Legalpedia Citation: (2010) Legalpedia (CA) 11462
In the Court of Appeal
HOLDEN AT CALABAR
Mon Jun 7, 2010
Suit Number: CA/C/137/2009
CORAM
PARTIES
1. NTUFAM PIUS E. ITITA2. NTUFAM CLEMENT E. EMAYIP3. NTUFAM MAURICE E. OKON4. NTUFAM EDET ITA OTU5. NTUFAM OKPA ITA6. NTUFAM PETER OKON IYAWE7. NTUFAM EMMANUEL B. ETIM8. NTUFAM THOMAS EFFIONG9. NTUFAM AUGUSTINE EKPE(For and on behalf of Abati Mfamosing and Abi-Mfam Villages) APPELLANTS
1. GOVERNMENT OF CROSS RIVER STATE2. AKANSOKO VILLAGE3. AKWA IKOT EFFANGA VILLAGE4. UNITED CEMEMT COMPANY OF NIGERIA5. ORASCOM CONST. COMPANY LTD. RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Plaintiffs/Appellants commenced a suit against the Defendants/Respondents vide a Writ of Summons seeking a declaration that the factory and quarry of the Unicem Nig. Ltd. belong exclusively to Abi-Mfam; that the State Government declaration that the UNICEM factory site is located in a land leased by Akansoko to the Forestry Commission is absolutely false, null and void. On the same date, the Appellants filed a Motion Ex-parte as well as a Motion on Notice seeking an interim injunction, among others. The Motion exparte was granted, while the Motion on Notice was adjourned. The 1st, 2nd and 3rd Respondents filed a Notice of Preliminary Objection. The Plaintiff filed a Motion seeking to amend the Statement of claim and the Court directed that the Plaintiff’s Motion be heard before the Preliminary Objections and awarded the sum of N10, 000.00, being cost to the Defendants. The applications were not taken until the suit was re-assigned to another judge on the request of the Appellants. The lower court ordered written addresses to be filed in respect of the preliminary objections. The learned trial Judge upheld the preliminary objection and struck out the suit. Aggrieved by the above ruling, the Appellants have approached this court vide a Notice of Appeal.
HELD
Appeal Allowed
ISSUES
Not Available
RATIONES DECIDENDI
JUDMENT AND ORDER, LAW OF EVIDENCE, WORDS AND PHRASES
JUDGMENT OF COURT- MEANING OF A JUDGMENT BEING “AGAINST THE WEIGHT OF EVIDENCE”
“When an appellant complains that a judgment is against the weight of evidence or that the evidence was not properly evaluated by the trial court, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the court. See Inwelegbu v Ezeani (1999) 12 NWLR (Pt. 630) 266, Mogaji v Odofin (1978) 480 91 at 93.”
COURT, PRACTICE AND PROCEDURE
RECORD OF COURT – PROCEDURE FOR CHALLENGING THE CORRECTNESS OF THE RECORD OF COURT
“An attack on the correctness of records is not done by way of arguments in the brief but through an affidavit duly sworn to challenging the records as incorrect. Onnoghen re-iterated the procedure for challenging the correctness or otherwise of the record of the court in Ogli Oko Memorial Farms Ltd. v N.A.C.B. (2008) ALL FWLR (Pt. 419) 400 when he stated at pages 413-414:
“Any person who is contending that the record of proceedings before an appellate court is not a fair record of what happened at the court of first instance must first formally impeach the record of proceedings. Where the record of proceedings is not formally impeached it is not open to the appellate court to speculate that other things happened in the trial which were not recorded in the record of proceedings ………………………….Panalpina World Transport (Nig) Ltd. v Wariboko (1975) 2 SC 29; State v Aigbanbee (1988) 3 NWLR (Pt. 84) 548; Animashaun v University College Hospital (1996) 10 NWLR (Pt. 476) 65.”
JUDGMENT AND ORDER, COURT, PRACTICE AND PROCEDURE
ORDER OF COURT – WHETHER AN ORDER OF COURT PERMITTING THE APPELLANTS TO MOVE A MOTION FOR AMENDMENT OF A WRIT OF SUMMONS WHEN THERE IS A PENDING PRELIMINARY OBJECTION ON THE JURISDICTION OF COURT IS BINDING
“I wish to state that the order of Effiong J. on 10/3/2008, permitting the appellants to move the motion to amend the Writ and Statement of Claim when the Preliminary Objections to the jurisdiction of the court were first in time was an exercise of discretion which will not be binding on Ikpeme J. to whom the suit was subsequently transferred at the request of appellants’ counsel. See Bulama V Fed. Republic Of Nigeria (2004) 12 NWLR (Pt. 888) 498; University Of Lagos V Aigoro (1984) 11 SC 154. And even if the order was a valid and subsisting order, the right so conferred on the appellants was a private right which they were at liberty to forgo. By allowing the Respondents to argue their preliminary objection without formally withdrawing the motion to amend the processes filed, all that learned counsel for the appellants did was to put the motion for amendment in abeyance pending the outcome of the ruling on the preliminary objections. If the objections are upheld and the suit struck out, there will be no more suit in existence and so the motion for amendment will go. If however the objections are overruled, learned counsel would then be at liberty to move his motion for amendment”.
CASES CITED
Not Available
STATUTES REFERRED TO
Court of Appeal Rules, 2016|Evidence Act, 2011|