Ogbueshi Samuel N. Obidoa & Ors V. Dr. Debel Marchie (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the ruling of the High Court of Justice, Anambra State, Idemili Division, sitting at Ogidi (hereinafter referred to as “the lower court”) delivered on 12/5/05. At the lower court the plaintiff now respondent filed suit No. HID/90/2001 against the defendants now appellants claiming this under listed reliefs –

(a) Declaratory Order of Right of Occupancy.

(b) N 1,000,000.00 (One million Naira only) as damages; and

(c) Perpetual injunction

Pleadings were ordered, filed and exchanged by parties, with the Plaintiff filing his Statement of Claim dated 27/5/2002 while the Statement of Defence for the Defendant dated 9/12/2003 was filed on the same day. After pleadings were exchanged hearing commenced in earnest on 5th of April 2004. The Respondent as Plaintiff at the lower court started his testimony on 5/4/2004 and concluded his testimony on 31/5/2004 after he was duly cross examined and re-examined.

Then on 14th of July 2004 the Plaintiff filed a Motion on Notice seeking these order; namely –

“(a) AN ORDER granting leave to the Plaintiff/Applicant to amend his Statement of Claim and Plan in this Suit in the manner underlined or shown in the document headed “Amended Statement of Claims and Plan annexed thereto already filed and served

(b) AN ORDER deeming the Amended Statement of Claim and Plan separately filed as properly filed and served, the necessary fees having been paid

(c) AN ORDER granting leave to the applicant to recall PW1 in this matter for the purposes, inter alia, of testifying in line with the new facts and documents now pleaded in the Amended Statement of Claim which said facts and documents were not available to PW1 at the time he testified in this matter”.

It is pertinent at this stage to give brief history of the facts which gave rise to this appeal as could be gleaned from their Record of Appeal.

The respondent herein, who was the plaintiff at the lower court took a Writ against the present appellants as defendants thereat, claiming the aforementioned reliefs. The plaintiff claimed that the land in dispute belonged to his family while the 1st and 2nd defendants/appellants claimed that the land in dispute was partly the land acquired from one Simon Iwebo and partly the ancestral land or home of the said 1st defendant/appellant.

After pleadings were ordered, filed and exchanged by parties hearing in the case commenced by the plaintiff, who testified as PW 1.

After he testified and was cross-examined by the defendant’s counsel, the plaintiffs counsel brought an application by way of motion on notice seeking the leave of the lower court to amend the plaintiffs Statement of Claim and Plan of the land in dispute and to also recall the plaintiff (PW1). The defendants’ counsel opposed the application and filed counter affidavit and their learned counsel Rob Iweka SAN indicated his intention to oppose the said application vigorously. The application was then adjourned to a later date for hearing.