Etowa Enang & Ors V. Fidelis Ikor Adu (1981) LLJR-SC

Etowa Enang & Ors V. Fidelis Ikor Adu (1981)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

In February, 1970, the plaintiffs/respondents (hereinafter known as the respondents), filed a suit in the Calabar High Court claiming against the defendants/appellants (hereinafter known as the appellants) as follows:-

“1. Declaration of title to those pieces or parcels of lands known as and called “Mgbudu”, “Lebei”, “Ipenele” situate in Adadama in Obubra Division. The said pieces or parcels of lands in dispute will be completely described and delineated in a plan to be filed with the Statement of Claim.

2. 200 (Two Hundred Pounds) damages for Trespass to the said lands.
3. Injunction to restrain the defendants, and/or their servants and/or agents from further trespassing into the said lands and/or leasing the said lands to any tenants.”

Pleadings were ordered, duly filed and delivered. Both parties also filed plans of the lands in dispute which plans were received in evidence in the trial court. The plans indicated that there was really no dispute as to the identity of the lands in dispute. At the trial, both parties gave evidence and called several witnesses. It is pertinent, as will appear later in this judgment, to mention the representative character of this suit. The application of Fidelis Ikor Adu for an order of court to enable him sue in a representative capacity was strenuously resisted by the appellants, but on 20th May, 1970, the following order was made by the High Court, Calabar.

“Order: Application and order granted to enable the plaintiff to sue in a representative capacity for the benefit of and on behalf of all members of the Ba-Ikeghe family so interested without prejudice to the findings of fact of the trial court after pleadings have been filed and evidence adduced in the Suit”

(Underlining mine).It is not disputed that where there is a challenge to the capacity and/or authority of the plaintiff to sue in a representative capacity and the parties have joined issue on it in their pleadings, it is a matter to be resolved by the trial judge after hearing evidence. See Jeremiah Nsima v. Ole Nnaji and Ors. (1961) All NLR 441 at 443. At the end of the trial, this matter of representation of the Ba-Ikeghe family by Fidelis Ikor Adu, was not directly dealt with by the learned trial Chief Judge, but he seems to have disposed of it in his findings (contrary to the contentions of the appellants), that there was a Ba-Ikeghe family (not Ba-Ikeghe House) to which the appellants do not belong. In his judgment he also stated that “the Plaintiff is the Head of the Ba-Ikeghe family of Adadama, and sued for himself and as representing the entire members of the Ba-Ikeghe family.” The learned trial Chief Judge, Kooffrey, CJ., made several findings of fact in favour of the respondents. He granted them the declaration of title sought and N100 nominal damages for trespass. He refused the claim for injunction. Both parties appealed to the Federal Court of Appeal although it is part of the contention of the appellants in this court that no cross-appeal was in fact filed by the respondents. In a reserved judgment dated 1st August, 1979, the learned Justices of the Federal Court of Appeal (Ebosie, kazeem, JJCA and Douglas JCA (as he then was), dismissed the appeal of the appellants. They allowed the cross appeal and granted an injunction against the appellants. It is from that judgment that the appellants have appealed to this court. They filed grounds of appeal which I shall deal with in the course of this judgment. During the argument of the appeal in this court, learned counsel for the appellants abandoned Grounds 4 and 5 of the Grounds of appeal which were accordingly struck out. He argued grounds 1 and 2 and relied on his brief of argument with respect to the other grounds of appeal. We did not call on learned counsel for the respondents to reply.

In his brief of argument learned counsel for the appellants set down the issues arising in the appeal (which cover all his grounds of appeal), as follows:-

“(i) Whether the findings of the High Court based on the pleadings and evidence that the plaintiff is the head of Ba-Ikeghe (Royal) family is irrelevant in the determination of the Suit as determined by the Federal Court of Appeal.

(ii) Whether the Federal Court of Appeal is bound by the pleadings to the extent that it should not treat as irrelevant issues which the parties and the High Court have treated as relevant.

(iii) Whether it is an issue or not that the plaintiff had become the head of Ba-Ikeghe (Royal) family so as to possess the disputed parcels of land (as pleaded by the plaintiff and traversed by the defendants); and if it is an issue whether there was admissible evidence for the High Court to find that Plaintiff was such head.

(iv) Whether the findings of the take over of the headship of Ba-Ikeghe (Royal) family by the plaintiff from the 10th Defendant (Regent) dealt with a Chieftaincy issue over which the High Court had no jurisdiction.

(v) Whether the High Court and/or the Federal Court of Appeal were entitled to look at and consider the evidence of Chief Ezong Iyeme in Exhibit 4 to see how it materially differed from evidence of his alleged successor as established by the cross-examination of the Plaintiff, and also whether condition (a) (and) provisos laid down in Section 34(1) of the Evidence Law applicable was/were satisfied.

(vi) Whether there is defect in plaintiff’s root of title and whether his traditional evidence is inconclusive so as to oblige the High Court and/or Federal Court of Appeal to consider other acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the plaintiff was exclusive owner.

(vii) Whether the question of inheritance through the mother’s side (maternal or matrilineal succession) which the parties and High Court relied upon had no part to play in the case as determined by the Federal Court of Appeal.

(viii) Whether the plaintiff/respondent should have brought a substantive cross appeal in the Federal Court of Appeal rather than the cross appeal to vary decision.

(ix) Whether the High Court was right in awarding damages for trespass when the plaintiff failed to establish effective possession of the land through the traditional Head or Chief as pleaded and/or in finding trespass on the basis of denial of title of the plaintiff by the Defendants and whether the injunction granted by the Federal Court of Appeal and based on such trespass is justified”.

In my view, issue No. (v) above must be deleted as it arises from Grounds 4 and 5 of the grounds of appeal which as mentioned earlier were abandoned. Issues (i), (ii), (iii), (iv), (vi) and (vii) arise from Grounds 1, 2 and 3 of the appellants’ grounds of appeal. These variously, complain of the Federal Court of Appeal’s decision that the following questions were irrelevant for the determination of the Suit, i.e.,

(a) Whether the plaintiff/respondent was the Head of the Ba-Ikeghe family;

(b) The question of the take over of the headship of the Ba-Ikeghe family from the 10th Defendant;

(c) Whether the take over of the Headship of the Ba-Ikeghe family was a chieftaincy dispute;

(d) Whether a certified true copy of the judgment of the court as a result of which plaintiff/respondent claimed 10th Defendant surrendered the Headship of Ba-Ikeghe family ought to have been tendered;

(e) Whether the nature of inheritance (i.e., matrilineal or patrilineal succession) had any part to play in the suit.

It seems to me that in determining whether these issues were indeed irrelevant to the determination of the suit, one has to look closely at the parties to the action as well as the pleadings. One fact to which learned counsel for the appellants appears not to have fully adverted his mind is that the plaintiff in this suit is not Fidelis Ikor Adu but “Fidelis Ikor Adu, on behalf of himself and as representing the entire members of Ba-Ikeghe family of Adadama, Obubra Local Government Area.” (Underlining for emphasis). This was a representative action and the plaintiffs were the members of the Ba-Ikeghe family. The appellants may claim that the pleadings exchanged by the parties justify the undue importance they attached to Fidelis Ikor Adu in pursuing their defence, but I do not think such a claim would be borne out by a look at the relevant portions of the pleadings.

Learned counsel for the appellant’s specifically referred to paragraph 5 of the Amended Statement of Claim which the appellants denied. That paragraph provided as follows:-

“(5) The disputed parcels of land are the communal property of the Ba-Ikeghe family which family is an extended maternal kindred. The disputed parcels of land are and have always been in the effective possession of the members of the Ba-Ikeghe family through their traditional head or chief” (Underlining for emphasis)

It may be pertinent to refer also to paragraph 8 of the Amended Statement of Claim where the respondents pleaded as follows:-

“8. The parcel of land called Mgbudu (one of the three parcels of land in dispute) is cultivated every three years, the said land remaining fallow for another three years. The last cultivation by the plaintiff was in 1967. The plaintiff’s family have been cultivating and harvesting rice, yams, and cassava from time immemorial from the land. “Mgbudu” is bounded by parcels of land belonging to the defendants’ families as shown in Plan No. EPS/2484 (L.D.).”

No where in the Statement of Claim of the plaintiffs (i.e. respondents in this court) was it averred that the lands in dispute were the property of Fidelis Ikor Adu or that they were his property by virtue of his being the traditional head of the Ba-Ikeghe family. The issues set down above would certainly have been relevant if it had been the case of the respondents that the lands in dispute were the property of Fidelis Ikor Adu in his capacity as the traditional Head of the Ba-Ikeghe family, and further that the property passed from one head of the Ba-Ikeghe family to another. In such a case, whether he was the head of the Ba-Ikeghe family would be material, so would the question of the nature of inheritance and the question of the manner in which he became head of the family. If Ba-Ikeghe family was the true plaintiff in this suit, as indeed it was, the question of matrilineal inheritance would not arise as the family, as a family cannot inherit – The nature of inheritance can only arise in respect of the individual members of the family as between themselves.

The appellants appear to have been under a misconception as to the true meaning of paragraph 5 of the Amended Statement of Claim. The averment is that the plaintiffs/respondents have been in effective possession of the lands in dispute through their traditional head or chief. The appellants have interpreted this to mean that it is the traditional head or chief who is in possession by virtue of his being the chief. They claim that it shows that the plaintiff rested his claim on being the head or chief who having succeeded to the throne of his ancestors succeeds to the lands. I do not think that is the proper meaning. I would concede that the use of the word “through” in that paragraph has unfortunately contributed to the confusion. Nevertheless, I am inclined to the view that all it means is that the plaintiffs were averring that they are owners in possession of the lands in dispute and perhaps that Fidelis Ikor Adu as traditional head, holds them and shares out portions to the individual members of the family. In paragraph 1 of the Amended Statement of Claim, the plaintiff/respondent had averred that “the plaintiff (i.e. Fidelis Ikor Adu), is a farmer and the traditional head of the Ba-Ikeghe family in Adadama, Obubra District of the South Eastern State of Nigeria. The plaintiff resides in Atani, Adadama”. But as earlier stated in this judgment there is no assertion that the said Fidelis Ikor Adu personally owns the lands in dispute or that he maintained this action for himself alone. His evidence-in-chief at the trial contains several passages where he acknowledged his family, the Ba-Ikeghe family as owners of the lands in dispute and as cultivating them with yams, rice, etc. I must state that it seems to me that the learned trial Chief Judge perhaps unwittingly contributed to the importance which the appellants have attached to the position of Fidelis Ikor Adu. I do not see that it was in fact necessary, having regard to the parties to this suit, for him to have found as he did that “the plaintiff became the head of the family of Ba-Ikeghe as a result of the court action he took against the 10th defendant who was the caretaker over Ba-Ikeghe family during the infancy of the plaintiff”. There is also another portion of the judgment in which he concluded: “that being so I hold that the plaintiff as head of Ba-Ikeghe is entitled to the declaration sought” (Underlining mine). I am also fully aware of the fact that Fidelis Ikor Adu in his evidence-in-chief gave evidence of traditional history which tended to give the impression that the ownership and possession of the lands in dispute passed from one holder of the office of traditional head of the Ba-Ikeghe family to the next. The relevant portion of his evidence reads as follows: “the land of “Mgbudu” was founded by my family ancestor called Mgbama Ntomo. When he died he was succeeded by his own son Yemo Mgbama who was succeeded by Inagala who was a maternal member of Ba-Ikeghe family. Ezealo Letopo succeeded Iniagala Edu. Ebie succeeded Ezealo Letopo. When he died his brother Eya Ebia took over from him. This was succeeded by Ezung Ebo. Enag Eleme succeeded Ezung Ebo and he in turn was succeeded by Lebo Adahe. The Late Chief Ezong Iyeme succeeded Lebo Adahe. The 10th defendant succeeded Ezong Iyeme as a Regent of his father. As a regent he must be a paternal member of the family. All the other successions above mentioned were maternal (sic) ……

I took over the headship of the family from him in 1969 …….”This formed no part of the pleadings of the plaintiffs/respondents and goes to no issue. It is quite established now that evidence in relation to matters which have not been pleaded should not be received by the trial Judge. Also if the evidence led is at variance with the pleadings, it goes to no issue and should be disregarded by the court. See Chief Aboh Ogboda v. Daniel Adulagba (1971) 1 All NLR 68; George & Ors v. Dominion Flour Mills Ltd. (1963) 1 ANLR 71 at 77. See also the recent decision of this court in Chief Victor Woluchem and Ors v. Chief Simon Gudi & Ors. (1981) 5 S.C. 319 and 320.

It is trite law that parties are bound by their pleadings. It seems well settled too that the court is also bound by the pleadings. See Blay v. Pollard & Anor.(1930) 1 KB 628, 634; Kalio v. Daniel Kalio (1975) 2 S.C. 15 at 21. But from the state of the pleadings, particularly from the view I have formed of the true meaning of paragraph 5 of the Amended Statement of Claim, no issue was joined between the parties as to the headship of Ba-Ikeghe family. It is also clear to me that at no time was it the case of the respondents that the lands in dispute were the personal property of Fidelis Ikor Adu by virtue of his being the traditional Head and Chief of the Ba-Ikeghe family. What were in issue between the parties were, first, whether Ba-Ikeghe was a separate family (from which the appellants were excluded), with its own lands and juju or a house (made up of several sub families), which could not own land, and, secondly, whether the lands in dispute were the property of the Ba-Ikeghe family or the property of the Azianong family (appellants).The learned trial Chief Judge resolved these two main issues in favour of the respondents. I am therefore in entire agreement with their Lordships of the Federal Court of Appeal when they observed: “The decisions in the above two cases will no doubt be of great assistance to the defendants complaint if the plaintiff had made his claim on the basis that he is the head or Chief of the Ba-Ikeghe family; in which case he will be required to prove that fact by legally admissible evidence. But the plaintiff here sued on behalf of himself and representing the entire members of the Ba-Ikeghe family. There was evidence that he was authorised by the other members of the family to sue in a representative capacity for and on behalf of the entire family. The learned counsel was therefore right when he submitted that the complaint is irrelevant in the determination of the suit and for this reason this ground must fail.” I do not find it necessary to consider the cases of In re Obadina family and ors. v. Ambrose Family and Ors.(1969)1 All NLR 49 at 50 Alashe v. Ilu (1964) 1 All NLR 397; Owoniyi v. Omotosho (1961) All NLR 304 at 308; Minister of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe & Ors; Enwezor v. Onyejekwe (1964) 1 All NLR 14 at 17 cited by learned counsel for the appellants in his brief of argument to this court and in his argument before the Federal Court of Appeal as, although they support the principles of law for which they were cited, they deal with issues that are irrelevant to the determination of this suit. Grounds 1, 2 and 3 of the appellants’ grounds of appeal must fail and the answer to the issues raised by the appellants in this appeal, which I set down earlier in this judgment, is that the Federal Court of Appeal was right in holding them irrelevant to the determination of the claim before the court.

In ground 6 of their grounds of appeal, the appellants complain that the judgment of the Federal Court of Appeal (and that of the High Court) is against the weight of evidence. A ground of appeal such as this is of course an attack on the findings of facts. The decision of the Federal Court of Appeal is being challenged in as much as it upheld the findings of fact of the learned trial Chief Judge. It has been established by several authorities that a court of appeal must approach the findings of fact of a trial Judge with extreme caution. The principles under which a court of appeal can interfere have been well settled. A court of appeal which has not had the same advantage which the trial Judge has enjoyed of seeing the witnesses and watching their demeanour would only disturb the findings of fact of such a court where it is satisfied that the trial Judge has made no use of such an advantage. If the trial court has unquestionably evaluated the evidence before him, it is not for the Court of appeal to re-evaluate the same evidence and come to its own decision. See A.M. Akinloye v. Bello Eyiyola & Ors. (1968) NMLR 92 at page 95; Steamship Houtestroom (owners) v. Steamship Cagaporack (owners) (1927) AC 37; Fatoyinbo and Ors. v. Williams (1956) 1 FSC 87; Lawal v. Dawodu & Ors. (1927) 1 All NLR 270, 271, Agbedegudu v. Ajenifuja & Ors. (1963) 1 All NLR 109 (114). This court has in the recent case of Chief Victor Woluchem and Ors v. Chief Simon Gudi & Ors. (supra) at pages 326 – 330 and pages 295 and 296 reiterated these principles.

I would for purposes of emphasis set down the principles formulated by the House of Lords in Watt (or Thomas) v. Thomas (1947) 1 All ER 582: These are as follows: “Where a question of fact has been tried by a Judge without a jury and there is no question of mis-direction of himself by the judge, an appellate court which is disposed to come to a different conclusion on the evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the judge’s conclusions. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court either because the reason given by the trial judge are not satisfactory or because it unmistakably so appears from the evidence may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court”

The Federal Court of Appeal was justified in not interfering with the findings of fact of the learned trial Chief Judge. There was ample evidence to support the findings of fact that he made. On the issue whether there was a Ba-Ikeghe family existing separately, there was evidence from the plaintiffs and their witnesses (which the learned trial Chief Judge accepted), to the effect that Ba-Ikeghe family was the Royal family of Adadama and other sub families, including the appellant’s family – Azionong – were attached to it for protection.

There was evidence from Exh. 4 indicating that in 1958 Chief Ezong Iyeme, then traditional head of Ba-Ikeghe family, had taken action in the native court in respect of the same lands in dispute against some of the defendants. That showed that there was indeed a Ba-Ikeghe family separate from the family of the appellants. Besides, there was evidence from a witness for the appellants who testified that they knew that Fidelis Ikor Adu had once taken action against Edu Ezong claiming a juju by the name Nkwortefe. These witnesses had agreed that each family in Adadama had its own lands and juju. Another witness for the appellants admitted in evidence that he knew Ba-Ikeghe family and that Chief Ezong Iyeme had been head of that family. The learned trial Chief Judge was also, in my view, right in rejecting the contention of the appellants that it was Chief Ezong Iyeme who showed them these lands in dispute as their property when the same Chief Ezong Iyeme took an action in the customary court against some of them claiming the said lands in dispute as the property of Ba-Ikeghe family. While the appellants in the pleadings and in the evidence of the first defence witness claimed the lands in dispute as the property of the Azionong, one of their witnesses testified that the lands were the property of the same first defence witness No fault can be laid at the door of the learned trial Chief Judge for allowing the respondents to benefit from such weaknesses as there were in the appellants’ case. (See Akinola & Anor v. Oluwo & Ors. (1962) 1 All NLR pt.2 224, 227). He was clearly justified in concluding as he did as follows:- “From the confused nature of the evidence of the witnesses for the defence one could readily see a deliberate attempt to deny and cover up the obvious, that Ba-Ikeghe is a family with a separate existence, which owned its own land and juju. I hold that, that attempt has failed and the claim to this separateness is strengthened by the evidence of the defendants and their witnesses. The evidence also showed that the plaintiffs’ family Ba-Ikeghe has always been the owner of the three pieces of land. I do not believe that the late Chief Ezong Iyeme ever showed the defendants or their brother the late Ilang Ebono any portion of this land as their own.” It is therefore understandable that the learned Justices of the Federal Court of Appeal, after a review of the areas of appellants’ complaints on the learned Chief Judge’s findings of fact, found no grounds on which they could interfere with them.

The task of the appellants on this ground of appeal is made more difficult by the fact that there are before us concurrent findings of fact by both the learned trial Chief Judge and the learned Justices of the Court of Appeal. It is settled law that such concurrent findings, where there is sufficient evidence to support them, should not be disturbed. Kefi v. Kofi 1 WACA 284. This rule of practice can only be obviated if there is some miscarriage of justice and violation of some principle of law or procedure. The Privy Council in The Stool of Abinabina v. Chief Kojo Enyimadu (1953) 12 WACA 171 at 173 quoted with approval, a definition of the miscarriage of justice necessary for such a purpose previously given by Lord Thankerton in Scrimati Bibhabati Devi v. Kumar Ramendre Narayan Roy 62 TLR 549. This is that:- “The violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the findings cannot stand; or it may be the neglect of some principle of law or procedure, whose application will have the same effect.”

There is no such violation of any proposition of law or any principle of procedure in the instant case. This ground of appeal must also fail.In ground 7 of grounds of appeal the appellants complained:”that the Federal Court of Appeal erred in law in granting an injunction which was refused by the High Court merely on a cross appeal to vary decision when the plaintiff/respondent did not bring a substantive cross appeal.” Particulars of Error – Since the real nature and purpose of the cross appeal to vary entered by the plaintiff/respondent is to have the order of or judgment of the learned Chief Judge namely “I do not impose the order of injunction” set aside, the plaintiff/respondent should have brought a substantive cross-appeal”.

It is true that the records of appeal do not contain any indication of a cross appeal having been filed by the respondents. The records show a notice by the respondents of intention to contend that the decision of the court below (i.e., the High Court), dated 27th September, 1976, be varied as follows:-

“That the (defendants/appellants) personally and/or by their servants, agents and/or privies be restrained perpetually from repeating or continuing any of the acts of trespass complained of by the plaintiff/respondent shown on Plan No. EPS/2484 (L.D.) (ii) Plan No. EPS/2482 (L.D.) (iii) Plan No. EPS/2483 (L.D.) – Exh. 1,2 and 3).”

The grounds on which the respondents intended to rely were stated as follows:-

“(1) That the court erred in law in refusing to grant to the plaintiff an injunction against the defendants although the court found as a fact that the plaintiff was entitled to it and the evidence support the claim for an injunction.

(2) That the decision not to grant an injunction against the defendants is against the weight of evidence.”

Also in the record of appeal is an item under the settlement of records headed “Cross Appeal Notice by Respondents”. The respondents claim to have brought this notice pursuant to order VII rule 13 of the Rules of the Federal Supreme Court, 1961, then applicable to the Federal Court of Appeal. That Rule actually deals with cross appeal notice of contention that judgment should be varied or should be affirmed on other grounds. Under the same Rules, Rule 2 deals with all appeals including cross-appeals. It states as follows:-

“2(1) All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called “the Notice of Appeal”) to be filed in the Registry of the court below which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the court below is complained of …… and shall state also the exact nature of the relief sought and the names and addresses of all parties directly affected by the appeal …….”

There is in my view a great difference between variation of a judgment and what the respondent wished for at the Federal Court of Appeal. A variation tends to deal with accidental slip or changes in the terms of the judgment. The terms of the notice set down above, and the kind of relief which the Federal Court of Appeal was to grant, indicate that what the respondent embarked on was a cross-appeal against the decision of the trial Chief Judge in refusing to grant an injunction. In that case the application ought to have been brought under Order VII Rule 2 of the Federal Supreme Court Rules, 1961, and not under Order VII Rule 13. There was in my view a procedural irregularity. In African Continental Seaways Ltd. and Nigerian Dredging Roads and General Works Ltd. (1977) 5 S.C. 235 at 247, this court had quite emphatically stated that a party seeking to set aside a finding which is crucial and fundamental to a case can only do so through a substantive cross-appeal and not by an application to vary. Yet when the cross appeal came up for hearing before the Federal Court of Appeal, the attention of the court was not drawn to this. The record of that court shows the following entry: “It is observed that although item 10 in the settlement of Records at p. 143 of the Records speaks of “Cross Appeal Notice by respondents”, the notice itself was not compiled as part of the record. The appeal will therefore be adjourned for further hearing of the cross-appeal and the reply of the respondents.” The cross appeal was subsequently heard and both learned counsel for appellants and respondents addressed the court on the substantive issue before that court reached its decision. This point of the irregularity was therefore never taken in the court below. That does not of course debar the appellants from raising it here as they have now done. It is now settled law that this court will allow a party to raise a point not raised in the court below if it is a point of substantive or procedural law which needs to be allowed to avoid a miscarriage of justice. See K. Akpene and Barclays Bank of Nigeria Ltd. and Anor.(1977) 1 S.C. 47. It is certainly not open to the learned counsel to the respondents to contend as he does in his brief that “the competence of the cross-appeal by the respondent was not raised as preliminary objection by the defendants/appellants in the Federal Court of Appeal. It cannot therefore be made an issue of a further appeal to the Supreme Court”. I agree with learned counsel for the appellants that the proper time the learned counsel for the respondent should have raised such a contention was when an application was made to this court for leave to argue this new point. That was the practice followed in Babesi Djukpan v. Rhardadjor Orovuyovbe and Anor (1967) 1 All NLR 134 at 137 or (1967) NMLR 287 at 289.

To come back, however, to the main issue in this ground of appeal, I see nothing more than a procedural irregularity such as this court has repeatedly stated, ought not to stand between it and doing justice between the parties. (See Surakatu v. Nigerian Housing Development Society Ltd. (1981) 4 S.C. 26). The notice filed by the respondents before the Federal Court of Appeal was in substance an objection to the decision of the learned trial Chief Judge not to grant an injunction. This can be seen quite clearly from the grounds of appeal stated therein as well as the nature of the variation which the Federal Court of Appeal was to grant. The Federal Court of Appeal took the cross appeal and heard argument on the merits from both learned counsel for the appellants and respondents on the substantive issue and gave its decision. The appellants who were not satisfied with that decision have appealed against it to this court and it forms ground 8 of the grounds of appeal. I do not therefore regard this point as substantial, and I would therefore hold that this ground of appeal also fails.

In the last ground of appeal, ground 8, the appellants complain that:”The Federal Court of Appeal misdirected itself in law and fact in ordering injunction merely on the ground that nominal damages were awarded for trespass without appreciating the fact that the learned Chief Judge awarded damages for denying the title of the plaintiffs which is not an act constituting trespass to land in law.”

This ground of appeal appears to raise a matter of substance as I agree with learned counsel for the appellants that denial of title of the plaintiffs as landlords is not an act constituting trespass to land for which damages can be awarded. Such an act may be a ground for forfeiture. It is necessary, however, to have a close look at the decision of the learned trial Chief Judge. His reasons for refusing to grant injunction can be seen from that part of his judgment where he said “I do not impose the order of injunction because it would appear that had the defendants not denied the title of the plaintiff they would have been allowed to remain on the land and that they have been on the land and have made farms there, the fruits of which they must be allowed to reap except that they may not continue in the future on the land without the permission of the family of Ba-Ikeghe.” To put this passage in its proper perspective, it may be necessary to look at one other passage of the said judgment. In it the learned trial Chief Judge said:- “I hold therefore that Ba-Ikeghe family did not surrender the lands now in dispute to the defendants or any of them and that the defendants merely decided to crash into the lands of the plaintiff may be because of their numerical strength.” If the appellants crashed into the lands in dispute and perpetrated acts such as were complained of by respondents in paragraphs 9, 10 and 13 of the Amended Statement of Claim they would be liable for trespass for which damages would be awarded. The learned trial Chief Judge awarded N100 nominal damages for trespass. That award must be for trespass based on his findings as set down above and not on any denial of title by the appellants. I agree with the Federal Court of Appeal that he ought to have granted an injunction.If there is a challenge to possession and a claim in trespass is founded and damages awarded then an order of injunction must follow to stop a perpetuation of the damage complained about. This court has in Obanor v. Obanor (1976) NMLR Vol. 1 at 39 at 43 decided that, where damages are awarded for trespass to land and there is an ancillary claim for injunction an injunction will be granted. This is to prevent multiplicity of actions and also to prevent irreparable damage or injury or irremediable mischief. The award of damages was in my view justified for the reasons given above. This ground of appeal also fails. The result is that the appeal fails and it is hereby dismissed. The judgment of the Federal Court of Appeal, Enugu Judicial Division dated 1st August, 1979 is hereby affirmed. There will be costs against the appellants which I assess at N300.

G. S. SOWEMIMO, J.S.C.: I am in agreement with the judgment now delivered by my learned brother Nnamani, JSC., the preview of which I have had the privilege of considering.The complaints by the appellants were mainly on the concurrent findings of fact of the courts below. As pointed out by my learned brother, in his judgment, the circumstances under which this court would consider such complaints are set out, and I do not wish to repeat them. When a new ground of appeal in law has been raised in the Supreme Court for the first time by the appellant, he must satisfy this court that this ground could not have been raised in the courts below, and that, if raised before this court, the main purpose was to avoid possibility of a miscarriage of justice. My learned brother had treated this matter quite clearly on settled principles of law and practice. I agree that the appeal be dismissed. I also agree that the judgment of the Court of Appeal be affirmed and the order for costs made by my learned brother in his judgment should be the order of this court.

C. IDIGBE, J.S.C.: My Lords, for the reasons given by my learned brother Nnamani ,JSC., in the judgment just read by him, a preview of which I have already had, I would also dismiss this appeal. I endorse the orders proposed by my learned brother in the said judgment.

A. O. OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Nnamani, JSC. I agree with it as it conveys fully my opinion on the issues raised in this appeal. For the reasons stated in the said judgment, I would also dismiss the appeal and I hereby dismiss it. I also find myself in entire agreement with the order as to costs in this appeal made by my learned brother, Nnamani, JSC.

K. ESO, J.S.C.: I have had the privilege of a preview of the judgment just delivered by my brother, Nnamani, JSC., I agree that the appeal be dismissed as it is devoid of merit. I also agree that costs of N300.00 be awarded the respondents.

SC.64/1980