Chief Kalu Igwe & Ors V. Chief Okuwa Kalu & Ors (2002)

LAWGLOBAL HUB Lead Judgment Report

E.O. OGWUEGBU, JSC.

On the 15th of February, 2002, this Court delivered judgment in the above appeal. The plaintiff/appellant’s appeal was dismissed by the majority judgment. On the 20th February, 2002, the appellants brought a motion on notice for the following orders:

(1) An order setting aside the judgment of this Honourable Court contained in the lead judgment of Uthman Mohammed, JSC., delivered on the 15th of February, 2002.

(2) An order directing the appeal to be argued de novo before a new Panel of the Court.

The grounds on which the application is based are as follows:

1. There was a denial of fair hearing when the Court struck out grounds 5 and 6 raised in the Notice of Appeal filed on 9th September, 1999 and argued as Issue 5 in the Appellant’s Brief, which issue touched on the title to the land in dispute on the ground that no leave of Court was obtained to argue those grounds when in fact leave was applied for and granted.
2. The learned Justice of the Supreme Court who read the lead judgment did not and could not have read the Appellant’s Reply Brief dated 19th November, 2001, when he stated in his Judgment:

(a) that there was no reaction by the Appellant to the Respondent’s allegation that no leave of court was obtained when in fact this issue was addressed on page 4 paragraph 1 of the Reply Brief, and

(b) When the learned Justice in dealing with Issue No. 2 stated at page 8 paragraph 2 as follows:

Learned Counsel for the Appellants made heavy weather of these amendments but failed to point out how the amendments affected their case before the Court or how it would entail injustice or surprise or embarrassment to them. To say that the Appellant’s were overreached by the amendments simpliciter without describing how the amendments affected their case before the Court is a hollow submission.’

When in fact at pages 1, 2 ad 3 of the Reply Brief the Appellant catalogued the miscarriage of justice occasioned by the grant of the application to amend the pleadings and the documentary evidence to wit: the plans before the Court.

There is an affidavit of seventeen paragraphs in support of the application with exhibits annexed to it. The relevant paragraphs read as follows:

7. That the appeal was argued on the 19th of November, 2001, on which day the Appellant filed its Reply to the Respondent’s Brief with copies of same duly made available to the Court.
8. That in the lead judgment of Mohammed, JSC., the learned Justice who read the lead Judgment struck out grounds 5 and 6 of the Appellant’s grounds of appeal which grounds formed the subject matter of Issue 5 raised in the Appellant’s Brief.
9. That the two grounds struck out raised the issue of title to the land in dispute and the non-consideration and determination of these grounds of appeal was prejudicial to the case of the Applicant.
10. That the reasons given in the lead judgment for striking out those grounds of appeal was that the Appellant did not in its Reply Brief dispute the contention of the Respondent’s Counsel that those grounds of appeal are incompetent as no leave of Court was obtained to argue those grounds.

xxxxx

12. That in resolving Issue No. 2 against the Appellant, the Honourable Justice Mohammed, JSC., at page 8 of the lead Judgment also stated as follows:

Learned Counsel for the Appellant made heavy weather of these amendments but failed to point out how the amendments affected their case before the court or how it would entail injustice or surprise or embarrassment to them. To say that the Appellants were overreached by the amendments simpliciter without describing how the amendment affect their case before the Court is a hollow submission.’

13. That it is of course incorrect that the prejudice created by the granting of the amendment was not stated by the Appellant as all these were set out on pages 1, 2 and 3 of the Reply to the Respondent’s Brief.
14. That I am informed by Miss. O. M. Lewis and I verily believe that the statements attributed to the Honourable Justice of the Supreme Court who read the lead Judgment could not have occurred if cognizance had been taken of the Reply to the Respondent’s Brief filed by the Appellant before the Court.
15. That the error on the part of the Honourable Justice who read the lead judgment has resulted in a miscarriage of justice, as Judgment would have been given in favour of the appellant or at worst the case would have been sent back for retrial.

The defendants/respondents thereafter filed a motion in opposition praying the Court for the following orders:

An order striking out the appellant’s motion dated 15/2/2002 (sic) to set aside the judgment of this Honourable Court dated 15/2/2000 (sic) and for the trial of this suit de novo at the Umuahia High Court, Abia State;