Judgment
UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): The Respondent/Plaintiff acquired the land in dispute from the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese by a Deed of Assignment dated 24/5/1997. The Respondent’s grantor acquired their interest over the land in 1975 from Nkwelle Ezunaka community and in 1983 had it surveyed and placed survey beacons EA38869 and EA388875 thereon.
Subsequent to the survey, the Respondent’s grantor (Nkwelle Ezunaka community) on 21/2/1985 executed a memorandum of confirmation of grant of land under native law with the other grantor (the Registered Trustees of the Roman Catholic Mission of Onitsha Archdiocese). Thus, the earlier grant of 1975 was confirmed in writing. The Appellants however counter-claimed that the land in dispute originally belonged to Oze community. Judgment was given in favour of the Respondent by the trial Court and affirmed by the lower Court, hence this appeal by the Appellants.
PRELIMINARY OBJECTION: There is however a preliminary objection for the dismissal of this appeal filed by the Respondent on the grounds that the Appellants did not obtain the requisite leave required to initiate this appeal contrary to Section 233(3) of the 1999 Constitution (as amended).
The Respondent’s objection is that none of the three grounds in the notice of appeal filed by the Appellants is a ground of law to enable the Appellants appeal as of Law. Thus, that the leave of this Court is needed for same to be entertained. Furthermore, he submitted that by Order 2 Rule 32 of the Supreme Court Rules, 1999 (as amended), leave to appeal concurrent findings shall be granted only in exceptional circumstances, which are not present in this appeal. He urged this appeal to be dismissed.
The Appellants’ learned counsel responded that an appeal that seeks the interpretation of Section 128(1) of the Evidence Act is certainly not an appeal on ground of fact. Similarly, that this appeal querying the failure of the lower Court to apply the principle of nemo dat quod non habet is not an issue of fact. Thus, that a ground of appeal that complains of misunderstanding by the lower Court of the law to the facts already proved or admitted is a ground of law. He relied on UMANAH V. NDIC (2016) LPELR-42556(SC). He prayed this Court to dismiss the preliminary objection.
