts and that the building under construction by the Defendant occupies the two ledges of No. 52 Douglas Road, and the Exhibit No. 5 were not considered by the lower Court. He urged this Court to resolve the issue in favour of the Appellant and then allow the appeal.
?
Arguing in respect of issue No. 1 projected by the Appellant, that is, ?whether on the preponderance of evidence, the learned trial Judge was right in dismissing the Plaintiff?s (now Appellant?s) case?, the

Respondent?s Counsel made reference to the parties? pleadings and evidence led, made some narrations and stated that the Plaintiff after saying in Chief that the Defendant erected a building on his portion of No. 52 Douglas Road, Owerri then lied under cross-examination. He further referred to the evidence adduced by the parties and the contents of Exhibit 7, the cases of Ogboru vs. Ibori (2006) 17 NWLR Part 1009 page 542; Ezemba vs. Ibeneme (2004) All FWLR Part 223 page 1786, per Tobi, JSC; Mafimisebi vs. Ehuwa (2007) All FWLR Part 355 and Kazeem vs. Mosaku (2007) All FWLR Part 359 page 1262 at 1274-1275 and submitted that documentary evidence is the yardstick with which to test the veracity of oral evidence. He stated that the Plaintiff carefully concealed the fact that he wrote a petition to the O.C.D.A against the Defendant and did not disclose it either in his Statement of Claim or his evidence before the Court until he was confronted with it under cross-examination. He did not also disclose that the petition was investigated by the O.C.D.A and was found to be lacking in merit. He then urged this Court to resolve this issue in Favour of the Respondent.

On issue No. 2, whether an irregularity in the procedure applied at the locus in quo can vitiate the judgment of the Court, it was submitted that the purpose of a visit to locus is to enable the Court see whether what it heard was true or false, i.e. it is for the Court to substitute the eye for the ear. He cited the cases of Nwosu vs. Mbadugha (2000) 1 NWLR Part 641 page 486; Okunrinmeta vs. Agitan (2002) 2 NWLR (2002) 2 NWLR Part 752 page 565 at 580; Shekse vs. Plankshak (2008) All FWLR Part 439 page 422 at 431-432; Enigwe vs. Akaigwe (1992) 2 NELR Part 225 page 505 at 526-526; Ogunameh vs. Adebayo (2009) All FWLR Part 467 page 188 at 205-206; Akeredolu vs. Odukoya (supra) at 154 and enumerated the procedures that must be followed during a visit to locus in quo. The visit to the locus must be in respect of evidence which the Court had heard in the Court room. A visit to the locus must not be an occasion for fresh evidence. Where fresh evidence is recorded the other side must be allowed full scale cross-examination. A Judge visiting the locus must be careful not to take fresh evidence or act on it without giving the other side the

opportunity to report it. He further submitted that the sole purpose for the visit to the locus in quo was to clear doubts as to the accuracy of the pieces of evidence given in Court, in that case, there would be no need for oath taking or cross-examination. He then stated that since the Appellant has not been able to show that the Respondent was given an opportunity which was not given, there is no miscarriage of justice and the procedure adopted at the locus would never have affected the overall evidence before the trial Court which was properly evaluated by the lower Court. He therefore urged that this issue be resolved in favour of the Respondent.

With regard to issue 3, that is, ?whether the learned trial Judge was right in holding that the Defendant?s counter-claim succeeds?, learned Counsel referred to the Respondent?s averment at paragraph 27(2)(e) of his Amended Statement of Defence and Counter-Claim that the Appellant built two commercial stores and a soak-away pit on his portion of the land shared between the parties in suit No. HOW/172/72 and his evidence therein, and argued that, that was not contested by the Appellant in his

Further Amended Statement of Claim nor during cross-examination. He made reference to the cases of S. N. Makili vs. Michael Imodu Institute For Labour Studies (2009) All FWLR Part 491 page 979 at 1011; Adesanoye vs. Adewole (2000) FWLR Part 14 page 2487; Daramola vs. A. G., Ondo State (2000) FWLR Part 6 page 997; Agidigbi vs. Agidigbi (1992) 2 NWLR Part 221 page 987 at 114; Agagu vs. Mimiko (2009) and submitted that parties are bound by their pleadings and when a party fails to traverse an averment in the pleading of the opposing party, he is deemed to have admitted the facts averred therein and that admitted facts need no evidence in proof of the same. It was further submitted that where evidence given by a party to a proceeding was not challenged by the other side who had the opportunity to do so, it is always open to the Court seized of the matter to act on such unchallenged evidence before it. He stressed that Exhibits 4 and 5 are not answers to the Respondent?s positive and direct evidence in support of his counter-claim. He urged this Court to resolve the issue in favour of the Respondent and dismiss the main appeal.

The Appellant filed his Appellant?s Amended Reply Brief of Argument and responded to the points raised by the Respondent in his Brief with some legal authorities.

I have deeply examined the issues postulated by the Appellant in the main appeal and I think it appropriate to determine issues 1, 3 and 4 together as they all relate to the evidence procured in respect of the claims before the lower Court and evaluation of the same. In doing this, I find the evidence of all the witnesses very material. The Appellant himself testified as P.W.1 and explicated that the land in dispute is part of No. 50 Douglas Road, Owerri in which he resides, that he is the owner in possession of the land in dispute. He stated the boundaries and further said that it originally belonged to IgweIgbe family that granted the land to his father under the native law and custom. His father was in exclusive possession of the land until he died and he acquired the same by inheritance after his father?s death. He mentioned suit No. HOW/174/72 he instituted against the 1st Defendant and one N. O. Ogbonna asking for a declaration of title over that piece of land situated at No. 48 and 52 Douglas Road

and in which it was opined that the small disputed part be shared into two, one part to the 1st Defendant and the other part to him. The same was divided with boundary marks. He further explained that the matter had previously been arbitrated upon by Chief J. K. Nzerem and others and that it was the decision reached by the Arbitration Panel therein that was adopted in the said suit No. HOW/174/72 as the judgment of the Court in 1994. Then in 1994, the Defendants started the build under construction on both portions of the land i.e. the 1st Defendant?s portion and his own portion. In 1996, the Defendants removed the boundary marks on the land and he also reported it to the Police. Then, Chief J. K. Nzerem replaced the boundary marks in the presence of the Defendants and the Police. His then Counsel, Amaechi Nwaiwu wrote the Defendants to stop further trespass on the land but he refused. He tendered the judgment in HOW/174/72 as Exhibit 1. Also tendered as Exhibit 2 was the Survey Plan he made in respect of the previous suit in Exhibit 1. Then the Survey Plan in respect of the present suit was identified by him and it was marked as ID 1.

He tendered as Exhibit 3 the letter his Solicitor wrote to the Defendants to stop the trespass, and, a copy of the report made to the Owerri Urban Police as Exhibit 4. He sued the Defendant when he started building on his own portion of the land, No. 52 Douglas Road and the Defendant has reached DPC level in the building on the land in dispute. He asked the Court to grant his prayers as prayed as he had suffered damages and deprivation of the natural use of the land and to stop the Defendants and their workers from building on the land.

P. W.2, the Licensed Surveyor who the Appellant engaged to survey the land gave his evidence and tendered the Plan he produced as Exhibit 5. He said he picked all the features he felt were relevant. The main features he found on the ground were the bottle and the pillar demarcating Plot 52 Douglas Road, Owerri into two parts. The building under construction was occupying the two halves of No. 52 Douglas Road. The first half of Douglas Road near Plot 50 belongs to the Plaintiff. He identified the pillar separating Plot 50 Douglas Road and Plot 52 Douglas Road. He said that the building under construction on that part of Plot 52 Douglas

Road in dispute belongs to the Defendant. Under cross-examination he said he did not state the sizes of the portions, because it was not part of the dispute and therefore not necessary. He acknowledged that what is in dispute in Exhibit No. 1 is a small portion of No. 52 Douglas Road and that the other portion belongs to the Defendant.

D. W. 1 said in his evidence that the parties are his relations and the piece of land in dispute between them is so small that it is almost insignificant. He was aware of the suit between the father of the defendant and the Plaintiff. He was the Secretary to the Arbitration Panel chaired by the late Senator J. K. Nzerem and they settled the matter between them. Their decision was reduced to writing and it was agreed that the very small piece of land should be split into two, one half to the plaintiff and the other to T. K. Oguamanam, the father of the Defendant. The major part of No. 52 was never in dispute. They visited the land in dispute and then took the boundary from the edge of the temporary structure. He said that the defendant?s house under construction before the Court made the order of injunction,

is on Oguamanam?s own portion. Under cross examination, he said he was not aware of any permanent boundary mark and that Nzerem made a report to the Police. He said that the small piece of land is on a very tiny portion of No. 52 Douglas Road. He is not aware that the Plaintiff built a soak-away on the land in dispute and it is not true that the Defendant put up a structure on the tiny portion of the land in dispute. He was not aware that the Plaintiff reported to the Police when the Defendant destroyed the boundary marks. It is not true that the Plaintiff occupied occupied both his portion and that of the Defendant. He does not know if the temporary structure is still on the land in dispute. It is true that the portion in dispute is the bonafide property of T. K. Oguamanam.

?D. W. 2, an acting Director of Town Planning said he worked at the Owerri Capital Development Authority as Assistant Chief Planning Officer about 1994 when Chief Ezenwere forwarded a Petition to the Authority. The staff of the Authority including himself investigated the allegations in the Petition. They visited the land and took measurement of the properties of the two parties to

ascertain whether Oguamanam was building on the Sanitary Lane or not. After the inspection, they asked Oguamanam to make some adjustments to ensure there was enough space which he complied with. They reached a Resolution which was reduced to writing and which they made available to the parties. He said he recorded the Resolution. After considering the objection to its admissibility, the said Resolution was received in evidence as Exhibit 6. Also, a copy of the Petition written by Chief Ezenwere was admitted as Exhibit No.7. Under cross-examination, he reaffirmed that they went on inspection based on the Petition.

?The Defendant testified as D.W.3 and gave a full account of his own version of the story, how he inherited the land from his father. His father also inherited the same piece from his own father i.e. the Defendant?s grandfather. He stated that it was after the sharing of the small portion of land into two that the Plaintiff began to encroach on his own portion of the land by erecting two commercial stores and a soak-away. His father wrote two protest letters to Chief J. K. Nzerem and the Police.

The two letters were admitted as Exhibits 8 and 9 respectively. He also tendered as Exhibit 10 the decision of Ogbako Umuonyeche Arbitration Panel in the matter between them which the Appellant accepted. Later, he wrote a Petition to OCDA complaining that he did not give him enough space in the Sanitary Lane. He confirmed the evidence of D.W.2 and identified Exhibit 6 as the contents of the decision of OCDA. He said that a visit to the place would reveal that the Appellant built two commercial stores and soak-away without his consent. He tendered the Survey Plan he made in respect of the land in dispute which was received in evidence as Exhibit 11. He claimed as per his counter-claim.

The Court below in its judgment critically appraised the evidence adduced by the parties before it thus:
?Exhibit 1 is the Consent Judgment delivered as far back as 1981 by Justice R. U. Aguta (Rtd). The said small portion was indeed shared among the Plaintiff and the father of the 1st Defendant.
?On the 31st May 1994, the Plaintiff, Jeremiah Ezenwere petitioned the Owerri Capital Development Authority (OCDA), Exhibit 7 concerning this same portion of land in dispute. Part of his Petition in Exhibit 7 read:

?GRAVE THREAT TO FAMILY LIFE. One Timothy Oguamanam of No 8 Oguamanam Street, Owerri, had earlier boasted to build a house on the Sanitary Lane and stuck to such inhuman and animalistic intention?not even minding the nearness of the Sanitary Lane to a living room ? The Sanitary Lane to build the proposed storey house has no sufficient space, and no reasonable distance to keep off my house from eminent danger of collapse
D.W.2, StevOnu in his testimony in Court on the 18/10/2006 told the Court that sometime in 1994, Chief Jeremiah Ezenwere alleged that Chief Oguamanam was building on a Sanitary Lane. That staff of the OCDA visited the scene, took measurement, and asked Chief Oguamanam to make some adjustment which he complied with. In a meeting attended by both parties, a resolution was taken Exhibit 6.
Part of Exhibit 6 dated 6/11/94 read ?No Survey beacon was identified on the site to confirm the boundaries of the property since parties are claiming different spots as the boundary of their properties.”
?DECISION: After hearing from both parties the Chairman ruled as follows:

<br< p=””
</br<

?There was no encroachment on the complainant?s property?.
?The Plaintiff in proof of his case tendered Exhibit 2, a Survey Plan said to have been used by the Plaintiff to contest the case in Suit No. HOW/174/72, Exhibit 1. I have read Exhibit 1, and no reference was made to Exhibit 2 in Exhibit 1, the Consent Judgment. Plaintiff never tendered the statement of claim in Suit No. HOW/174/72, it is the only way the said Exhibit 2 would have been proved to be part of Exhibit 1.
The Plaintiff is also required to prove specifically, the small portion of No. 52 Douglas Road, shared equally between him and the father of the Defendant by the Arbitrators, this in no small measure would enable the Court determine whether or not there was trespass.
It is pertinent to note that in the year 1994, the Plaintiff in his own writing wrote to the OCDA complaining about the Defendant, Oguamanam building on the Sanitary Lane, and the health hazard it may constitute to his (the Plaintiff?s) family. He never made mention of his portion of the land been (sic) encroached, and he never alleged trespass to his land.

Why then did the Plaintiff who made a report complaining about Sanitary Lane alone in 1994, turn round subsequently in this Suit to claim that the Defendant trespassed on his land? I will answer this question shortly.
My visit to the Locus on 15/2/2007 laid to rest any doubts as to the true position of the very small portion of land in dispute, and the very spot where the Plaintiff and the Defendant built their structures. The testimony of D.W.1, Emmanuel Chima Orji is very instructive. I say so because he was the Secretary of the Arbitration Panel that looked into the present land in dispute, and took a decision which gave rise to the Consent Judgment, Exhibit 1.
D.W.1 is a relation of both the Plaintiff, and the Defendants. He testified that after the decision of the Arbitration Panel, they felt it would be better to use cement to demarcate the boundary for the parties, but that this was never done, because cement was not easily available then. He said the Defendant did not put up a structure on the tiny portion of the land in dispute, and that it is very true that the portion now in dispute is the bona fide property of T. K. Oguamanam, the 1st Defendant.

<br< p=””
</br<

Having made the above observation, and in the absence of proof of a Survey Plan used in Exhibit 1, the Consent Judgment, the evidence of D.W.1, the Secretary of the Arbitration Panel, who gave detailed account of Exhibit 1, and the events that followed immediately after Exhibit 1, become an available, authentic and indispensable tool to be used in throwing more light on not only Exhibit 1, but as well as the events immediately after Exhibit 1. He impressed me as a credible, just and consistent witness.
Again after a thorough look at Exhibits 6 and 7, and the evidence of D.W.2 who in fact not only visited the land in dispute as far back as 1994, but also reduced their findings and decision into writing in Exhibit 6.
A careful study of Exhibits 6 and 7, along side the evidence of D.W.1, the Secretary of the Arbitration Panel, paints the picture that the Plaintiff?s subsequent claim i.e trespass which gave rise to this Suit, is an after thought, as he had earlier complained in writing about the Defendant building on the Sanitary Lane and nothing more.

In the light of the foregoing, I fund (sic) as follows:
That the Defendants did not trespass on the portion given to the Plaintiff in Exhibit 1, the Consent Judgment, and so is not entitled to damages, and injunction. I believe the evidence of the Defendant and his witnesses on these and other material issues, and disbelieve the evidence of the Plaintiff and his witness in so far as such evidence sought to contradict the material aspects of the evidence of the defendant and his witnesses. In the result, the claim of the Plaintiff stands dismissed.
The Counter Claim of the Defendants succeeds in the sense that the Plaintiff trespassed on the Defendant?s portion of the land shared between them in Exhibit 1. However, in view of the nature of the trespass, i.e. concerning permanent structures. I shall allow the structures already erected to stand. I will also not award damages for trespass against the Plaintiff, but order that the Plaintiff, Chief Jeremiah Ezenwere is hereby restrained by himself, his servants, privies, workers, howsoever from further trespass into the land of the Defendants.
I award Ten Thousand Naira Costs to the Defendants.”

I must remark that there is no valid reason in this appeal that would necessitate any interference with the judgment of the lower Court in so far as the Appellant?s case is concerned in the main appeal. The Chief J. K. Nzere Arbitration Panel found as a fact that the dispute between Jeremiah and Oguamanam is over a very small part of 52 Douglas Road, Owerri the major part of which is the undisputed bonafide property of Mr. Oguamanam. It unanimously decided that in the interest of peace, harmony and brotherliness, the small disputed part of 52 Douglas Road, Owerri should be divided equally into two, one part going to Mr. Oguamanam and the other part contiguous with 50 Douglas Road, Owerri to Mr. Jeremiah Ezenwere.

It is instructive to note that P.W.2, the Licensed Surveyor engaged by the Appellant to produce Exhibit 3, admitted in his testimony that he did not state the respective sizes of the portions. The Appellant did not state the original sizes of the two portions and the size allegedly encroached upon and occupied by Oguamanam. Both D.W.1 and D.W.2 in their respective capacities visited the land in dispute. D. W. 1 specifically stated that the portion in dispute is the bonafide property of T. K. Oguamanam.

In Exhibit 6, the Resolution reached by D.W.2 and some other staff of OCDA who interviewed the parties consequent upon the Petition presented by Jeremiah Ezenwere to the Authority, it was stated that ?after hearing the parties they ruled that there was no encroachment on the Complainant?s property?.

It is clear in the Petition dated the 22nd July, 1994 written by the Appellant and tendered as Exhibit 7 that he was complaining about a narrow Sanitary Lane. The question is ?How could it have been possible to determine if there were any trespass or interference with the Appellant?s right of ownership of that half, when he did not supply the exact measurement of each half and the size now left for him after the alleged encroachment. It is an established law that in an action for declaration of title to land, it is the plaintiff’s first duty to prove the area over which he claims with certainty and precision. See Baruwa v. Ogunsola (1938) 4 WACA 159 and Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141. Where a plaintiff fails to lead satisfactory evidence of boundaries to the land in dispute which he claims, the action must fail.

See Aboyeji v. Momoh (1994) 4 NWLR (Pt. 341) 646. In an action for declaration of title to land when the boundary is in dispute, the duty of the plaintiff is to prove by evidence the identity of the land he claims. In doing so, he must prove with certainty the boundaries of the land in dispute.?, per Tobi, JSC in Okochi vs. Animkwoi (2003) 18 NWLR Part 851 page 1. The Appellant herein failed to establish before the lower Court the precise measurement or size of the area said to have been trespassed upon by the Respondent. P.W.2 confirmed he did not take measurements of the two portions or the one encroached upon. Regarding the counter-claim of the Defendants, there was no justification whatsoever for the finding of the trial Court as the measurement or dimension of the area trespassed upon was not supplied via the evidence adduced in support of the counter-claim. Therefore issues 1 and 4 are resolved in favour of the Respondent while issue 3 is determined in favour of the Appellant.

Regarding issue 2, the Court below stated in its judgment thus: ?My visit to the Locus on 15/2/2007 laid to rest any doubts as to the true position of the very small portion of land

in dispute, and the very spot where the Plaintiff and the Defendant built their structures.? However, how the said visit laid to rest the fact stated by the trial Court was not displayed in its judgment or was it depicted how it arrived at that conclusion. It is an established law that a Judge when conducting a visit to the locus must avoid putting himself in a position where he becomes a witness in the case. He must not treat his perception at the scene as a finding of fact without evidence for such perception being given by a witness, either at the locus or later in Court after the inspection. See Shekse vs. Plankhak (2008) 7 SC 178 at 189-191 and Seismograph Service Ltd vs. Onokpasa (1974) 6 SC 119. In Aboyeji vs. Momoh (1994) 4 NWLR Part 341 page 646, the Supreme Court, per Ogwuegbu, J.S.C., held that Section 77(d)(ii) of the Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990 laid down two procedures for visit to locus in quo: (a) The Court may adjourn to the locus and continue sitting there in the normal way by hearing and taking evidence of witnesses or (b) The Court may just move to the locus to inspect the subject matter in dispute and

return to the Court room for evidence. The case of Awoyegbe vs. Ogbeide where the trial Judge made a statement in his judgment that did not represent the correct account of what occurred at the visit as no witness gave that evidence, was referenced therein in which Oputa, J.S.C., said: ?In effect what true trial Judge had done was to treat his view of the locus as ?findings? in the case.? Oputa, J.S.C., re-echoed the warning in Ejidike vs. Obiora (1951) 13 WACA 270 at where Sir John Verity Ag. President of the West Africa Court of Appeal said: ?In all cases in which a visit is paid by the Court to the locus in quo in a civil action (and likewise in a criminal case) the Judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based upon his personal observations of there is no evidence upon the record. When there is conflicting evidence as to physical facts,..he may use his own observations to resolve the conflict,..but it is not open to him to substitute the result of his observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any

testimony on oath as to the existence of the facts he has observed. Should he do so, he would be usurping the position of the witness.?
In the instant appeal, it is clear that the Court below did not comply with either of the two procedures but somewhat supported its finding of fact with its observations at the locus in quo as if they were evidence. The observation is not evidence and can never take the place of evidence. There must be evidence of that perception being given by a witness either at the locus or later in Court after the inspection.

I must state that though the procedure adopted by the Court below is improper, it still does not entitle the Appellant to the reliefs sought since he had already failed to prove his case. Nevertheless, I partly allow this appeal on the footing of issues Nos. 2 and 3 only. Consequently, the judgment of the lower Court that ?The Counter Claim of the Defendants succeeds in the sense that the Plaintiff trespassed on the Defendant?s portion of the land shared between them in Exhibit 1? is hereby set aside for lack of proof. However, on the basis of issues 1 and 4, I find no merit in the part of

the main appeal relating to the Appellant?s claim before the lower Court.That aspect is dismissed by me with no order as to costs.

Then, in respect of the cross-appeal, the lone issue submitted by the Cross-Appellant in his Amended Cross-Appellants Brief of Argument is, whether the learned trial Judge was right in refusing to award damages and an order compelling the Plaintiff remove his structures from the defendants land having found as fact that the Plaintiff trespassed into the Defendants land. Learned Counsel referred to the lower Courts remark at page 361 of the record of appeal and submitted that there is evidence to support the Court?s finding at page 333 of the record which the Plaintiff did not contradict by a counter evidence. He said that by the assessment made by the trial Court at the locus, it means that the land in issue belongs to the Defendant and that the Plaintiff?s act amounted to trespass. He referenced the cases of Ndukuba vs. Izundu (2007) 1 NWLR Part 1016 page 432; Okoko vs. Dakolo (2006) 14 NWLR Part 1000 page 401; Oyadeji vs. Adenle (1993) 9 NWLR Part 316 page 224;

Yakubu vs. Impresit Bakolori Plc. (2011) 6 NWLR 1244 without citing the page; Ogunyombo vs. Ookoya (2002) 16 NWLR Part 793 page 224 and Yakubu vs. Impresit Bakolori Plc. (supra) and submitted that trespass is rooted in a right to exclusive possession of the land allegedly trespassed upon and it is actionable at the instance of the person in possession, therefore, once the Court finds that the plaintiff trespassed into the defendant?s land, the Court is under an obligation in law to award the reliefs sought including damages. He then stressed that the Respondent/Cross-Appellant is, as a matter of law, entitled to an order compelling the Plaintiff to remove the structures on the land and damages in addition to the order of injunction. He urged this Court to resolve the issue in favour of the Cross-Appellant.

In the Cross-Respondents Brief of Argument, a preliminary objection was raised against the cross-appeal on the ground that the particulars of error of the sole ground of the cross-appeal at paragraphs (a) and (b) contain narratives while (c) and (d) contain arguments and are therefore, incompetent.

Also, that paragraph 4 of the grounds of cross-appeal is unclear as to the exact relief sought in view of the cross-appeal. He argued that the narratives in the said Particulars of Error offend the provisions Order 6 Rule (1) and (3) of the Court of Appeal Rules, 2011 which requires that the Notice and Grounds of Appeal shall state the nature of the exact relief sought. He cited the case of Jimoh vs. Starco (Nig.) Ltd. (1998) 7 NWLR Part 558 page 523 at 531 and urged that they be designated as incompetent. He pointed out that by the Cross-Appellant?s prayer that this Court should grant the Defendant/Cross-Appellant?s counter-claim, the sole ground of the cross-appeal and the issue distilled therefrom are incompetent as it is unclear what this Court is being urged to do. He further cited the case of Ebokam vs. Ekwenibe & Sons (1993) 6 NWLR Part 297 page 108 at 119 and persuaded that the Notice of Cross-Appeal be struck out.

The Cross-Appellant filed his Reply to the Preliminary Objection filed by the Cross-Respondent and submitted that the Particulars of Error and the sole ground of the cross-appeal do not offend the provisions of the Rules of this Court as argued by the

Cross-Respondent and that this Court is entitled to look at the ground itself to ascertain whether it is arguable since no specific objection was raised against the ground. He stated that the relief sought by the Cross-Appellant is clear and germane in the light of the trial Court?s holding that the Plaintiff trespassed on the Defendant?s land and yet failed to award damages for the said trespass and make a mandatory order for the removal of the structure constituting the trespass notwithstanding that both claims for damages and removal of the structures are parts of the of the counter-claim. He referred to the Book on Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo, SAN and further urged this Court to allow the cross-appeal.

and highlight the complaints against the judgment, there is now a current shift of emphasis from technical justice to substantial justice in that it is not every failure of the particulars to fill the gap in the ground of appeal by stating specific details that would render the ground so couched incompetent. Nweze, J.S.C., articulated that: This is, particularly, so where sufficient particulars can be gleaned from the ground of appeal in question and the opponent and the Court are left in no doubt as to the particulars on which the ground is founded.? He referred to Ukpong and Anor. vs. Commissioner for Finance and Economic Development and Anor. (2006) LPELR-3349 (SC), citing Hambe v. Hueze [2001] 4 NWLR (Pt.703) 372; [2001] 5 NSCQR 343, 352. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice, Dakolo and Ors. v. Dakolo and Ors. (2011) LPELR – 915 (SC). Hence, defective particulars in a ground of appeal would not, necessarily, render the ground itself incompetent, Prince Dr. B. A. Onafowokan v.Wema Bank NSCQR Vol. 45 (2011); Best (Nig.) Ltd v. Black Wood Hodge NSCQR

Vol. 45 (2011); Abe v. UNILORIN (2013) LPELR. Put differently, since the essence of particulars of error in law is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the grounds from which they flow, NNB Plc. vs Imonikhe [2002] 5 NWLR (Pt.760) 241, 310; D. Stephens Ind. Ltd. and Anor. vs. BCCI Inter (Nig.) Ltd (1999) 11 NWLR (Pt. 625) 29, 3101. In my view, therefore, the erstwhile technistic approach [exemplified in the objector’s submissions herein] which invalidated appeals on account of defective particulars, Nwadike vs. Ibekwe [1987] 7 NWLR (Pt. 67) 718; Anosike Building Commercial Coy vs. FCDA [1994] 8 NWLR (Pt.363) 421; Nteogwuija vs. Ikuru [1998] 10 NWLR (Pt.569) 267, must be deemed to have yielded its place to the current libertarian attitude: an attitude shaped by the contemporary shift from technicalities to substantial justice. Clear evidence of this shift could be found in Aderounmu vs. Olowu [2000] 4 NWLR (Pt. 652) 253; Hambe vs. Hueze (supra); Abe vs. Unilorin (2013) LPELR- 20643 (SC); Onafowokan and Ors vs. Wema Bank Plc. and Ors NSCQLR Vol. 45 (2011) 181 SC; Best (Nigeria) Ltd v. Black Wood Hodge (Nigeria) Ltd and others NSCQLR Vol. 45 (2011) 849.”

This was further illuminated by Peter-Odili, J.S.C., thus: ?Clearly perusing the said particulars of the said Ground 2, there is verbosity, inelegance, even a degree of untidiness not to talk of a showcase of repetitiveness leading to their being properly classified as argumentative. However, such presentations cannot be used for punitive measure of a striking out of the Ground 2 as it would mean visiting the error or inelegance of counsel on a hapless litigant. In this, I rely on Osasona v Ajayi (2004) 14 NWLR (Pt. 894) 527; Diamond Bank Ltd v Partnership Invest Co. Ltd & Anor. (2009) 18 NWLR (Pt. 1172) 67 at 88; My learned brother Nweze JSC had in Omisore vs. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 257 with illumination stated thus:- The answer to the objectors’ invitation is predictable. The current mood of this Court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to grounds of appeal with the fastidious details prescribed by the rules of this Court that would render such as incompetent.

That is, particularly, so where sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded, Ukpong & Anor. v. Commissioner for Finance and Economic Development & Anor. (2006) LPELR – 3349, 19 NWLR (Pt. 1013) 187; citing Hambe vs. Hueze (2001) 4 NWLR (Pt. 703) 372;…….. Even then, Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Dakolo & Ors v Dakolo & Ors. (2011) LPELR – 915; (2011) 16 NWLR (Pt. 1272) 22. Hence… bad or defective particulars in ground of appeal would not, necessarily, render the ground itself incompetent.” In an earlier decision of this Court in Dakolo v Dakolo (2011) 16 NWLR (Part. 1272) 22 at 53, Adekeye, J.S.C., had stated the position of the Court in the following words:- “Grounds of appeal are to be differentiated from their particulars. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the Appellant his right of appeal when on the face of the ground of appeal notable issue arises for

consideration by the Court….. the principal duty of the Court is to do justice. The grounds of appeal and the particulars in the instant appeal might appear to be argumentative and repetitive; they equally raised triable issues which would sustain the appeal”. The Respondents’ preliminary objection was therefore overruled and struck out. In support of Adekeye JSC is the dictum of Galadima JSC in the same Dakolo (supra) pages 58-59 as follows:- “The Supreme Court will always make the best that it can, out of a bad or inelegant ground or brief, in the interest of justice. In the instant case although, the grounds were inelegantly couched and prolix, the substances of the Appellants’ complaints were clear, and were against the ratio of the judgment of the Court of Appeal.”
This Court, per Nimpar, J.C.A., in Olubukola & Anor vs. A.G., Lagos State & Ors. (2016) LPELR-CA/L/388/2013 propounded that:” It is trite that there is no rigid rule on how particulars of error should be couched, it is also trite that grounds of appeal can stand on their own as long as they represent the complaint of the Appellant against the judgment.

This was reiterated in the case of PROF. E. A. ABE v UNIVERSITY OF ILORIN & ANOR (2013) LPELR – 20643 (SC) thus: “Learned Counsel may be reminded that grounds of appeal may stand on their own once they represent an appellant’s complaint against the decision he is not satisfied with and in respect of which grouse he seeks the appellate Court’s intervention. Lack of or defective particulars in a ground of appeal would not necessarily render the ground itself incompetent ” See also BEST (NIG) LTD v BLACK WOOD HODGE (NIG) LTD & 2 ORS (2011) NSCQLR VOL. 45 849. Again this Court in the case of BOBI V. AKPODIETE & ORS (2013) LPELR – 21036(CA) held thus: “There is no doubt that there were repetitions in the particulars of the grounds of appeal which made them prolix and appear argumentative however, they effectively convey the precise complaint of the appellant against the judgment of the trial Court.” The essence of the particulars is to set out aspects of the judgment appealed against that the Appellant is not happy about. The apex Court explained it in the case of DAKOLO v DAKOLO (2011) LPELR – 915 (SC) in the following words: “Grounds of appeal are to be differentiated from their

particulars – while the grounds of appeal must clearly state what the Appellant is complaining about, whereas the essence of the particulars of a ground of appeal is to set out briefly the aspect of the substantive law or procedural law that is affected by the error or misdirection identified or complained of in the ground of appeal. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal notable issues arises for consideration by the Court.” It is therefore necessary that a Court should act in the interest of justice when faced with such inelegantly or badly drafted grounds and particulars of error. See OWNER OF MV ARABELLA v. NIG. AGRICULTURAL INS. CORP (2008) 4 – 5 SC (PT.II) 189.”
Further, in considering the contention that paragraph 4 of the grounds of cross-appeal is unclear as to the exact relief sought in view of the cross-appeal, this Court shall have recourse to the Supreme Court decision in Katto vs. C.B.N (1991) LPELR-SC.159/1989 where dealing with the issue

?whether the exact relief sought must be stated in the Notice of Appeal, the apex Court held that: “While it is desirable that the exact relief sought be stated in the Notice of Appeal so that the Court may be guided in making its order at the conclusion of the appeal, an appeal which is valid in other respects will not be dismissed or struck out merely because the relief sought is not inserted in the Notice of Appeal. Whether an appeal will be dismissed or allowed or struck out or the case remitted for retrial depends in the main on the nature of the complaints projected by the grounds of appeal and the merit or demerit of the complaints. In effect the order to be made is dictated by the outcome of the appeal, that is, whether it succeeds or fails.” Per Akpata, J.S.C.
It is therefore clear that whether particulars of error are argumentative, repetitious, inelegantly couched, etcetera, as argued by the Cross-Respondent?s Counsel, they cannot void or render incompetent a ground of appeal. There is no merit in the preliminary objection raised by the Cross-Respondent. Based on the foregoing, the Cross-Respondent?s preliminary objection will be and is hereby overruled.

Dealing with the cross-appeal, learned Counsel for the Cross-Respondent submitted that there was no basis for finding that the counter-claim succeeds, therefore, the Cross-Appellant cannot argue that they are entitled to the grant of any reliefs whatsoever. He urged this Court to dismiss the cross-appeal.

Having carefully considered the lone issue in this cross-appeal, it is my candid opinion that this cross-appeal itself is also infected with the same virus as some of the issues in the main appeal. The extent of the small portion in dispute that was allegedly encroached upon was not proved. In D.W.2?s testimony, he was quite vocal that after they inspected the place, they asked the Defendant to make some adjustment to ensure there was enough space and he complied. There was no minutest suggestion on the part of D.W.2 that the Appellant trespassed on the Defendant?s portion of the small Sanitary Lane. Not even D.W.1 muted it let alone stating it. D.W.1 said that he was not aware the Plaintiff built a soak-away on the land and that it is not true that the Plaintiff occupied both his own portion and that of the Defendant, so how the Court below arrived at

the conclusion that the Plaintiff trespassed on the Defendant?s portion of the land is unfathomable. There was no shred of evidence before the lower Court alluding to that. Having partly allowed the main appeal in this respect, and, set aside the judgment of the lower Court as it relates to the counter-claim of the Respondents, I also find the cross-appeal unmeritorious and hereby dismiss the same. I make no order as to cost.

ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusion of my Lord, T.N. ORJI-ABADUA JCA, that this appeal and the cross appeal lack merit and should be dismissed, apart from the issues 2 and 3 relating to the claim of trespass alleged by the counter claimant, and the decision of the trial Court thereon is set aside.

I too dismiss the appeal and the cross appeal and abide by the orders therein.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother Hon. Justice Theresa Ngolika Orji Abadua, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.

Appearances:

Kelechi Nwaiwu, Esq. with him, Iroegbu, Esq.For Appellant(s)

C.C. Esq. with him, Onyekanne, Esq.For Respondent(s)

Appearances

Kelechi Nwaiwu, Esq. with him, Iroegbu, Esq.For Appellant

AND

C.C. Esq. with him, Onyekanne, Esq.For Respondent