Ezebilo Abisi & Ors Vs Vincent Ekwealor & Anor (1993)

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OGUNDARE, J.S.C.

By a writ of summons issued in the Onitsha Judicial Division of the High Court of Anambra State of Nigeria, the plaintiffs (who are now respondents before us) for themselves and on behalf of the people of Umuakwo Ikenga Nando, sued the defendants (now appellants) for themselves and on behalf of Abube lkenga Nando claiming as subsequently amended:

1. A declaration that the plaintiffs are the persons entitled to ask for customary rights of occupancy to the piece or parcel of land verged violet on Plan No. MEC/168/61 minus the area verged blue lying within it.
2. N1,000.00 general damages for trespass.
3. An injunction to restrain the defendants, their servants and agents from further building on the land or farming thereon or utilising economic trees thereon without the consent of the plaintiffs or in any way doing anything on the land inconsistent with the plaintiffs’ ownership and possession of the said land.

Pleadings having been ordered, were filed and exchanged by the parties. The plaintiffs, with the leave of the trial court, amended their statement of claim. The action subsequently proceeded to trial on the plaintiffs’ amended statement of claim and the defendants’ statement of defence. By paragraph 26 of the amended statement of claim the plaintiffs’ final claims read as follows:

“(a) A declaration that the plaintiffs are the people entitled under the Land Use Decree, 1978 to apply for customary right and certificate of Occupancy in respect of the land verged violet or purple minus the area verged blue on Plan No. MEC/168/61 now reproduced in Plan No. ECAS 170/78.

(b) N1,000.00 damages for trespass.

(c) An injunction to restrain the defendants, their servants and agents from further building on the land or farming thereon or utilizing economic trees thereon or going on the land without the consent of the plaintiffs or in any way doing anything on the land inconsistent with the plaintiffs’ customary right of occupancy under the Land Use Decree or ownership and possession.”

At the trial, the learned trial Judge, Awogu, J. (as he then was) had ruled, following submissions of leading counsel for the parties, that

“The decision of the Supreme Court in 0/115/61 (S.C. No. 304/65), is reported in 1978 1 S.C. at P.9. One of the issues raised and dealt with in that judgment appears to be similar to the averments in paragraphs 8, 9,10 and 11 of the amended statement of claim in the present case, and is the gravamen of the issue estoppel which leading counsel for the plaintiffs now wants resolved as to the quantum of proof. It is my view however, that paragraph 4 of the statement of defence properly joins issues with the plaintiffs on the material questions which I now have to try. Besides, having regard to the chequered history of this case, including a Privy Council judgment in the three-cornered fight and two Supreme Court judgments involving the present parties, a determination on issues which may well still loom large, will not at this stage be in the interest of justice. It is my view therefore that the trial should take the normal course. The case of the plaintiffs may now proceed.”

The 1st plaintiff and three other witnesses testified in support of plaintiffs’ case. Three witnesses testified in support of the defence. After addresses by leading counsel for the parties the learned trial Judge, in a reserved judgment, found against the plaintiffs and dismissed their case in its entirety.

Being dissatisfied with this judgment, the plaintiffs appealed to the Court of Appeal of Enugu Division upon eight grounds of appeal. In accordance with the rules of that court written briefs of arguments were filed and exchanged by the parties and after oral arguments by learned leading counsel, the Court of Appeal (Kutigi J.C.A.) (as he then was) Katsina-Alu and Uwaifo, JJ.C.A) allowed the appeal, set aside the judgment of the trial High Court and entered judgment in favour of the plaintiffs in terms of their claim. More will be said in the course of this judgment on the grounds of appeal to the Court of Appeal and the briefs filed before that court.

The defendants have now appealed to this court upon five original and one additional, grounds of appeal. These grounds read:

“(1) The Court of Appeal erred in law in deciding the appeal on an issue which is not related to a ground of appeal (page 12 line 16 et seq of the judgment)

PARTICULARS OF ERRORS

(a) Order 3 rule 2 (1) and (3) stipulates the filing of a Notice of Appeal “which shall set forth the grounds of appeal” on which the appellant intends to rely.