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EDWARD NIKAGBATE v. JOSEPH OPAYE & ANOR

(2018) LPELR-43704(SC)

In The Supreme Court of Nigeria

On Friday, the 9th day of February, 2018

SC.225/2010


Before Their Lordships

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria


Between

EDWARD NIKAGBATE
(For himself and on behalf of Nikagbate Oki family of Odeile Okere) - Appellant(s)

AND

1. JOSEPH OPAYE
2. SAMUEL OPAYE - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Civil Procedure.

FACTS:
This is an appeal against the decision of the Court of Appeal Benin Division.

The appellant/plaintiff sued the respondents/defendants on a Writ of Summons and Statement of Claim for some declaratory reliefs in Land. 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. Dissatisfied with the judgment, the plaintiff as appellant filed an appeal. It was heard by the Court of Appeal, Benin City Division. The Court affirmed the judgment of the High Court. Further dissatisfied with the decision, the Appellant appealed to the Supreme Court.

The Respondents filed a notice of preliminary objection challenging the competence of the grounds of appeal.

ISSUES:
The Court determined the appeal on the Respondents' preliminary objection challenging the  competence of the Appeal on the ground that all the six grounds of appeal filed by the appellant in the appeal were on facts or mixed law and facts and were therefore contrary to the provisions of Section 233 of the Constitution and so the appeal should be struck out since leave of the Court of Appeal or Supreme Court was not obtained before they were filed

DECISION/HELD:
On the whole, the Court found merit in the Respondents' preliminary objection and upheld same. The Appeal was accordingly struck out.


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