Chief Brown Uzuda & Ors. V. Mr. Ezekiel Ebigah & Ors (2009)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

In this matter, the plaintiffs in suit NO.AHC/52/86 has claimed against the defendants jointly and severally, a declaration of right of occupancy, damages for trespass and injunction in regard to the land in dispute situated in Ahoada Judicial Division. The defendants as plaintiffs in a cross-action No.AHC/107/86 have also claimed similar reliefs against the plaintiffs as in Suit No.AHC/52/86 as defendants, in respect of the same land in dispute as in the aforementioned suit. The two suits have been consolidated.

The defendants in AHC/52/86 have filed an application for an interlocutory injunction to restrain the plaintiffs from entering the land in dispute. Sequel to its ruling on this application, the trial court on 16/10/87 has acceded to the application, thus restraining the plaintiffs from entering the land in dispute. However, the plaintiffs have not reacted immediately to the order of injunction until 31/10/88 when by an application, they have prayed the trial court to vary the order of interlocutory injunction to restrain both parties to the suit. In a considered ruling, the trial court refused their prayer declaring that it has become functus officio in respect of the matter. The plaintiffs have felt aggrieved by the decision and have appealed to the Court of Appeal (court below) on a Notice of Appeal containing 7 grounds of appeal as per a Notice of Appeal dated 1/6/89. The defendants also being dissatisfied with some aspects of the trial court’s decision have cross appealed to the Court of Appeal upon a Notice of Appeal dated 2/6/97 in which they have raised two grounds of appeal.

As events in this appeal will show the issues formulated from these two grounds of appeal have become the causa causans in this appeal, and so I have set them out below without their particulars as follows:

“Ground 1 – Error in law: The learned trial Judge erred in Law by assuming jurisdiction over a motion it had become functus officio by virtue of its decision dated 16th October, 1987 thereby occasioning a miscarriage of justice.

Ground II: Error in law: The learned trial Judge erred in law by assuming the jurisdiction of an Appellate Court”. The issues for determination raised from these grounds of appeal have been set out below. These grounds of appeal have raised substantial issues of law for determination; that is to say, in the con of the issue for determination distilled from them which are no pushovers. As will become obvious anon they have not been considered at all in the appeal before the court below.

Coming back to the sequence of events in this matter the court below on 11/7/2002 has handed down its decision in the matter by allowing the appeal with no mention whatsoever of the fate of the cross-appeal in its judgment as I shall show anon. The defendants, (the respondents) in the Court of Appeal thus aggrieved that the court below has not inter alia considered all the issues they have raised for determination in their cross appeal, have filed if I may repeat their Notice of Appeal containing 7 grounds of appeal against the said decision. In this court, the plaintiffs are the respondents while the defendants are the appellants.

In compliance with the Rules of this court, both parties have filed and exchanged their respective briefs of argument in this appeal. The Appellants (Defendants) in their brief of argument, have distilled two issues for determination and they are as follows:

(i) “Whether the Court of Appeal gave full and dispassionate consideration to all the issues raised in the Appeal and Cross-Appeal.

(ii) Whether the Court of Appeal was right in allowing the appeal considering the over one year delay by the respondents in filing the motion to vary, and if the status quo ought to have been maintained.”

The Respondents (Plaintiffs) have in their respondent’s brief of argument distilled two issues to wit:

(i) “Whether the court below properly appreciated the facts placed before it by the respondents before arriving at a decision in their favour.

(ii) Whether the court below should have considered the cross-appeal.”

At the oral hearing of this appeal before this court, both parties have adopted and relied on their arguments as contained in their respective briefs of argument to support their respective cases. The defendants have urged the court to allow the appeal, set aside the judgment of the court below and affirm the ruling of the trial court dated 30/5/89; the plaintiffs on the other hand, have urged that the appeal be dismissed for want of merit and that the cross-appeal not having been heard by the court below should be sent back to that court for hearing.