Obed Okpala & Anor V. Richard Ibeme & Ors. (1989)

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NNAEMEKA-AGU, J.S.C.

This appeal by the plaintiffs, Obed Okpala and Julian Okpala, against the defendants raises one straight issue: that is, whether the Court of Appeal was right to have substituted an order of dismissal of the plaintiffs’ claim for that of a non-suit made by an Awka High Court.

The parties to the suit are of some importance for the determination of this issue. The two plaintiffs, Obed Okpala and Julian Okpala, brought this action in an Awka High Court “for themselves and for and on behalf of Umu-Okpala family of Amakwa, Eziaja Village, Neni.” The action was against Richard Ibeme and nine others who were sued and defended the action “for themselves and for and on behalf of Umueze Village, Neni.” The action was fought throughout in these representative capacities.

Before I deal with the facts which led to this appeal, I would wish to dispose of one procedural point which arose during argument. The plaintiffs (hereinafter called appellants) had through their former counsel, Mr. G.N.A. Okafor, filed a notice of appeal dated the 29th day of July, 1985 without obtaining the leave of court. As the ground of appeal raised questions of fact and mixed law and fact, their present counsel, Senator N.N. Anah, moved this Court for extension of time to give notice of appeal; extension of time to apply for leave and for leave to appeal; that notice and grounds of appeal already filed without leave he deemed to be properly filed; and for leave to file and argue additional grounds of appeal exhibited to the motion paper.

I may mention that in the original notice of appeal, which was considered to be nullity, the appellants made it clear that the relief they were seeking in this appeal was “that the decision of the Court of Appeal be set aside and that an order striking out he substituted for an order of dismissal.” In their brief of argument they made it clear that what they wanted was a restoration of the non-suit made by the court of trial after setting aside the order of dismissal made by the Court of Appeal. But as it turned out, the notice of appeal filed with the leave of Court did not contain the “Relief Sought.” This was clearly in contravention of the provision of Order 8, Rule 2 of the Supreme Court Rules, 1985, and contrary to Form 12. When this point was brought to the notice of counsel for the parties after the conclusion of their arguments, Senator N.N. Anah, for the appellants orally applied to amend the notice of appeal in order to include the “Relief Sought.” Mr. Ezeuko, for the respondents, did not oppose the application. The Court then reserved ruling till judgment.

There are good reasons why the application should be granted. To begin with, much as the filing of a notice of appeal which is in accordance with Order 8 Rule 2 of the Rules as well as Form 12 is a necessary prerequisite for the hearing of an appeal, the Rules provide that a notice of appeal may be amended at any time (see Order 8 rule 4). The respondent has not taken any objection on the notice as filed: it was a point raised by the Court itself. Also, the appeal had been fully argued before the defect was detected. In the circumstances, in the interest of justice, the application is granted. The notice of appeal as filed is, therefore, amended by inserting immediately after the fourth ground of appeal the following words:

“4. Relief Sought From the Supreme Court: that the order of dismissal by the Court of Appeal be set aside and one of non-suit substituted.”

The facts which led to this appeal can be summarised briefly. The appellants who were plaintiffs in an Awka High Court of Anambra State brought an action against the defendants claiming as follows:

“(a) Declaration of title to the plaintiffs’ piece or parcel of land called “ANI OKPALA” (otherwise known as “ANI NWEKE OKPALA”) situate in Amakwa family of Eziaja village in Neni, Njikoka Division, a plan of which will be filed in this suit. The land is of the annual value of N10.00

(b) N200.00 (Two Hundred Naira) being special and general damages in that the defendants on the 16th day of February, 1974 broke and entered on the said plaintiffs’ land, destroyed economic trees, dug pits anti committed indiscriminate acts of wanton damage thereon.

(c) Perpetual Injunction to restrain the defendants, their servants and/or agents from further committing acts of trespass on the said land.”

The appellants filed their statement of claim of which I need to set out only paragraphs 1, 2, 3, 4, for the limited issue raised in this appeal. Those paragraphs aver as follows:

“1. The plaintiffs who are natives of Neni in Njikoka division and reside in the same sue for themselves and on behalf of the members of Umu-Okpala (fully called Umu Okpala Echeobu) family Amakwa Neni.

2. The defendants who are also natives of Neni aforesaid and reside in the same are sued representatively for themselves and on behalf of the members of Umueze village, Neni.
3. The land in dispute which is called “Ani Nweke Okpala” is situate in Umu Okpala family Neni aforesaid and the exact area boundary and extent of the said land are clearly shown delineated and verged pink in Survey Plan No. un 392 filed with this Statement of Claim. The annual value is N10.00.
4. The land in dispute is bounded on the north by the rest of plaintiffs’ land on the west and south by land of Amakwa family and on the east by the land of Amakwa family occupied by members of Umuamaechighi family as customary tenants.”

The appellants also pleaded their traditional history and their various acts of possession and ownership of the land in dispute. The defendants, hereinafter called the respondents, admitted paragraphs 1 and 2 as pleaded but denied paragraph 3. Further in paragraphs 4, 5, and 6 of their Statement of Defence, they averred thus: