The National Boundary Commission V. The Hon. Attorney-general Of Ondo State & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

The instant cross-appeal, like the main appeal (CA/B/135/2008), is a fall-out of the Judgment of the Federal High Court, Benin Judicial Division, delivered on June 10, 2008 in Suit No. FHB/C5/118/2006 between all the respective parties herein.

By the Judgment in question, the Lower Court, coram Chukura Nnamani, J; dismissed the Cross-Appellant’s and 1st Cross-Respondent’s Preliminary Objections (challenging the jurisdictional competence of the Lower Court), and granted all the declaratory and injunctive reliefs in favour of the 1st – 3rd and 5th – 15th Plaintiffs against the Defendants (Cross-Appellant, 1st & 4th Cross-Respondents), respectively. The Cross-Appellant was the 2nd Defendant in the Suit, and the 5th Respondent in the main appeal.

The Cross-Appellant’s brief of argument was filed on 23/12/13, but deemed properly filed and served on 10/3/15. It spans a total of 23 pages. At pages 5 – 6 of the said brief, three issues have been postulated, viz:

Issue I – In view of the fact that this action was commenced by Writ of Summons and that no evidence – oral or

documentary was adduced in support of the facts pleaded, whether or not the trial Judge was right in giving Judgment in favour of the 1st set of the Plaintiffs (1st – 3rd Respondents) and also by granting joinder when there was a pending motion for stay of further proceedings filed by the Appellant (Grounds 1, 2 and 3).

Issue II – Judging from the fact that there was a pending preliminary objection filed by the 2nd Defendant/Cross Appellant, whether the trial Judge was right when he dismissed the preliminary objection and held that the court has jurisdiction, substituted pleadings for evidence and thus held that the issue was a non-compliance with Section 8(2) of the 1999 Constitution (Grounds 4, 5 and 6).

Issue III – Having regard to the fact the action was commenced by Writ of Summons whether or not the trial Judge was right in converting the Writ of Summons to originating summons, thus resulting in the joinder of the 2nd set of Plaintiffs based solely on their motion for joinder, against operative rules of court (Grounds 7 and 8)

The issue No. 1 is canvassed at pages 6 – 9 of the said brief to the conclusive effect the 2nd set of Plaintiffs

did not lead evidence to establish their pleadings, thereby rendering their case otiose. The court is urged to so hold, and accordingly resolve the issue in favour of the Cross-Appellant.

The Issue No. 2 is argued at pages 9-16, to the conclusive effect that non-compliance with Section 8(2) of the 1999 Constitution was inappropriately invoked by the 1st – 3rd Respondents, and should thus be disregarded.

The Issue No. 3 was canvassed at pages 16-19 of the brief to the conclusive effect that the Lower Court clearly acted in adherence to the principle enunciated by the Apex Court in UCHENDU VS. OGBONI (1999) 5 NWLR (Pt. 603) 337 @ 352 per Uwaifo, JSC. The court is thus urged to resolve the said Issue in favour of the Cross-Appellant and accordingly allow the Cross-Appeal.

On the other hand, Chief I.O. Jemide, Esq; filed on 20/3/15, what he termed –

“5TH – 14TH RESPONDENTS’ REPLY TO CROSS-APPELLANTS’ BRIEF OF ARGUMENT.”