Gbaniyi Osafile & Anor V. Paul Odi & Anor (1990)

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NNAEMEKA-AGU, J.S.C.

There are two separate appeals in this case each supported with its separate set of briefs. The first raises a somewhat novel issue as to the value, if at all, of a judgment, which has been declared null and void. The second challenges the judgment of the Court of Appeal, Benin Division on the re-hearing on the merits of the case.

Because of the novelty and importance of the points raised in the first set of briefs, we decided to take that appeal first and, if our conclusions thereon still so warrant, to take the second appeal. In my statement of facts therefore I wish to try as much as possible to limit myself to those facts of the case which are sufficient to give meaning to the issues in contention in the first appeal.

The case itself started in 1969 in the High Court of Asaba Judicial Division of the Midwestern State of Nigeria as suit no. AG/1/69. The claim was for a declaration of title to a piece or parcel of land known as and called Idumu Ozoba situated and lying at Umunede. The plaintiffs also claimed for an injunction against the defendants as well as damages for trespass said to have been committed in 1968.

After a full hearing by Obi, J. he granted to the plaintiffs the declaration they sought, awarded N300.00 for trespass against the defendants and, subject to the liberty of any of the defendants having any crops on the land in dispute to reap them, permanent injunction against them.

From that judgment which was delivered on the 29th of July, 1980 the case has had a chequered career.

In the first appeal to the (Federal) Court of Appeal, Benin city, the judgment of the learned trial Judge was confirmed. On the defendants’ further appeal to this court, the court in the now celebrated case of Odi v. Osafile (1985) 1 N.W.L.R. (Pt. 1) 17 declared the judgment of the Court of Appeal null and void on the ground that it was delivered more than 3 months limitation of time within which to deliver such a judgment under section 258(1) of the constitution of the Federal Republic of Nigeria 1979. The case was remitted to the Court of Appeal for hearing de novo before another panel. I should mention that the first appeal before the Court of Appeal was heard and determined by that court composed of Omo-Ebo, Agbaje and Okagbue, J.J.C.A.The second hearing was however, by the Court of Appeal, coram Ikwechegh, Mustapher and Ajose-Adeogun, J.J.C.A.This latter panel reached a conclusion different from that of the earlier panel, they allowed the defendants’ appeal, set aside the judgment of the High Court and dismissed the plaintiffs’ claim.

Now, how did this particular appeal arise The learned counsel for the respondents before the Court of Appeal at the second hearing, who are the appellants now before this court in several portions of the respondents’ brief gave notice that they would rely on portions of the nullified judgment of the Court of Appeal. Because of the materiality of both the form and contents of such notice in this appeal, I shall set them out here. At p. 2 in paragraph 1.2 of the said brief it was stated:

“The respondents intend wherever necessary to invite this Hon. Court to adopt its opinion given on the 10th day of March, 1983 with respect to any relevant issue.”

I may observe that no particulars of where such relevant issues arose or of the previous opinion of the court were given. Also at p. 4 of the said brief it was stated:

“It is clear that the two villages of Umenede which were represented as plaintiffs in the suit herewith are not the two villages of Umenede which were represented as defendants in W/37/52. The respondents adopt the reasoning of the Court of Appeal in the judgment delivered on the 10th day of March, 1983 at pp. 5-13. This Honorable Court is urged to adopt the opinion.”

On the issue as to whether the appellants were represented in suit no.W/37/52, the submission of counsel in the respondents’ brief again ended thus:

‘Again the respondents notify this Honorable Court to adopt the reasoning at pp. 5-13 of the decision given during hearing on the 10th day of March, 1983.”

Similarly notices were given in similar words with respect to the subject matter at p. 5 Para. 3.4. Then at p. 8 Para. 6.3 on the “applicable law” the brief stated: