Paul Nwadike & Ors V Cletus Cletus Ibekwe & Ors. (1987)

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AGBAJE, J.S.C. 

The case before us now on appeal started in the High Court of Justice of the former East Central State of Nigeria in 1972. The Plaintiffs, Cletus Ibekwe and 2 Ors., for and on behalf of members of the Eluama family in Umudurumba Amaigbo, Nkwerre Division in the Okigwe Judicial Division sued the defendants, Nathaniel Anaele and 3 Ors, claiming against them jointly and severally a declaration of title to a piece or parcel of land known as and called “OHIA UKWU ELUAMA” situate at Umudurumba Amaigbo Nkwerre Division in the then Okigwe Judicial Division, 100.00pounds (N200.00) damages for trespass and an injunction restricting them, their servants and agents from further entering the land in dispute. In the Okigwe Judicial Division of the High Court holden at Okigwe pleadings were ordered by F.O. Nwokedi J. as he then was on 29th September, 1972. Pursuant to this order, pleadings were filed and delivered. The case eventually proceeded to trial before Johnson J, in the High Court of Imo State of Nigeria, Orlu Judicial Division holden at Nkwerre. The Plaintiffs led evidence in support of their averments in their Statement of Claim. So did the Defendants in respect of their averments in their Statement of Defence. The learned trial Judge having listened to the parties and their witnesses found for the plaintiffs in a reserved judgment he delivered on 16th June, 1980. He found for the plaintiffs as follows:

“I am satisfied that the plaintiffs are entitled to the declaration and I accordingly grant it. By virtue of Section 36(1) (2) of Land Use Decree No 6 of 1978 the plaintiffs being the holder of the land in dispute are entitled to a Customary Right of Occupancy over the land.

It is hereby ordered that the plaintiffs are entitled to all that piece or parcel of land called “OHIA UKWU ELUAMA” as shown on plaintiffs’ plan NO.EC/400n2 Exh. ‘A’ which was variously described by the defendants as “OHIA UKWU” or “OHIA UKWU EKE” or “ALA UKWU ORJI ELUOWERRE NO.2″ and shown on defendants’ plan NO.PO/E.147/72 Exh. ‘E’. I also grant the plaintiffs the injunction claimed and the defendants, their agents and or servants are with effect from the date hereof restrained from entering the said land.

On damages for trespass, I award N150.00 against the defendants.”

The Defendants were not satisfied with the judgment. They appealed against it to the Court of Appeal, Enugu Judicial Division. The Defendants’ appeal was dismissed by the Court of Appeal on 14th May, 1985. The lead judgment of the court was delivered by S.M.A. Belgore, J.C.A., as he then was, to which Aseme, Olatawura J.J.C.A. agreed. Again the defendants were not satisfied with the decision of the Court of Appeal and they have now lodged a further appeal to this court.

In this judgment the Defendants will hereinafter be referred to as the Appellants and the Plaintiffs as the Respondents.

The Appellants attacked the judgment of the Court of Appeal, the lower court, on 8 grounds of appeal in their Notice of Appeal. Briefs of arguments were filed and exchanged.

The Respondents by a notice of their intention to rely upon Preliminary Objections filed on 2nd October, 1987 pursuant to Order 2 Rule 9 Sub-Section 1 of the Supreme Court Rules 1977 contended as follows:-

“TAKE NOTICE that the Respondents herein named intend, at the hearing of this application, to rely upon the following preliminary objections viz:-

1. That each and everyone of the eight (8) grounds of appeal filed by the appellants in this appeal is on facts and is therefore contrary to the provisions of S. 213(3) of the Constitution of the Federal Republic of Nigeria and deserves to be struck out.
2. That it is the practice of the Supreme Court that in the absence of special and exceptional circumstances, the court will not permit the re-opening of matters of fact with which the Courts below were in a more advantageous position to deal and with which they had in fact dealt. Each of the eight (8) grounds of appeal deals with facts, although each of them purports to be based on law.”

When this appeal came on for hearing on 6th October, 1987 arguments were taken first on the preliminary objections raised by the Respondents. As I have just said, the preliminary objections were directed against the grounds of appeal filed by the Appellants. I do not think it is necessary for me to set down in this judgment all the grounds of appeal complained about for reasons hereinafter appearing.

The grounds of the Respondents’ preliminary objections are self-evident and I have reproduced them above. It is common ground that neither the leave of the lower court i.e. the Court of Appeal nor that of this Court was sought or obtained before the Appellants filed their Notice of Appeal. The appellate jurisdiction of this court is provided for by Section 213 of the Constitution of the Federal Republic of Nigeria 1979. The relevant provisions for the purposes of this appeal are as follows:-

“213 – (1) The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.

(2) An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases –