ENIGWE & ORS. V. AKAIGWE & ORS.

• Pages: 303-325

ENIGWE & ORS. V. AKAIGWE & ORS.

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303

ENIGWE & ORS. V. AKAIGWE & ORS.

5

10

1.

JONATHAN ENIGWE

2.

GODFREY UDOKA

3.

STEPHEN UYODO

4.

MOLOKWU ENIGWE

DEFENDANTS/APPELLANTS

5.

OYEKWELU AZIAGHA

6.

PETER UDOKA

7.

SOLOMON NWORA

8.

ALPHONSUS NDULUE

15

V.

MICHAEL AKAIGWE

PLAINTIFF/RESPONDENT

(For himself and representing

members of Akaigwe family)

V.

20

1.

MOLOKWU ENIGWE

2.

GODFREY UDOKA

PLAINTIFF/RESPONDENTS

(For themselves and on

behalf of the members of

Ezuka sub-family of

25

Umueze family of Alor)

V.

1.

KENNETH AKIGWE

2.

MICHAEL AKIGWE

3.

AMOS AKIGWE

DEFENDANTS/RESPONDENTS

30

4.

CHINWA AKIGWE

5.

AUGUSTINE AKIGWE

6.

ERIC IFEKA

APPEAL No. SC. 153/1987.

35

SUPREME COURT OF NIGERIA

UWAIS,



J.S.C.

KAWU,



J.S.C.

NNAEMEKA-AGU, J.S.C.

WALT,

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J.S.C.

40



AKPATA,



J.S.C.

28th February, 1992.

Administration of Justice -Fair trial - Need for trial judge to be seen as impartial.

Appeals - Appeal with leave - failure to obtain leave where required - Effect of - Concurrent

findings of fact - When Supreme Court will interfere.

Evidence - S.76 Evidence Act - Locus in quo - Visit thereto - Procedure applicable.

Pratice and Procedure - Consolidation of action - Conditions must he met before suits are

consolidated - When court can order.

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50

304

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

Rules of Court - Order 11 Rule 7 High Court Rules, Cap. 61 Laws of Eastern Nigeria, 1963

- Order 4 r.1011 White book 1979 - Alien rules - Whether in pari materia - When court

can order.

Rules of Court - Supreme Court - Power to raise issue suo motu - Order 8, r2(6) Supreme

5

Court Rules.

Words and Phrases - 'Nothing or little to choose between the evidence of both sides" -

Meaning of

ISSUES:

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10

1.

What is the aim of a consolidation of action?

2.

When shall a consolidation of action be ordered?

3.

Whether there is a rule which determines at what stage a trial judge can visit a

locus?

4.

What are the reasons for visiting a

locus in quo?

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15

5.

When shall the court visit a

locus in quo?

6.

What is the duty of the court at a

locus in quo?

7.

Can a trial judge

suo motu

visit a

locus in quo?

20

FACTS

-

Two actions were filed in the High Court of Onitsha. In the first suit (0/18/71)

Michael Akaigwe brought an action as a representative of the members of Akaigwe

family of Alor, Idemili Local Government of Anambra State against eight persons

from Umueze family of Alor, sued in their personal capacities. The claim was for a 25

declaration of title to a piece or parcel of land called "Okpuno Maduabuchi" said

to be situate at Umunambu Village, £100.00 damages for trespass and perpetual

injunction. In the second suit (0/133/71) Molokwu Enigwe and Godfrey Udoka

brought an action for themselves and on behalf of Ezuka sub-family of Umueze,

Alor, against the named plaintiff in suit No. 0/18/71 and five other persons. Five of

the defendants were said to be from Ebenato family and the sixth from Idenu 30

quarters of Alor. They were all sued in their personal capacities over a piece or

parcel of land called "Eziama Ogbuka Eneluwa alias Mad uabuchi" situate at Alor.

The claim was for a declaration of title, £100.00 damages for trespass, forfeiture of

a portion of the land marked X on plaintiff's plan (9C.165/71) and perpetual

injunction. The two suits were consolidated for hearing by consent of counsel on 35

both sides. The learned judge treated the two suits as cross-actions.

After final addresses on 20/7/82 the learned trial judge adjourned the case

sine

die

for judgment. It is not shown from the record that any of the parties applied for

the judge to visit the

locus in quo.

However, on 18/10/82, that is two days before

the expiration of the constitutional period of three months for the court to deliver

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40

its judgment, the learned trial judge

suo motu,

as it appears, decided to visit the

locus.

He made extensive use of the impressions he formed at the visit to the

locus

in his subsequent judgment. The learned trial judge recorded his reason for

deciding to visit the

locus

thus:—

At the close of evidence, learned counsel for both parties addressed the 45

court extensively. After considering the evidence canvassed by both

sides, I had very little to choose between the evidence of both sides. I,

therefore, decided to pay a visit to the

locus in quo

to see things for

myself;

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