Daniel Garan Vs Staff Olomu (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C

This is an appeal against the judgment of the Court of Appeal, Benin Division, hereinafter referred to as the court below, setting aside the judgment of the Delta State High Court, otherwise referred to as the trial court in this judgment, delivered on 26th September, 1996 in suit No. W/1011986 and remitting same to the trial court for retrial before a judge other than James Omo-Agege CJ against whose judgment the defendant/respondent/Cross appellant’s appeal was allowed.

Dissatisfied by the judgment, the plaintiff at the trial court who was the respondent at the court below has, with leave, appealed to this Court on a Notice, see pages 313 – 317 of the record of appeal, containing five grounds. It is pertinent to also note that the defendant at the trial court has similarly cross-appealed against the judgment of the court below on a notice containing four grounds.

The respondent who has raised and argued a preliminary objection against the appellant’s appeal appears to have abandoned same as no mention of the objection was made by counsel when the appeal was heard. The preliminary objection based on facts which are, in any event, not borne out by the record of appeal is accordingly hereby struck out.

At the hearing of the appeals, parties adopted and relied on their briefs as arguments for and against the two appeals. They have distilled issues in their briefs for the determination of their respective appeals. The three issues raised in the appellant’s brief for the determination of his appeal are:-

“1. Whether the Court of Appeal was right when it held that it was wrong for the trial court to allow learned counsel who conducted the case to give evidence at the trial and tendered exhibit “D”. (This issue covers grounds of appeal)

2. Whether the further amended statement of claim did adopt and incorporate the reliefs in the writ of summons when the appellant averred in Paragraph 19 “wherefore the plaintiff sued the defendant as per writ of summons. (This issue covers ground 3 of the grounds of appeal).
3. Whether from the state of pleadings and the evidence tendered by both parties, the appellant was not entitled to the judgment of the Court of Appeal instead of remitting same to the lower court for retrial. ”

On his part, the respondent has distilled four similar issues at pages 9 – 10 of his brief as arising for determination in the appeal. They read:-

“1.07 Whether the Court of Appeal was right when it held that the learned trial judge was wrong to have allowed a counsel in the legal firm handling the appellant’s case to give evidence on a point directly material to the case.

1.08 Whether the further amended Statement of Claim did adopt and incorporate the reliefs in the writ of summons when the appellant stated in paragraph 19 “wherefore the plaintiff sued the defendant as per writ of summons.

1.09 Whether the learned justices of the Court of Appeal were right to have ordered a retrial.

2.01 Whether from the evidence tendered by both Parties, who discharged the burden of Proof on the balance of probability”

For the cross appeal, the cross appellant has at pages 3 – 4 of his brief formulated five issues for the determination of the cross appeal. The issues read:-

“2.02 Whether the learned justices of the Court of Appeal did not misdirect themselves in law when they failed to consider some of the vital issues raised by the cross appellant as to whether the learned trial judge properly evaluated the evidence before arriving at his conclusion.

2.03 Whether the learned justices of the Court of Appeal were right to have ordered a retrial in this case.