Joseph Ewete V Paul Gyang (2003)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This appeal raises yet again the validity or otherwise of an order for leave to appeal on grounds other than of law only from the decision of a High Court in any of the Northern States (in this case, Plateau State) sitting in its appellate jurisdiction to the Court of Appeal. One would have thought that the question raised has been put to rest by the decision of this court in Alhaji Oloyede Ishola v. Memudu Ajiboye (1994) 6 NWLR (Pt,352) 506. This court by majority, decided, inter alia, in that case that in considering an application for leave to appeal, the High Court of Kwara State must be constituted by two Judges of that court as required by section 63 (1) of the High Court Laws of Northern Nigeria, Cap. 49, Laws of Northern Nigeria, 1963 (applicable also in Plateau State). We are now being called upon in this appeal to depart from that decision and to hold that such an order is valid where it is made by a single Judge of the High Court of the State.

This case has a chequered history. The plaintiff, who is now the appellant in the appeal now before us, had in 1988 in the Upper Area Court, Jos, in suit No. JUAC-09cv-1988 sued the defendant, now respondent, claiming –

(a) A declaration that the plaintiff is the rightful and exclusive owner of the property situate at and known as No.T45A Laranto Village, Jos covering a total Area of 0.012 hectares.

(b) A perpetual injunction restraining the defendant, his servant and/or agents howsoever from trespassing into or remaining in occupation of the aforesaid property.

(c) The sum of N4,000.00 being general damages for trespass.”

The case went to trial at the conclusion of which the trial court found for the plaintiff and adjudged:

“I hereby give judgment in favour of plaintiff against the defendant, and declared that plaintiff is the rightful owner of the land situated at and known as No.T45A Laranto covering 0.012 hectares and ordered that the defendant should not trespass or interfere with the said land and whatsoever, and court hereby awarded the sum of N1,500.00 (One thousand five hundred Naira) against the defendant. Court order defendant to pay the cost of action N140.00 plus N100.00 counsel appearance and N30.00 taxi to locus in quo”.

The defendant being dissatisfied with this judgment made fruitless applications to both the High Court and the Court of Appeal to appeal against the said judgment. Still undaunted, he applied to the Upper Area Court, Jos – the trial Court – for an order

“setting aside the judgment of this Honourable Court delivered in this suit on the 12th October, 1988 as well as all other ancillary processes based thereon”

on the grounds that:

“(i) There was a fundamental defect which goes to the issue of jurisdiction and competence of this Honourable court on the days it heard the case and delivered the judgment.

(ii) The judgment was obtained by fraud.”

The application was supported by an affidavit to which there were annexed some documents. The plaintiff also filed a counter affidavit – to which also were annexed the previous judgment and rulings in the matter. After a protracted hearing of the application, the trial Upper Area Court, Jos, granted it and ordered as follows: