Rev. Ebute John Onogwu & Ors. V. Benue State Civil Service Commission & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED AMBI-USI DANJUMA, J.C.A: (Delivering the Leading Judgment)

This is an appeal against the decision of the Lagos State High Court delivered by Hon. Justice D. O. OLUWAYEMI, J on the 28th day of March, 2006 at the Ikeja Judicial Division of the Court wherein the Claimants/Respondents, suit was declared meritorious and the reliefs claimed ware granted as prayed and wholly.

The said judgment is at pages 131 – 142 of the record of appeal. For a full appreciation of this appeal, the full facts and the circumstances of the appeal need to be restated as captured by the Appellant and acceded to by the Respondents also.

The plaintiffs, who are now Respondents had claimed against the Defendants/Appellants at the trial court for the following reliefs and per their amended statement of claim (contained at page 76 of the record):

1. A declaration that the plaintiffs are entitled to a grant of a statutory right of occupancy in respect of that piece of land situate and being at Ipaja Village, Agege, Lagos which is more particularly delineated and drawn on survey plan No. OGEK 1135 /81. prepared by 5. AKIN OGUNBIYI licensed surveyor and Deed of Conveyance No. 104 at page 426 in volume 105 and dated 26/6/1917 kept at the land Registry, Lagos.
2. Perpetual injunction restraining the Defendants, their agents, privies and servants from committing further act of trespass on the land.
3. N=10,000.00 Damages for destroying the plaintiffs crops on the land.

The plaintiffs amended Statement of claim is contained at 74 – 76 of the record and is dated 9/02/2004.

The reply to the amended statement of defence dated 16th October, 2003 is at page s 62 – 64 of the record.

At the trial, the plaintiffs testified as PW1 and PW2 at pages 77- 81 and 82 – 85 of the records respectively.

On the part of the defendants, only the 2nd Defendant, AMOS OJO OJE Medah testified as DW. see pages 89 – 91 of the record.

The plaintiffs written address dated 17th February, 2005 (at pages 105 – 121 of the record); the Defendants address dated 24th January, 2005 (at 92 – 102 of record) and Defendants Reply address on points of law only of 22nd February, 2005 (122- 124 of the record) were all adopted by the parties and the vexed judgment of 28th March, 2006 was delivered as earlier on stated, granting all the claims of the plaintiffs.

The Notice of Appeal in this appeal is the amended Notice of Appeal filed pursuant to motion filed on 15/3/07 which was granted on 8/4/08.

The said order granted was for leave to file an additional ground of appeal to wit Ground 5, to the Appellants Grounds of appeal. It is instructive to observe, however, that the additional ground of appeal No.5 for which leave was granted was, not filed. The instant notice and Grounds of appeal are those contained at pages 143 – 146 of the record. As after all, the Appellants truly prevaricated in respect of this intended 5th ground of appeal.

I see a motion filed on 15/3/07 which was granted; and yet another filed on 15/4/08 which was granted on 7/4/09 with the deeming order sought refused, however.

The said intended additional ground of appeal bordering on a challenge to the portion of the judgment said to be at variance with a claim may not have substantially affected the ultimate position of the judgment and the merit of the appeal based on the other grounds filed and argued, hence the abandonment. I will stop speculating as it is not the function of this court.

The Appellants filed their brief of argument on 15/4/09. The Respondents on their part filed the Respondents brief of argument on 29/4/09. At the hearing of this appeal, the respective counsel for the parties urged us to allow the appeal and to dismiss as the case may be.