Edward O. Nikagbatse V. MR. God’power French & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Delta State, sitting at the Warri Judicial Division which was delivered on 29th May 1996. The Appellant herein, as Plaintiff in the lower court instituted proceedings in Suit No. M/31/83 against the first set of Respondents herein, as Defendants, claiming for the following reliefs:

1. A declaration that the developed land verged green and yellow in part “A” of the Plaintiffs’ survey Plan No. TJBD 1067 filed with this claim sometimes known as the defunct 2nd Okere Union School Compound is the land of the Nikagbatse-Oki family of Okere, Warri.
2. An order of ejectment of the Defendants from the said land, that is to say, that the Plaintiffs to recover possession of the premises known as the defunct 2nd Okere Union School Compound verged green and yellow in part “A” of the survey plan No. TJBD 1067 on the ground that the Plaintiffs are entitled to possession and that the Defendants are in occupation without lawful authority, licence or consent.
3. An award in favour of the Plaintiffs against the 13th and 14th Defendants of the sum of N100,000 (One Hundred Thousand Naira) as damages for acts of trespass in that they are in wrongful occupation and user of the land in dispute, thereby wrongfully depriving the plaintiffs of the said land.
4. An order of perpetual injunction to restrain the Defendants, their agents, servants or privies and/or person or persons claiming through them from entering upon the aforesaid Plaintiffs’ land or interfering in any manner whatsoever with Plaintiffs’ rights and interests in and over the said land.
5. Further and other reliefs.

In the related Suit No. M/32/83, the Appellant as Plaintiff claimed the following reliefs against the second set of Respondent herein as Defendant in the said action namely:

1. A declaration that the developed land verged pink in part ‘B’ of the plaintiffs’ survey plan No. TJBD 1067 filed with this claim sometimes known as the defunct 1st Okere Union School Compound, like all the other adjoining lands in the area verged green in the said part ‘B’ of the said survey plan, is the land of the Nikagbatse-Oki family of Okere, Warri.
2. An order of ejectment of the Defendants from the land in dispute, that is to say, that the Plaintiffs do recover possession of the premises known as the defunct 1st Okere Union School Compound, the land in dispute verged pink in part ‘B’ of the Plaintiffs’ survey plan filed with this suit on the ground that the Plaintiffs are entitled to possession and that the defendants are in occupation without lawful authority, licence or consent
3. An award in favour of the Plaintiffs against the 13th and 14th Defendants or the sum of N100,000 (One Hundred Thousand Naira) as damages for acts of trespass in that they are in wrongful occupation and user of the land in dispute, thereby wrongfully depriving the Plaintiffs of the said land.
4. An order of perpetual injunction to restrain the Defendants, their agents, servants or privies and/or person or persons claiming through them from entering upon the aforesaid Plaintiffs’ land or interfering in any manner whatsoever with Plaintiffs’ rights and interest in and over the said land.
5. Further or other reliefs.

The actions were consolidated for hearing and after a full dressed inter partes hearing in which the parties called several witnesses in proof of the relative positions averred to in their respective pleadings, the lower court in its judgment dismissed the Appellant’s case in the consolidated Suits. Being dissatisfied with the said decision, the Appellant appealed against the same. The Notice of Appeal which was filed on 23rd August 1996 is at pages 315 – 318 of the Records.

The Records of Appeal having been settled, compiled and transmitted to this court, the parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument which is dated 8th February 2013 but filed on 8th March 2013 was deemed as properly filed and served on 20th May 2014. The Respondents Brief of Argument which is dated 30th April 2013 was filed on 2nd May 2013.

The Appellant formulated two issues for determination in his brief of argument as follows:

1. Whether the judgment of the learned trial judge was perverse (Grounds 1 & 3).
2. Whether a claim for possession is in congruous or inconsistent with a claim for damages for trespass (Ground 2).

In their brief of argument, the Respondents raised a preliminary objection wherein the challenged the competence of Ground 2 of the Grounds of Appeal contending that the said ground was ambiguous, nebulous and did not relate to the decision and/or finding made by the lower court.

The Respondents then distilled a sole issue for determination in the appeal, namely:

Whether the learned trial judge made good and legal use of the opportunity of seeing and hearing the witnesses in the evaluation of the evidence before him and in his ascription of value to same.

At the hearing of the appeal, the learned counsel for the Respondent informed the court of the preliminary objection which was incorporated in the Respondents’ Brief of Argument. In arguing the appeal, Sir A.J. Oshiokpelua, learned counsel for the Appellant adopted the submissions in the Appellants’ Brief of Argument.

He contended that the Respondents preliminary objection was incompetent as it was not filed in accordance with order 10 Rules 1 and 3 of the Court of Appeal Rules. He further submitted that Ground 2 of the Grounds of Appeal which is subject of the attack in the preliminary objection is a good ground as it flows directly from the finding of the lower court at page 284 fines 10 – 23 of the Records. He urged the court to allow the appeal.

Chief V. E. Otomiewo, learned counsel for the Respondents adopted the submissions in the Respondents Brief of Argument. He referred to the preliminary objection at paragraph 2.0 on page 5 of the Respondents Brief and he urged the court to uphold the preliminary objection and strike out the said Ground Two of the Grounds of Appeal. With respect to the merits of the appeal, learned counsel urged the court to dismiss the appeal.

PRELIMINARY OBJECTION

The Appellant has challenged the competence of the Respondents’ Preliminary objection on the grounds that it does not comply with the stipulations of Order 10 Rules 1 and 3 of the court of Appeal Rules. The said Order 10 Rules 1 and 3 deals with the filing of a Notice of Preliminary Objection and requires that a Respondent who intends to rely on a preliminary objection shall give the appellant three clear days notice thereof before the hearing and that where this is not done the court may refuse to entertain the objection or may adjourn the hearing as it thinks fit.