Chief Okoli Ekawu V. Mr. Achi Ojugbo & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

Chief Okoli Ekawu was the 2nd Plaintiff in Suit No. HJ/32/99 and he with two others, namely, Mr. Fidelis Ukpor Ogar and Madam Ogeyi Ochelebe instituted the action in a representative capacity for themselves and on behalf of the late Wonah’s family of Ochongo Village, Ijegu-Yache, Yala Local Government Area of Cross River State against Mr. Achi Ojugbo and Mr. Paul Ochade (defendants) also in a representative capacity for themselves and on behalf of the late Ojugbo Abru’s family of Imaje, Yala Local Government Area. In paragraph 24 of the Statement of Claim, they claimed against the defendants jointly and severally as follows:

1. A declaration that the House No. 5, Idu Ishedu Street, Okuku in Yala Local Government Area built by late Madam Paulina Wonah is the exclusive property of the late Wonah’s family of Ochongo Village, Ijegu-Yache.
2. A declaration that the defendants are not members of the said Wonah’s family of Ochongo village of Ijegu-Yache.
3. Perpetual Injunction restraining the defendants and the late Ojugbo Abru, a member of the defendant’s family since the death of Paulina.
4. An account of all monies collected by the defendants and the late Ojugbo Abru, a member of the defendant’s family since the death of Paulina Wonah.
5. An order for the payment by the defendants to the plaintiffs of all the monies so collected by the defendants and the late Ojugbo Abru with interest at the present bank rate.
6. N500,000.00 damages for trespass.

Pleadings were filed and exchanged. The defendants filed a Joint Statement of Defence. Following the Reply which the Plaintiffs filed to the Joint Statement of Defence, the Defendants amended the Statement of Defence on 18th December 2000. The parties called witnesses who testified and tendered some exhibits before their counsel addressed the court. In a reserved judgment delivered on 3rd November, 2008, the learned trial Judge dismissed the plaintiffs’ claims with N5,000.00 costs in favour of the defendants. Dissatisfied with the verdict reached, the 2nd plaintiff instructed counsel for the plaintiffs to appeal on his behalf and on behalf of Wonah’s family. The Notice of Appeal dated 1st December, 2008 was filed on 12/1/2009.

After arguments in the appeal had been heard and the appeal adjourned for judgment, counsel for the appellant brought an application dated 5th June, 2010 but filed on 7/6/2010 seeking to substitute the appellant Chief Okoli Ekawu who was reported to have died on 25th May, 2010 with Mr. Onah Ogidi who is a member of Wonah’s family. The application was moved and granted. The appellant’s counsel distilled six issues from the 9 grounds of appeal filed which are:

“3.1 What is the main/real issue for determination in this case (Grounds 3 and 5).

3.2 Whether the court below properly evaluated the evidence before it (Ground 4).

3.3 Whether the court below was fair to both parties (Grounds 7 and 9).

3.4 Whether the court below was right in holding that the Defendants/Respondents are now in possession and are managers of the property in dispute (Ground 8).

3.5 Whether the court below misdirected itself with regard to the position of the plaintiff/appellant and his witnesses when it held that this case and the defendants/respondents was/were brought to court by the plaintiff and his witnesses. (Ground 6).

3.6 Whether the judgment of the court below accords with the evidence before it (Grounds 1 and 2).

The appellant also filed a Reply Brief in answer to the Preliminary Objection raised by the Respondents. The preliminary objection is that the appeal is incompetent because the issues for determination do not emanate from the grounds of appeal. According to the learned counsel for the Respondents, “the appellant donated one purported ground of appeal with 8 bogus issues for determination which he termed grounds of appeal.”

I cannot appreciate the complaint by the Respondent that the appellant donated only one ground of appeal. I have studied the Notice of Appeal and arrived at the conclusion that most of the grounds if not all are valid grounds of appeal since they contain the substance of the complaint against the judgment. Grounds 1, 2, 4, 6, 8 and 9 are reproduced to show that they are not only valid but clearly show why the appellant feels dissatisfied with the judgment of the lower court:

“1. The judgment is against the weight of evidence.

2. The learned trial Judge erred in law by dismissing the suit of the plaintiff/appellant on the grounds that paragraphs 10 and 21 of his statement of claim were not proved when:

(a) By the legal principle that what is not denied is deemed admitted and what is admitted need not be proved those paragraphs need not be specifically proved by the Plaintiff/Appellant.