Samuel Oguebie & Anor V. Chukwudile Odunwoke & Ors (1979)

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K. ESO, J.S.C.

This appeal first came before this Court on 8th November, 1976. Earlier on, that is on 3rd November 1976, the appellants had filed a notice of motion for leave to file and argue additional grounds to the seventeen grounds of appeal, which were originally filed with the notice of appeal. These additional grounds of appeal, and for which leave to argue was granted by the Court, are as follows:

“(xviii) The judgments of this Honorable Court in the cases mentioned in the next Ground of Appeal were given per incuriam and accordingly the decision of the lower court was not a nullity and this appeal should be entertained notwithstanding the said decisions.

In the Alternative

(xix) The trial was illegal and void as per the decision of this Honorable Court in UTTAH v. INDEPENDENCE BREWERY LTD (1974) 2 S. C. 7; OKWUOSA v. OKWUOSA (1974) 2 S. C. 13 and other cases.

Particulars of Invalidity

(a) The statement of claim was filed in “the High Court of the Republic of Biafra” and filing fees were paid on 13th December, 1967 in that court.

(b) On 20th January, 1971 when the parties appeared before the Court, no other Statement of Claim was filed and it was the one filed on 13.12.67 that was ordered to be served on the surviving defendants.

(Xx) In the reasons stated in Ground 1 (sic Ground xix) thereof the learned trial Judge misdirected himself in law and in fact in holding:

“Pleadings were filed and exchanged during the illegal regime but due to loss of documents belonging to the Court and Solicitors the case was reactivated by this Court and pleadings were exchanged afresh and hearing commenced before me as from 26/9/73. This case is therefore not caught by the judgment of the Supreme Court which regards as void the writs issued during the period of rebellion.”

On 8th November, 1976 the appeal was adjourned to 17th January, 1977 for hearing, but on that adjourned date, the appeal which came before a Court of three Judges of this Court (hereinafter referred to as “a Court of three”) was further adjourned for hearing by the full court after it had been agreed by all the learned counsel thereto, and approved by the Court, that only Grounds (xviii), (xix) and (xx), (supra) would be referred to the full Court for argument and decision.

When on 2nd May, 1978 the matter came before the full Court for argument therefore, there were, apart from Chief F.R.A. Williams, learned counsel for the Appellants and Mr. Chike Ofodile learned counsel for the Respondents, legal submissions from four amici curiae invited by the Court, to wit. Dr. Obi Okongwu, Deputy Solicitor-General of the Anambra State, Mr. B.C. Okoli, Principal State Counsel of the Imo State, Mr. T. Fubara, Acting Deputy Solicitor-General of the Rivers State and Chief T. AchiKanu, Legal Adviser representing the Cross Rivers State.

In so far as the three additional grounds of appeal, which were argued before the Court, are concerned, the following facts are relevant:

The plaintiffs filed their claim for declaration, damages for trespass and injunction in the Owerri Judicial Division of “the High Court of the Eastern Region of the Republic of Nigeria” on 5th May 1967. On the same day, the plaintiffs filed a motion, ex parte, in the same court, seeking leave “to sue the defendants in a representative capacity”. An affidavit by one of the plaintiffs and an exhibit were also filed in the same court that day.