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Peters v. Jackson

EZEKIEL PETERS

V

ANIEDI UDOFIA JACKSON

COURT OF APPEAL

( CALABAR DIVISION )

D. ONYEJIFE EDOZIE, JCA ( Presided and Read the Lead Judgment )

OKWUCHUKWU OPENE, JCA

SIMEON OSUJI EKPE, JCA

CA/C/141/99

TUESDAY, 26TH JUNE, 2001

APPEAL - Issues for determination - Need for to be hinged on grounds of appeal - Need for grounds of appeal to relate to decision appealed against

APPEAL - Need for to be premised on a decision of lower court appealed against - Whether there can be appeal against what had not been decided against a party

COURT - Appellate court - When retrial order will be made thereby

EVIDENCE - Affidavit evidence - Conflicts therein - Whether authentic documentary evidence can be called to resolve same

EVIDENCE - Affidavit evidence - Conflicts therein - Whether oral evidence can be called to resolve same

PRACTICE AND PROCEDURE - Originating summons instituting actions thereby - When appropriate - When inappropriate

Issues:

1.            Whether it was competent for the court below to wade suo motu into the domestic province of adequacy of consideration especially as the contract was under seal.

2.            Whether the findings of the court below that only the sum of N600,000 was paid by the appellant to the respondent was justified.

Facts:

The appellant herein filed action at the High Court of Cross River State, sitting in Calabar claiming declaratory reliefs, damages and injunction against the respondent. The suit commenced by originating summons sought for the determination of the court the following question: whether it is lawful for the defendant after assigning the totality of his interest in the property by a valid deed of assignment and for valuable consideration to the plaintiff to keep on exercising ownership rights over the same property, the subjectmatter of the assignment and the consequences of such action in the circumstances.

The appellant filed an affidavit of 15 paragraphs with six exhibits while the respondent filed a counter-affidavit of 23  paragraphs with three exhibits. The appellant also filed a further-affidavit of 12 paragraphs with seven exhibits while the respondent also filed a further and better affidavit of 9 paragraphs thereto. Neither parties called oral evidence in support  of all their averments in the various affidavits.

After the conclusion of counsel addresses, the learned trial Judge, dismissed all the claims of the appellant. The appellant being dissatisfied with the said decision has filed this appeal.