IN THE SUPREME COURT OF NIGERIA

HOLDEN AT ABUJA

ON FRIDAY 7TH DAY OF MARCH, 2003

BEFORE THEIR LORDSHIPS

SALIHU MODIBBO ALFA BELGORE

IDRIS LEGBO KUTIGI

MICHAEL EKUNDAYO OGUNDATE

ALOYSIUS IYORGYER KATSINA-ALU

UMARU ATU KALGO

SAMSON ODEMWINGIE UWAIFO

JUSTICES, SUPREME COURT

SC. 25/1997

BETWEEN:
JOSEPH EWETE ) ... APPELLANT

AND
PAUL GYANG RESPONDENT

(JUDGMENT Delivered by M.E. Ogundare, J.S.C.)
"An application for leave to appeal from the High Court sitting in its appellate jurisdiction to the Court of Appeal is an interlocutory application in the appeal to the Court of Appeal and not one in an appeal to the High Court from a lower Court". So held the Supreme Court in this case.

The appellant as plaintiff had in 1988 in the Upper Area Court, Jos sued the defendant claiming.

A declaration that the plaintiff was the rightful and exclusive owner of the property situate and known as No T45A Laranto Village. Jos covering a total area of 0.012 hectures.

A perpetual injunction restraining the defendant, his servant and agents from trespassing into or remaining in occupation of the said property.

The sum of N4,000 being general damages for trespass.

The case went to trial and at the conclusion the trial court gave judgment in favour of the plaintiff against the defendant and declared the plaintiff the rightful owner of the land. It also awarded N1,500 against the defendant and cost orders in the sums of N140 plus N100 for Counsel appearance and N30 as taxi fare to locus in quo.

The defendant made fruitless applications to both High Court and the Court of Appeal to appeal against the said judgment. He finally applied to the Upper Area Court, Jos, the trial court for order to set aside the judgment on the ground that there was a fundamental defect on the issue of jurisdiction. Moreover that the judgment was obtained by fraud. After a protracted hearing, the Upper Area Court granted the order and set aside it's own judgment, ordering that the case be heard de novo.

The plaintiff appealed to the High Court of Plateau State, Jos. The Court dismissed, the appeal. The plaintiff further appealed to the High Court for leave to appeal to the Court of Appeal, which application was granted.

Following the appeal to the Court of Appeal, arguments from counsel to both parties were taken and in a ruling the appeal was struck out with costs.

Against that decision, the plaintiff further appealed to the Supreme Court on two grounds. The thrust of the argument of Mr. Ofodile Okafor, SAN, was that section 63(1) of the High Court Law of Northern Nigeria (applicable in this case) was inconsistent with Section 273 of the 1999 Constitution.

Mr. Pinheir, leading counsel for the defendant submitted that Sections 62 and 63 of the Law were indivisible. But he conceded that by virtue of section 116 (1)(0) of the said law, a single judge of the High Court could sit to hear interlocutory matters in an appeal. He urged the court to dismiss the appeal.

However, Ogundare JSC quickly corrected Mr.. Pinheiro that sections 62 and 63 (1) of the law in question were not divisible. While Section 62 covers appellate jurisdiction, section 63 deals with the composition of the court when hearing such appeals.

In Conclusion, the Supreme Court held that "Although this court has the inherent power to depart from its earlier decisions for compelling reasons which period them erroneous, it will not do so readily or without hesitation or in the absence of proof that the pervious decisions were clearly erroneous and against the public good and welfare".

In view of the foregoing, the appeal failed and was thereby dismissed with N10,000 costs to the respondent.

G.Ofodile - Okafor, SAN, S.Oyawole and E.O. Okoro with him for the appellant.

A.A.U. Pinheiro, A Kamou with him for the respondent.