Robert I. Ikweki V. Mr. James Ebele (2005)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, JSC

The appellants were the plaintiffs at the Sapele High Court of the old Mid-Western State of Nigeria where they claimed as the repre-sentatives of the Enegware Ovwere and Osebakpor families of Ughoton Okpe clan against the respondents as the representatives of Okere village jointly and severally for the following reliefs:

“(a) A declaration that the piece or parcel of land known as Ogbele land lying and situate in Ughoton but more particularly described and edged PINK in survey Plan No. TJM 1434 made on the 3rd day of April, 1973 by Theophilus John esq., licensed surveyor and counter-signed by the Surveyor-General, Mid-West State of Nigeria on the 8th day of October, 1973 and filed with this statement of claim is the exclusive and beneficial property of the plaintiff and their ENEGWARE, OVWERE and OSEBAKPOR families of Ughoton town, Okpe clan, Western urhobo division.

(b) N600.00 (six hundred Naira) damages for trespass on the said land.

(c) An order of perpetual injunction restraining the defendants, their relations, servants and agents from trespassing on the said Ogbele land.”

The parties filed and exchanged pleadings after which the case after passing through the hands of some judges came finally to be heard by Uwaifo J (as he then was). On 11th May, 1987, the trial judge gave judgment in favour of the plaintiffs. He granted the reliefs claimed by the plaintiffs including an award of four hundred Naira as damages for trespass.

The defendants were dissatisfied with the judgment. They brought an appeal against it before the Court of Appeal, Benin Division (hereinafter referred to as the ‘court below’). The court below in its unanimous judgment on 7th July, 1995 allowed the appeal. The judgment given by the trial judge was set aside and the case was ordered to be retried.

The plaintiffs were dissatisfied with the judgment of the court below. They have brought this appeal before this Court. In their appellants’ brief, they raised the following issues for determination in the appeal:

“(i) Has the Court of Appeal jurisdiction to entertain a purported appeal against –

(a) the substantive judgment of the trial court by notice of appeal which did not contain any ground of appeal directed against the said substantive judgment?

(b) an interlocutory ruling of the trial court in respect of which the defendants did not appeal?

(ii) Did Order 1 Rule 20(7) of the Court of Appeal Rules confer on the Court of Appeal jurisdiction to entertain, adjudicate and determine a purported appeal against the substantive judgment on grounds directed against an interlocutory ruling against which the defendants did not appeal?

(iii) Was the appeal which the Court of Appeal heard and determined in this case competent in that court?

(iv) Were the learned Justices right to interfere with the exercise by learned trial judge of his undoubted discretion to grant and or refuse application for adjournment on 23/3/97.”