Egbulefu Onyero & Anor V. Augustine Nwadike (2011) LLJR-SC

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:-

“Since the lower court made no pronouncement whether to grant or refuse the declaration, it will be invidious on the part of this court to grant the prayer as such an exercise will be ultra vires.”

According to the learned counsel the learned trial judge had made a pronouncement when in his judgment he posited thus:-

“In the present case, a declaration of title to the land in dispute was not part of the plaintiffs’ claim. There was no application to amend the writ and therefore the court cannot take any notice of paragraph 17 (1) of the statement of claim which is hereby struck out.”

It is a further submission of the learned counsel that the learned trial judge having struck out the said paragraph 17(1) of the statement of claim, he had made a pronouncement, and refused to grant the said declaration of title. On the principles governing an order for trial de novo, reliance was placed on the case of Patrick Adesomwan v. G. O. Aiwerieba & Anor 1996 3 SCNJ page 1.

In replying the above submissions, the learned counsel for the respondent has submitted that the lower court was right in setting aside the judgment of the learned trial court and ordering a trial de novo. His reasons being that a court will not grant to a party a relief he did not seek, and an appellate court will not hear an appeal or make decisions in respect of an appeal on matters that did not arise from the decision of the lower court. He placed reliance on the cases of Engineer Goodness Agbei & Anor v. Audu Ogbeh & ors 2006 5 SCNJ page 314 and R. I. Ikweki & Ors. v. James Ebele & Anor 2005 2 SCNJ 242.

According to learned counsel the learned trial court did not make a pronouncement as to whether or not to grant the declaration of title sought by the appellant, and even though there was no cross appeal by the respondent at the Court of Appeal, the justices were not bound to swallow hook line and sinker the submissions of the appellants and enter judgment. He further argued that the trial court did not try the issue of declaration of title to the land simply because the court was under the mistaken impression that the appellants ought to have amended their Writ of Summons rather than including the Declaratory relief in their statement of claim. Having not tried that issue, it was a new issue before the Court of Appeal which requires the remittance of the case to the trial court for trial de novo before another judge.

Indeed appellants in their Writ of Summons sought for only:-

“(a) N700.00 (Seven hundred Naira) damages for the said trespass.

(b) Injunction to restrain the Defendant, his servants and workmen from repeating or continuing the said trespass or in any way interfering with the plaintiffs’ possession of the said land.”

It was not until when they filed their statement of claim that they added the relief of declaration of title to the land in dispute, a relief that is far weightier than those sought in the Writ of Summons. In fact in most cases the reliefs sought in the writ are invariably hinged on the claim for declaration of title. Be that as it may the appellants sought this relief after taking out the writ of summons. Authorities abound that a statement of claim supercedes a writ of summons, and so the content of a statement of claim is what a learn trial judge should consider in determining a case. See Otanioku v. Alli 1977 11-12 SC. 9. Udechukwu v. Okwuka 1956 1 F.S.C. 70, and Chigbu v. Tonimas (Nig.) Ltd.1999 3 NWLR part 593 page 115. Now, what facts did the plaintiffs plead in their statement of claim in support of the claim for declaration of title to land, and were issues joined. I will reproduce the salient averments at this juncture. They read:-

“5. The land in dispute which forms part of a large parcel of land known as and called. “UKATARA” belonging to the Onyero family of Eziukwu Aba was leased to the 2nd Plaintiff for a term of 99 years at an annual rent of N1.00. (one Naira).

6. About 20 years ago there were negotiations between the first Plaintiff’s brother Azunna Onyero (now deceased) and one Okorie Eloagu for the lease of the land in dispute to him.
7. The first Plaintiff’s deceased brother and or his successor was entitled to an annual rent of N1.00 during the currency of the term to be granted by the lease.
8. After the said negotiations referred to in paragraph 6 of this statement of claim, and before the Nigerian Civil War the said Okorie Eloagu was not…Until, sometime in January, 1974, when he the said Okorie Eloagu came and offered arrears of rents of 7 years to the 1st plaintiff.
9. Sometime in (sic) about January, 1974 Mr. Eloagu approached the first Plaintiff to accept money covering rent for 7 years; but the first Plaintiff refused the money and told Mr. Eloagu that the land now belonged to the second Plaintiff.”

The defendant in his statement of defence averred the following:-

“4. In particular answer to paragraphs of the statement of claim, the defendant avers that the first Plaintiff by deed of lease executed before a Magistrate on the 4th of November 1957, leased the land now in dispute to the defendant……

5. At a later date the aforesaid Okoye Eloagu with consent of the 1st plaintiff assigned his rights and interests in the land now in dispute to the defendant. Defendant will at the trial tender and rely on the aforesaid mentioned Deed of Lease and Deed of Assignment.
6. As for paragraph 17 (seventeen) of the statement of claim the defendant avers that the plaintiffs are entitled to any of the reliefs which they are claiming.”

Issues were joined, and the plaintiffs testified in support of their joint averments, at the end of which the learned counsel for the plaintiffs/appellants closed their case and asked for judgment. It is worthy of note that the defendant and his counsel (according to the record) had stopped appearing in court, hence no evidence of the defendant was recorded, and the learned trial judge adjourned the case for judgment.

The learned trial judge before evaluating the evidence before him reviewed the reliefs sought by the plaintiffs/appellants in the writ of summons vis a vis the statement of claim, thus:-

“A claim for declaration of title was not part of the original claim stated in the writ of summons. This new claim was included in the statement of claim without an order of court where a plaintiff wishes to include claims which have not appeared in the writ of summons served on the defendant he has to apply for an amendment of the writ to include the fresh claim. Where he fails to do so and arbitrarily sets up a fresh claim in his statement of claim the court will not take any cognizance of it. It will be completely ignored.”

Thereafter, the learned judge struck out the said paragraph 17(1) supra, and it is on record that he did not consider the merit or demerit of the relief contained in the said paragraph. Having struck out the said relief, the learned trial judge discountenanced the relief and based his judgment on the reliefs in the writ of summons. It is instructive to note that the appellants did not appeal against the striking out of the controversial relief, as can be seen from the notice of appeal of the appellants in the Court of Appeal. The single ground of appeal in the notice of appeal merely quarrels with the learned trial judge’s refusal to grant the relief as it reads thus:-

“ERROR IN LAW: The learned trial judge erred in law by refusing or failing to grant the relief of declaration of title sought by the Plaintiffs/Appellants on the ground that paragraph 17(i) of the statement of claim was inconsistent or at variance with and not contained in the writ contrary to established judicial authorities that the statement of claim supercedes the writ.”

In fact none of the particulars of error touched on the striking out. It is instructive to note that apart from striking out the relief for the declaration of title to land, it definitely did not pronounce on whether it has granted the said relief or not. That being the position of the appeal, the lower court was in firm ground when in the lead judgment it made the following observation:-

“To meet the justice of the case as the lower court struck out the claim of declaration to statutory right of occupancy adopting the statement of LORD DENNING in the Privy Council case of MACFOY v. U.A.C. 1962 A. C. 152 that you cannot build something on nothing as it is bound to collapse since the lower court made no pronouncement whether to grant the prayer such an exercise will be ultra vires the appellate powers of this court.”

I subscribe to the above. The order of trial de novo made by the lower court is in order and cannot be faulted in the circumstance of this appeal. The single issue in this appeal is resolved in favour of the respondent, and the grounds of appeal to which it is married fail. The end result is that this appeal fails in its entirety. The judgment and order of the Court of Appeal for a trial de novo is hereby affirmed. I assess costs at N50,000.00 in favour of the respondent, against the appellants.

SC.150/2004