Disable Preloader

CaseLaw

Nikagbate V. Opaye (2018) CLR 2(k) (SC)

Judgement delivered on February 9th 2018

Brief

  • Grounds of appeal
  • Leave to appeal
  • Judgement – Where a nullity
  • Preliminary objection
  • Leave of court
  • Section 233 (3) of the 1999 Constitution
  • Order 2 Rule 32 of the Supreme Court Rules

Facts

The appellant/plaintiff sued the respondents/defendants on a Writ of Summons and Statement of Claim for the following reliefs:

  • a.
    a declaration that the property known as No.71 Okere Road occupied by the defendant from which the defendant demolished a mud building to erect the present block building is property of the plaintiff under Itsekiri native law and custom and that any purported grant of the said property to the defendant by Eworitsemagbe Oki or by any other person or persons is null and void or is hereby avoided.
  • b.
    a declaration that the defendant residing at the said No 71 Okere Road, Warri is doing so as a trespasser being in occupation without the consent, authority or permission of the plaintiff.
  • c.
    an order ejecting the defendant from the said property and granting possession thereof to the plaintiff.
  • d.
    an order of perpetual injunction restraining the defendant his agents or servants or any person or persons claiming through him from breaking and entering into the said property or in any manner interfering with the enjoyment of the said property by the plaintiff or any Person claiming by or through him.
  • e.
    an order for general damages of N100,000 against the defendant.

Pleadings were filed and exchanged by counsel. The case eventually proceeded to trial with the first witness for the plaintiff giving evidence on 24 May 1993 before Obi J in a Warri High Court, Delta State. The plaintiff led evidence in support of his averments in his pleadings. The defendants did likewise in respect of their pleadings. The learned trial judge having listened to the parties and their witnesses found for the defendants. The concluding paragraph of the judgment reads:

In the result however, the action for reasons highlighted has failed and it is accordingly dismissed in its entirety.

Dissatisfied with the judgment, the plaintiff as appellant filed an appeal. It was heard by the Court of Appeal, Benin City Division of the Court of Appeal. That Court affirmed the judgment of the High Court when it concluded in its penultimate paragraph as follows:

"In conclusion, all the issues formulated for determination from the seven grounds of appeal having failed, I hereby refuse this appeal. It is unmeritorious and dismissed accordingly. I uphold the judgment of the lower Court which dismissed all the claims of the appellant.

This appeal is against that judgment.

Issues

  • 1.
    Were the learned Justices of Appeal right in affirming the judgment of Obi...
    Read More