Mr. G. Okon & Anor V. Mr. Shad B. Offeideh (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

This appeal is against the decision of Rivers State High Court delivered on 17th May, 1999 in the suit No. PHC/517/93. The original notice of appeal has thee (3) grounds of appeal. The appellant, by leave of this court granted on 8th June, 2009 filed, on 11th June, 2009, five, five (5) additional grounds of appeal.

In the brief of argument, filed on 11th December, 2008 but deemed filed on 8th June, 2009, the appellant formulated Five (5) issues from the total of 8 grounds of appeal, including 3 original and 5 additional grounds of appeal. The issues at pages 3 of the Appellants Brief are as follows:

3.01 Was the Learned Trial Judge Right when she came to the conclusion that Plot 9 has no Access to it and was rendered useless without access.

3.02 In the light of the parties pleadings and evidence, was the Learned trial Judge right in holding that at some point plot 9 had an access which the fencing by Defendants have closed without considering the fact that it was the plaintiff who closed his access to plot 9.

3.03 was the Learned trial Judge right in coming to the conclusion that the Defence of having purchased the proposed road from the Landlord does not avail the Defendants and should the said Landlord chief Geofrey C. Ogbonda have been joined as a party in this case.

3.04 Whether the Learned trial Judge was right in ordering the Removal of a gate and electric pole standing on Land that was lawfully acquired by the 2nd Defendant from Chief Geofrey C. Ogbonda the original owner.

3.05 Whether the Learned trial Judge was right in relying on her observation at the Locus in Quo and not afforded the opportunity to testify there at.

The Respondents filed his brief on 14 January, 2011. The brief was deemed filed and served on 25th April, 2011. Four issues for determination were formulated at paragraph 4, page 4 of the said brief a follows:-

1. Was the learned trial judge wrong in awarding the reliefs claimed by the Respondent?
2. Was the learned trial judge wrong in rejecting the Appellants defence in of buying the access road because the landlord wanted to sell it?
3. Whether the reliance of the learned trial judge on her findings of the locus was wrong?
4. was the learned trial Judge wrong in holding that plot 8 and 9 belonging to the plaintiff were distinct plots with different access and that the actions of the Defendant had blocked the access into plot 9 chief Ogbonda Estate?

I have read all the briefs and the Record of Appeal. I have also read arguments on each issue, as presented by the parties.

The respondent had purported to raise preliminary objection at paragraph 3, page 3 of his brief to the effect that the Appellants” Brief was filed out of time and therefore incompetent. The Respondent paid no fee for the filing of this purported objection. Only the payment of filing fee in accordance with Order 12 Rule 1 and the Third Schedule to the Court of Appeal Rules, 2011 validates the process. See MOYOSORE V. GOVERNOR, KWARA STATE. (2012)5 N.W.L.R. (pt.1292) 242. Put differently, the non-payment of the prescribed filing fee renders the preliminary objection incompetent.

The objection even on its merits, is misconceived and lacking in substance. It was predicated on the Respondent’s misconception that this court granted the Appellants 7 days to file the Additional Grounds of Appeal on 1st June, 2009. That Order was made on 8th June, 2009. And so, Appellants were within time when they filed their Additional Grounds of Appeal on 11th June, 2009.

The disputed parcel of land was on the master plan or Layout of Chief G. C. Ogbonda Estate of Rumuogba Orowo Obia Clan of Port Harcourt, Exhibit “C”, identified and set aside as an access road. The parcel of land is between Plots 9 and 25 as could be seen from the Layout Plan, Exhibit “C”.

Plot 9 belongs to the Respondent. He also owns plot 8.