Chief Thomas Ekpemupolo & Ors V. Godwin Edremoda & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Lead Ruling)

The Applicants brought an application by motion on notice dated 11/10/12, filed on 16/10/2012 pursuant to Orders 6 Rules 15, 7 Rules 1 and 2 and 17 Rule 11 of the Court of Appeal Rules 2007. The motion is supported by a 14 Paragraph affidavit to which several exhibits were attached; thereafter the applicants filed a 5 paragraph further affidavit.

By the said motion filed on the 16/10/2012, the applicants asked this court to grant six prayers of which the respondents are not opposed to prayer one, five and six. The opposed prayers are herein after specifically set out as follows:

2. Leave to the appellants/applicants to further amend their amended notice of appeal filed on the 10th July, 1990 by substituting same with the further amended notice of appeal attached herein to the affidavit in support of this motion and marked exhibit “BB”.
3. Leave to the appellants/applicants to amend their brief of argument on the 10th July, 1990 by substituting same with the amended appellants’ brief of argument attached herein to the affidavit in support of this motion and marked exhibit “CC”.
4. Deeming the further amended notice of appeal, and the amended appellants brief of argument as properly filed and served, each having been separately filed and served, and the requisite fees having been paid.

The grounds for the application are set out below:

(i) There is need to bring before this court the judgment of the Supreme Court ordering rehearing of this appeal as well as the processes and procedure leading to the notice and grounds of appeal herein sought to be amended.

(ii) The substantive appeal was filed on 22nd December, 1980 by Messrs O.V. Siakpere and Dr. J.O. Akpojaro (both since deceased) who unsuccessfully argued the appeal, and further appeal to the Supreme Court in SC.35/2000.

(iii) Mr. S. Larry (now SAN) took up this matter on 6th June, 2006 and successfully argued the appeal at the Supreme Court which ordered rehearing by this court.

(iv) The appellants are desirous of further amending the amended notice and grounds of appeal as well as the appellants’ brief of argument before this court in order to bring before the court the real issues for determination.

(v) The proposed amendments are shown and the further amended notice of appeal and the amended brief of argument are ready, attached and also filed separately and so paid for.

(vi) There is need for accelerated hearing of this appeal as all briefs are in, and the area has known no peace since 1970 when the matter began.

The relevant portions of the supporting affidavit are paragraphs 6, 7, 8, 9, 10 and 12. They are set out below:

6. That on 27th March, 2009, the Supreme Court delivered judgment ordering a re-hearing of this appeal by the Court of Appeal, Benin Division.
7. That there is the need to properly bring before the court, the judgment of the Supreme Court ordering rehearing of this appeal, as well as the processes and procedure leading to the extant notice and grounds of appeal sought to be amended.

(The said supplementary record is hereby attached and marked exhibit “AA”.

8. That this case commenced since 1970, and since then the area had known no peace.
9. That it is in the interest of justice for the appeal to be reheard speedily.
10. That Mr. S. Larry has again studied the record and informed me in chambers on 24th April, 2009 at about 3.30 p.m. and I verily believe the following to be true:

(a) that in his humble opinion, there is need to further amend the amended notice of appeal by dropping/deleting the 1st and 2nd additional grounds of appeal therein and to substitute same with three new grounds.

(b) that he cannot in fairness proceed with the appeal without further amending the appellants/applicants’ Amended Notice and Grounds of Appeal.