Paul Odi & Anor V. Gbaniyi Osafile & Anor (1985)

LawGlobal-Hub Lead Judgment Report

O. OBASEKI, J.S.C 

This appeal raises two important constitutional issues. The first which goes to the extent of the jurisdiction of the Court as the highest and final court of appeal in the Federal Republic of Nigeria is:

“whether the Supreme Court sitting as a full court has jurisdiction to depart from the decision given previously on the same constitutional question by another full court of the Supreme Court.”

The second issue which is no less important is “whether in the instant appeal grounds exist which warrant a departure from the decision in the case Chief Dominic Onuorah Ifezue v. Livinus Mbadugha and Anor. (1984) 5 S.C. 79.”

However, before embarking on a consideration of the two very important constitutional issues, a resume of the short history of the proceedings in this matter from its commencement in the High Court to the conclusion of the appeal in the Court of Appeal is desirable.

Proceedings were commenced in the High Court of Justice Midwestern Nigeria, Asaba Judicial Division Holden at Asaba by the respondents against the appellants on 3rd February, 1969 by writ of summons in which the respondents as plaintiffs claimed a declaration of title to a certain piece of land, N400.00 damages for trespass and an order of injunction. The defendants who sued in a representative capacity were (1) Osikpo Nwajei and (2) Odi Onichabor. The matter came up for hearing before Aghoghovbia, J. On completion of pleadings, the learned judge heard evidence and addresses of counsel and adjourned for judgment. He was later transferred from Agbor to Ughelli. He subsequently retired from the Judicial Service of the Midwestern State without delivering his judgment. The matter was later listed before Obi. J. for hearing. He had to carry out a new trial, hearing evidence all over again. But before then, the original 1st and 2nd defendants had died and an order to substitute the present 1st and 2nd for the original dead 1st and 2nd defendants was made on the application of the plaintiffs.

The original 2nd plaintiff became old, feeble, senile and unfit to carry on with the case. Similarly, on the same application, John Emeri was substituted for the 2nd plaintiff.

The learned trial judge heard evidence and addresses all over again and gave judgment for the plaintiff. In the concluding paragraphs, the learned trial judge said:

“I am satisfied that the plaintiffs have been in continuous and unbroken possession of the land in dispute and that they are the owners of it. I also find their complaint of trespass against the defendants established and since the defendants have evinced a determination to continue their acts of trespass, the claim for injunction to restrain them from doing so is also sustained.

I accordingly grant the declaration of title in terms of plaintiffs’ claim. There will be judgment in their favour in the sum of N300.00, damages for trespass. The order for injunction which I will make is that the defendants and members of their Idumu Obi and Idumuaban of Emuhu including their agents, servants or anyone who may purport to act with authority are restrained by way of perpetual injunction from further acts of trespass on the land in dispute shown and therein edged PINK (areas A and B) on survey Plan Exhibit 1.”

This was on the 29th day of July, 1980. Thus it took just over 11 years from the date the claims were filed to the date judgment was given. The cause of the delay was graphically explained in the judgment of Obi, J. as follows:

“The two original plaintiffs were Gbaniyi Osafile and Bakwunye Agbaji both of whom sued for themselves and on behalf of Idumu and Idumu-Ozoba of Umunede. The two original defendants were Osikpo Nwajei and Odi Onichabor sued also in a representative capacity, for themselves and on behalf of Idumu-Obi and Idumu-Aban families of Emuhu.

Pleadings were ordered and duly filed and exchanged between the parties. Thereafter, the case suffered a rather chequered career until it came up for hearing before Aghoghovbia, J. who received evidence to conclusion when he was transferred from Agbor to Ughelli Judicial Division in 1975. Both counsels in the case were requested to submit their addresses in writing to enable judgment in the case to be delivered. They did so but the said judgment did not see the light of the day because in the meantime, the judge who heard the case had retired from the judicial service of the State.

By 1978, the 2nd plaintiff, Bakwunye Agbaji, was said to have become very old, feeble and unfit to carryon with the case. Both the original 1st and 2nd defendants have died. On the application of the plaintiffs, new parties were substituted in the case. By order of court, dated 22nd February, 1978 John Emiri was substituted for 2nd plaintiff, Bakwunye Agbaji and Okwumaso Nwajei and Paul Odi were substituted respectively for the original 1st and 2nd defendants (Osikpo Nwajei and Odi Onichabor). As the names suggest, the new substituted defendants are also direct sons of the two original defendants respectively. These new parties prosecuted the case to finality before me.”