Eleazor Obioha V. Innocent Ibero & Anor (1994)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C. 

On 26th day of February, 1993 in the appeal No. S.C.91/1988, this Court allowed the appeal and set aside the decision of the Court of Appeal. It was a unanimous decision. I had the opportunity of agreeing with the lead judgment when I held inter alia as follows:

“The appeal in any case must be decided on the grounds of appeal filed and as enunciated in the Briefs of Argument in support. There is no ground of appeal challenging the cogent and important findings of trial Judge on the boundary between the contending parties which he unambiguously placed at the “elope” (moat) and the Court of Appeal ought not to have dwelt so deeply into this definite and conclusive finding of fact in the absence of anything perverse or unlawful or inadmissible in evidence leading to that finding.”

The respondent in that appeal, Eleazar Obioha, has now come with a motion on notice praying for orders:

(i) “directing a review of the judgment given in appeal S.C. 91/1988 aforementioned as delivered on 26th day of February, 1993, and

(ii) correcting some errors arising from accidental slip or omission in the judgment, to wit:- that the respondent in his appeal from the decision of the High Court to Court of Appeal filed only two grounds;

(iii) discharging the order restoring the judgment of the High Court arising from the error arising (sic) from the accidental slip or omission;

(iv) discharging the decisions of the Court in the Judgment of 23rd February 1993.

(a) that the District Officer in Exhibit K assessed the capacities in which the parties sued and were sued from personal capacities to representatives capacities;

and (b) that the District Officer in Exh. K had no authority to alter the capacities in which the parties sued and were sued from personal capacities to representative capacities;

(v) discharging the decision of the court in the judgment of 23/2/93 that there was no basis for the decision of District Officer in which Exh. K, the native court judgment upon the respondents plea of estoppel rested, to the effect that the native court action was fought or prosecuted in representative capacities;

(vi) ordering the rehearing of the appeal in this court or the rehearing of the appeal in the Court of Appeal or the retrial of the case itself.

The grounds upon which the application was made state as follows:

“1. The Court in its judgment of 23/2/93 made an accidental slip or omission whilst considering the point whether the appellants were entitled to judgment in that it took the erroneous view that the respondent filed only the two grounds of appeal in the respondents’ notice of appeal and inadvertently failed to take notice of the two additional grounds of appeal filed by the respondent in his appeal to the Court of Appeal from the High Court.