Diokpa Francis Onochie & Ors V. Ferguson Odogwu & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

The main appeal is against the decision of the Court of Appeal, Benin Division, delivered on 4th April, 2001, allowing the appeal of the defendants/respondents from the decision of the High Court of Delta State sitting at Asaba delivered on 20th July, 1998 by Odita, J. The respondents have also cross-appealed.

Dissatisfied with the said decision, while the appellants have appealed to this court on three (3) grounds of appeal, the respondents’ appeal is based on one lone ground of appeal.

The respondents have raised a preliminary objection and contend that grounds 2 and 3 of the notice of appeal are incurably bad and incompetent. They urge the court to strike out the said grounds and any arguments founded on them. The ground of the objection is stated as follows:

“1. Non-compliance with Order 8 rules 2 & 4 of the Supreme Court rules –

(a) Grounds 2 & 3 did not constitute or disclose any error in law either on the main body and or with the particulars thereof The particulars stated are mere factual arguments and not particulars of any error committed by the learned Justices (sic) (meaning by) in the judgment complained of.

(b) The complaints in the two grounds of appeal are in fact and in effect complaints of facts or mixed law and fact and plaintiffs did not obtain leave to appeal as required by the Constitution.”

I note that at the hearing of this appeal, the learned counsel for the respondents did not apply/seek leave of the court before the hearing of the appeal to move the said objection. The consequence is that the preliminary objection is deemed by the court as having been abandoned. See – the cases of Chief Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; (1990) 5 SCNJ 174; Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469; (2000) 6 SCNJ 281 and recently, Tiza & Anor. v. Begha (2005) 5 SCNJ 168 at 178; (2005) 15 NWLR (Pt. 949) 616 just to mention but a few. The preliminary objection is accordingly struck out.

The facts of the case briefly stated are that the appellants were the plaintiffs in Suit No. A/24/95 at the High Court in Asaba, Delta State. They sued in a representative capacity and claimed declarations that the land in dispute is the communal land of both the plaintiffs and the defendants and therefore that the two parties are entitled to the statutory or customary right of occupancy over the said land. Pleadings were filed and exchanged. After hearing evidence and the addresses of the learned counsel for the parties, in a considered judgment delivered on 20th July, 1998, the learned trial Judge entered judgment in favour of the appellants in respect of the reliefs in Nos. 1, 2, 3 and 5 of their claims. He also made an order setting aside as null and void any sale, lease, mortgage, pledge, charge, exchange or any act touching the land in dispute. See pages 95 to 134 of the records.

Dissatisfied with the said decisions, the defendants/respondents, appealed to the court below. The parties filed and exchanged their respective briefs of argument. The parties also made oral submissions. The Court of Appeal, allowed the appeal and set aside the judgment of the trial court mainly on issue No. 1 raised by the appellants in that court. See pages 238 to 253 of the records. Both sides have appealed against the said judgment on different grounds.

The appellants have formulated one (1) lone issue for determination, namely,

“Whether the learned Justices of the court below were right in holding that exhibits 1-4 are inadmissible in evidence for non-compliance with section 7 of the Public Archives Act.”

At page 4 of the respondents’ /cross-appellants’ brief, under “Part II”, they have formulated their issue No.1 thus:

“Whether the learned Justices were wrong in law in holding that exhibits 1 – 4 did not comply with section 7 of the Public Archives Act and therefore inadmissible in evidence:”