Nwokoro V Titus Onuma (1999)

LAWGLOBAL HUB Lead Judgment Report

KARIBI-WHYTE J.S.C.

On the 6th February, 1990, this Court by a unanimous decision summarily allowed the appeal of the appellants from the decision of the Court of Appeal Division, Port Harcourt; set aside the judgment of the court below and ordered a rehearing in that court. We stated that the reasons for allowing the appeal will be given today. This I now proceed to do hereunder.

The point involved in this appeal is very short. But it is crucial and fundamental to the question of fair hearing and the validity of the hearing of an appeal in appellate courts based on the papers considered by the court.

The facts of this case are as short as the point involved. The substantive issue relating to the claim by the plaintiffs/respondents for a declaration of title, damages for trespass and perpetual injunction against the defendants/ appellants, is not here in issue. The contention of the appellants is that the Court below did not determine the appeal on its merits. Chief Williams, S.A.N., learned senior counsel in his formulation of the only question for determination, stated; it is “Whether the judgment of the Court of Appeal can be allowed to stand when the learned Justices of the said court have clearly failed to consider the arguments presented to them in the Brief filed in support of the defendant’s case.”

Appellants who were also appellants in the court below had pursuant to their appeal, by counsel, filed their brief of argument. On the 12th day of March, 1986, Chief Ogbonna learned counsel to the appellant applied for an adjournment to amend his brief of argument. The application was granted with N100 as costs to the respondents by a panel of the court of Appeal consisting of Aseme, Olatawura and Katsina-Alu, JJ.C.A. On a motion dated the 27th March, 1986, with a supporting affidavit dated 2/4/86 Chief Ogbonna applied to the court formally to amend the brief of argument exhibited as Exhibit A, and to deem the brief as amended duly filed subject to payment of necessary Court fees. The motion was fixed for argument for April 21st, 1986.

In an application dated 27th October, 1986, Prince Nsofor, learned counsel for the respondents prayed inter alia extending time allowed respondents to file their briefs in respect of this appeal, and deeming the briefs so filed as validly filed. There is no record of appellants’ application to amend their brief of argument having been heard by the court, for a determination whether it was granted or dismissed. It is however pertinent to observe that when this appeal came up for hearing in the court below on the 11th November, 1986, before Akpata, Abdullahi and Ogundere, JJ.C.A., Chief Ogbonna, learned counsel to the appellants stated that he was adopting his amended brief of argument dated 27th March, 1986. See p.338, 339 records of proceedings.

It became necessary for counsel to the appellants, Chief Ogbonna to A amend his original brief of argument, which omitted the important requirement of issues for determination in the appeal. In paragraphs 2, 3, 4, 5, 6 of the affidavit in support of the application to amend the brief of argument dated 2nd April, 1986, the following averments were made:-

That some errors and mistakes were contained in the brief dated 19/8/85 filed by the appellants in this appeal as it was discovered that our Solicitor in preparing our said brief failed to include the issues arising in the appeal and said he abandoned grounds VIII, IX and X of the grounds of appeal.

That there is need to amend our said brief to include arguments in grounds VIII, IX and X and also to state the issues arising in the appeal

That these omissions have been included in the brief and constitute the only amendments proposed in the appellants’ said brief.

That I have exhibited our said proposed amended brief dated 27th March, 1986 marked Exhibit “A” for purposes of clarity.

That the said arrangements are necessary for determining the real question in controversy in the appeal.

The motion, as I have already said, was fixed for hearing on the 21st April, 1986. This appeal was argued on the 11th November, 1986 before Akpata, Abdullahi and Ogundere, JJ.C.A.

In the lead judgment of the court read by Akpata, J.C.A., who after setting out the facts of the case and the grounds of appeal and issues involved went on to make the following observation,