Egbulefu Onyero & Anor V. Augustine Nwadike (2011)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

This is an appeal against the decision of the Court of Appeal, Port Harcourt Division, wherein the appeal of the plaintiffs was allowed, and an order of retrial de novo was made. The plaintiffs’ case at the then East Central State High Court was that the land in dispute formed part of a larger parcel of land known and called ‘UKATARA’ and belonged to his family who leased it to the 2nd plaintiff for a term of 99 years, and he has since then been the 1st plaintiff’s family tenant. The defendant somehow acquired the land through one Mr. Okorie Eloagu to whom the land was leased by the 1st plaintiff’s brother Azunna Onyero. The defendant is building on the land, and it is in view of the activities going on the land that the plaintiffs claimed the following reliefs against the defendant:-

“(i) A declaration of title to all that piece and parcel of land known as and called “UKATARA” land situate at Eziukwu-Aba Division of the East Central State of Nigeria which piece or parcel of land is delineated PINK in Survey PLAN NO. OKE/D50/74 filed together with this statement of claim.

(ii) N700.00 (Seven hundred Naira) being damages for trespass;

(iii) An injunction to restrain the Defendant, his servants or agents from trespassing into the said land by continuing with the building in dispute.”

The case of the defendant is that the 1st plaintiff s brother Azunna Onyero leased the land in dispute to Okoye Eloagu and a deed of lease was executed before a Magistrate on the 4th of November 1957. The defendant denied most of the allegations and claims of the plaintiffs, and stated that the said Okoye Eloagu with consent of the 1st plaintiff assigned his rights on the land to the defendant, and the defendant has since erected a storey building on the land. Two witnesses gave evidence for the plaintiffs’ case. The defendant did not adduce evidence. The learned judge appraised the evidence before him and entered judgment in favour of the plaintiffs. Dissatisfied with the judgment, the defendant appealed to the Court of Appeal which allowed the appeal thus:-

“In conclusion the appeal is allowed with an order of retrial de novo before ABA High Court not NJIRIBEAKO. The judgment of NJIRIBEAKO J in suit A/73/74 delivered on 10th day of July, 1981 is hereby reversed and set aside.”

The plaintiffs were dissatisfied again, and they have appealed to this court on two grounds of appeal, from which a single issue for determination was distilled. In compliance with the rules of this court, learned counsel for the parties exchanged briefs of argument which were adopted at the hearing of the appeal. The issue for determination reads as follows:-

“Whether the learned justices of the Court of Appeal were right in setting aside the entire judgment of the learned trial judge and making an order of a retrial de novo before another judge at the High Court, when there was no such relief or new triable issue before the Court of Appeal as well as the fact that the appeal before the Court of Appeal was not against the whole decision at the trial court”

Mr. Amadi, of counsel for the respondent, in the respondent’s brief of argument also raised a single issue for determination. The issue is:-

“Whether the learned Justices of the Court of Appeal were wrong in setting aside the judgment of the learned trial Judge and making an order for trial de novo before another judge of the Aba High Court of justice”

The submission of the learned counsel for the appellant is that the lower court erred by setting aside the whole judgment of the learned trial court, when the relief sought in the notice of appeal was:-

“That the judgment of the Aba High Court be varied by the inclusion of the relief of declaration of title sought by the plaintiffs/appellants as per paragraph 17 (1) of the statement of claim”

It is his contention that he did not appeal against the whole decision of the trial court, and the respondent did not cross appeal against the judgment seeking the setting aside of the judgment. He referred to the cases of Nurudeen Adebisi Adeye & Ors v. Chief Sanni Agbatogun Adesanya & Ors. 2001 2 SCNJ page 79. The learned counsel submitted that the court below was wrong when it held that the learned trial judge did not make any pronouncement whether to grant or refuse the declaration, and ordered a trial de novo, giving the following reason:-