OBED OKPALA & ANOR V. RICHARD IBEME & ORS.
In The Supreme Court of Nigeria
On Monday, the 6th day of March, 1989
SC.220/1986
JUSTICES
ANDREWS OTUTU OBASEKI Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
PHILLIP NNAEMEKA-AGU Justice of The Supreme Court of Nigeria
ABUBAKAR BASHIR WALI Justice of The Supreme Court of Nigeria
Between
- OBED OKPALA
2. JULIAN OKPALA
(For themselves and for and on behalf of
Umu-Okpala Family of Amakwa, Eziaja Village, Neni) Appellant(s)
AND
- RICHARD IBEME
2. DANIEL OBIANODO
3. FABIAN EMOKA
4. PIUS ENECHUKWU
5. CHARLES OBIESIE
6. PATRICK NZEKWE
7. OBIDIKE NZEKWE
8. JONATHAN EJIDIKE
9. JEREMIAH AMAKO
10. JOSEPH OBIANODO
(For themselves and for and on behalf of Umueze Village, Neni) Respondent(s)
RATIO
WHETHER OR NOT THE PLAINTIFF MUST RELY ON THE STRENGTH OF HIS OWN CASE IN A CLAIM FOR DECLARATION OF TITLE TO LAND
I must begin my consideration of this issue in this appeal by pointing out that the catch expression enunciated long ago in the case of Kodilinye v. Mbanefo Odu (supra) that in a claim for declaration of title the onus is on the plaintiff who must rely on the strength of his own case and not on the weakness of the defence now admits of at least two qualifications. The first is that the plaintiff can quite perfectly take advantage of those facts in the defence case which support the plaintiffs. The second which is relevant in this appeal, is that where an issue of title to land arises in litigation, the court is concerned only with the relative strengths of the titles proved by adverse parties in the litigation and not the titles of those not before the court. Idigbe, J.S.C. put this principle very succinctly in the case of Madam I. Arase v Peter U. Arose (1981) 5 S.C. 33, at p.35 where he held:
“It ought to be borne in mind always that at common law, where questions of titles to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B, he (party A) is entitled to succeed: per Lord Diplock in Ocean Estates Ltd. v. Norman Pinder (1969) 2 A.C. 19, at pp.24-25.”
Decided cases show that this common law principle has been fully received in our law. In addition to Arase v. Arase (supra) in which it was cited with approval, reference may be made to the following cases: Anukanti v. Ekwonyeaso (1978) 1 L.R.N. 346, p.351; Karimu v. Fajube (1968) N.M.L.R. 151, p. 152-153; Ramonu v. Akinwunmi S.C. 106165 of the 23rd of June, 1966. PER NNAEMEKA-AGU, J.S.C
THE DIFFERENCE BETWEEN THE ORDER OF DISMISSAL AND NON-SUIT
It is necessary to appreciate the difference in the effects of the two orders of dismissal and non-suit. An order of dismissal after fully hearing the parties concludes the matter against the plaintiff for ever, subject to appeal.
It concludes the rights of the parties for all purposes: See Bozson v. Altrincham U.D.C. (1903) 1 K.B. 547; Shubrook v. Tufnell (1882) 9 Q.B.D. 621, C.A. A non-suit, on the other hand was at common law originally a renouncing of the suit by the plaintiff or defendant. It decided nothing as regards the matter in dispute, but merely got rid of the pending action, leaving the plaintiff at liberty to begin de novo, either in the same or a subsequent suit, subject only to his payment of costs to be taxed against him – on the non-suit. See on these: Poyser v. Minors (1881)7 Q.B.D. 329, at pp.332-333. As now used in the rules of court of those States of the Federation where it has not been abolished – it has been abolished in Lagos – an order of non-suit has lost some but still retains others of its old features. The plaintiff can no longer elect to be non-suited. Rather a court can decide to order it after hearing the parties if satisfied that none of the parties before it is, on the merits, really entitled to judgment: See D.M. Aigbe v. John Edokpolor (1977) 2 S.C. 1; Chief Aseimo & Ors. v. Chief Anthony Amos & Ors.(1975) 2 S.C. 57. The court has a discretion in the matter, but it is one which has to be exercised cautiously, judicially and judiciously. The overriding consideration at all times appears to be that considering the cases of the parties, justice demands that the plaintiff should be given a chance to institute another action on the same issues – and should not be shut out for good and that the defendant is not entitled to judgment. A non-suit is a final decision which decides that none of the parties has won, but preserves the plaintiff’s right of another action on the same subject matter and the same issues.PER NNAEMEKA-AGU, J.S.C
NNAEMEKA-AGU, J.S.C. (Delivering the Leading Judgment): 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:
“4. In further answer to paragraph 3 of the Statement of Claim the defendants state that the land in dispute is known as and called IDIDENKA land. It is situate in Umueze village, Neni in Njikoka Division and is more particularly delineated and verged Pink in the defendants’ plan No.EC 137/74 filed with this Statement of Defence.
5. Also in further answer to paragraph 3 of the Statement of Claim the defendants state that the said IDIDENKA land derived its name from IDIDENKA Juju Shrine which is worshipped by the defendants. The IDIDENKA land comprises Ana-Isimmo, Mbala Ididenka, Ofia-Ididenka and Ana Unuezana shrine.
6. The defendants admit paragraph 4 of the Statement of Claim in so far as the plaintiffs live on the Northern and the Western sides of the land in dispute but deny the rest of paragraph 4 of the Statement of Claim.”
They also pleaded their traditional history connecting them to the land in dispute and some of their acts of ownership and possession of the land in dispute. At the end of the pleadings, each party was claiming title of ownership to the land in dispute.
At the trial, the two appellants on record testified and called seven other witnesses. It is noteworthy that these other witnesses came variously from other units of kindreds which, together with the appellants, make up Amakwa quarter. Each of them, except P.W.1 who stated that the land in dispute was that of the whole of Amakwa, testified that it belonged exclusively to the appellants.
On the other hand the ten respondents testified in support of their case but called no witnesses.
At the conclusion of the evidence and the addresses of counsel, the learned trial Judge. Umezinwa, J., made several findings of fact. But because of the limited issue raised by this appeal, only some of them need be mentioned here. He found that the respondents’ case was very weak: they were not the owners of the land in dispute; the land was situate in Eziaja (appellants’ umbrella village) and not in the respondents’ Umueze; their alleged grant of the land to one Obianodo was false and only fabricated to enable them to claim the land in dispute. On the other hand, the appellants’ case was weak in that they were able to prove co-ownership with the rest of Amakwa, and not exclusive possession or ownership. They also failed to prove that the name of the land in dispute was Ani Okpala or Ani Nweke-Okpala. Then he said:
“The evidence before me establishes that the land in dispute is situate in Eziaja village and belongs not to the plaintiffs alone but to Amakwa family as a whole. Although plaintiffs’ family is a unit within Amakwa family and although I have no iota of doubt that the land in dispute does not belong to the defendants, can I rightly make the declaration which the plaintiffs seek It seems to me that I cannot. A situation similar to this arose in the case of Chief Dada v Chief Shitu Ogunremi & Anor (supra).”
On the issue of perpetual injunction he stated:
“On the Order for perpetual injunction made in favour of the plaintiffs/respondents, the Court relying on the decision of Viscount Finlay in Performing Right Society Ltd. v. London Theatre of Varieties Ltd. (1924) A.C. 1 at p.19. held that it is improper to grant a perpetual injunction at the instance of a limited owner when the owner of the absolute interest is not a party to the suit.”
On appeal to the Court of Appeal, Enugu Division, per Belgore, J.C.A. (as he then was), Aseme and Aikawa, JJ.C.A. concurring, he held that in so far as the appellants, as plaintiffs, failed to prove exclusive ownership, they had failed to prove their case. They relied on Woluchem v Cudi (1981) 5 S.C. 291, p.316-317. The court further observed that the learned trial Judge did not hear the parties before he non-suited the appellants. Their case was, therefore, dismissed.
The appellants have now appealed to this court. Counsel for either party filed their respective briefs.
Before I deal with the main issues canvassed in this appeal, I would like to make certain observations on the “issues-for determination” framed for this appeal. The learned counsel for the appellants, Senator Anah, formulated two issues which he described as the main issue and a subsidiary issue. These two issues were worded thus:
“4.1 The main issue for determination in this appeal is whether the plaintiffs/appellants failed in toto in the High Court to prove their case. If they did, the proper order should be a dismissal but if not, a non-suit should have been retained by the Court of Appeal.
4.2 The subsidiary issue is whether the non-compliance with a XLVIII R.1 of the High Court Rules of Eastern Nigeria by the trial Judge by not inviting the Counsel to address him on the appropriate order to be made vitiates the proper order of non-suit which he made.”
With greatest respects, these issues could have been more elegantly worded. Also, the learned Counsel for the appellants later framed another “issue” in his “Supplementary Brief” dated the 6th of March, 1987. This runs thus:
“2.1 Whether the applicants can show that there is an arguable appeal”
Quite apart from the fact that there does not appear to be any authority for filing any supplementary brief on 9th March, 1987, when the last date authorized by the rules for filing the appellants’ brief was 5th February, 1987, there is no provision in the rules for filing a supplementary brief without a leave of Court. What is provided for is a reply brief, where necessary (see Order 6 rule 5(3) of the Supreme Court Rules, 1985). Even so, where it is necessary, it should be limited to answering any new points arising from the respondents’ brief. No fresh issue for determination need be included. The “issues for determination” as framed in respondents’ brief was not free from faults either. Three “issues” were set out, namely:
“4.1 Whether the appellants established ownership to the land in dispute referred to by them as ANI NWEKE on the evidence brought by them to entitle them to a declaration of title to the said land.
4.2 Whether the Order of Non-suit entered by Umezinwa, J. without inviting Counsel to the parties to address him on the propriety of the relief which was not asked for by any of the parties was a proper exercise of judicial discretion.
4.3 Whether the Court of Appeal was right in dismissing the appellants’ case in the light of the evidence led and findings of fact made by the learned trial Judge.”
It can be seen that the first issue did not relate to the grounds of appeal filed while the second wrongly relates to the judgment of the High Court, than that of the Court of Appeal appealed from. I should repeat what my learned brother, Obaseki, J.S.C., said in respect of the respondent’s brief in Jonah Onyebuchi Eze v. Federal Republic of Nigeria (1987) 1 N.W.L.R. (Pt.51) 506, at p.521-522:
“The respondent is not the appellant and has filed no cross-appeal. It must therefore formulate issues for determination in the appeal, with reference to the grounds filed.”
This Court has said a number of times that the “issues for determination” is a very serious part of a brief and ought to be carefully got up. It should not be framed in the abstract but in concrete terms, arising from and related to the grounds of appeal filed which represent the questions in controversy in the particular appeal. See Western Steel Works Ltd. & Anor. v Iron & Steel Workers Union of Nigeria & Anor. (1987) 1 N.W.L.R. (PtA9) 284, at p.304. Having regard to the grounds of appeal filed and canvassed in the briefs, I believe that the issues for determination in this appeal are:
1. Whether, in view of the findings of fact made by the learned trial Judge, the Court of Appeal was right to have substituted an order of dismissal of the appellants’ case for the order of non-suit made by the learned trial Judge.
2. Whether the learned Justices of the Court of Appeal were wrong to have failed to enter judgment for the appellants on the issue of trespass.
I do not think that whether or not the learned trial Judge was right to have made the order of non-suit without hearing the parties arises in this Court, as no ground of appeal or of cross-appeal raised it. It is now settled beyond question that any issue raised or argument advanced on an issue not arising from a ground of appeal is incompetent. See Osinupebi v. Saibu & Ors.(1982) 7 S.C. 104, at pp.110 and 111. Be that as it may, the fact remains that even if it arose, we could have rightly called for an address on the point. As this Court did in Craig v. Craig (1966) 1 All N.L.R. 173, we have been addressed fully on the issue of non-suit. So we would ourselves have ordered it if we found that the learned Judge failed to hear the parties before ordering it, once we were convinced it was the proper order.
On the first issue, the sum total of the findings of the learned trial Judge set out above was that the appellants were co-owners of the land in dispute with the rest of their Amakwa kith and kin whereas the respondents were complete strangers to the land in dispute. The gist of the argument of Senator Anah is that an order dismissing the appellants’ case was wrong in the face of those findings in that the order of dismissal had the effect of shutting off the appellants for good from enjoyment of the land of which they are part owners.
In support he relied on the following cases:
Obiwale v. Ige (1969) 1 N.M.L.R. 115, at p.116;
Ajetunmobi v. Omowunmi (1961) 1 All N.L.R. 120;
Lion Building Ltd. v. Shadipe (1976) 12 S.C. 135;
Bozin v. The State (1985) 2 N.W.L.R. (Pt.8) 465;
Ejiofor v. Onyekwe & Ors (1972) 1 All N.L.R. (Pt.2) 527, p. 536;
Chief Dada v. Ogunremi & Anor (1967) N.M.L.R. 181;
I.B.W.A. v. Oguma (1986) 2 N.W.L.R. (Pt.20) 124; and a host of other cases.
In particular, relying on Akubueze v. Nwakuche (1959) 4 F.S.C. 262, he submitted that where a plaintiff proves a joint interest with the defendants the proper order is one of a non-suit. A fortiori such an order should be more readily made where the appellants proved a joint interest with members of the larger quarter, Amakwa.
Mr. Ezeuko, on the other hand, argued, as did the Court of Appeal, that the order of dismissal was correctly made in so far as the appellants had not proved exclusive ownership. In a claim for title, a plaintiff must rely on the strength of his own case, he submitted. Furthermore, he contended that dismissal of the appellants’ claim was not the same thing with declaring title in favour of the respondents, who never counter-claimed for title, any way. In support of these submissions, he cited the following cases:
Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 336;
Lyell v. Kennedy (1882) 20 Ch. D. 484, p490;
Ekpo v. Ita 11 N.L.R. 68, p.694
Adeniyi v. Aderemi (1961) W.N.L.R. 185;
Nwankwo Udegbe v. Anachuna Nwokafor (1963) 1 All N.L.R. 417;
Eboha v. Anakwenze (1967) N.M.L.R. 140;
Foli v. Akesse (1934) 2 W.A.C.A. 46, P.C.;
Daniel & Ors. v. Cardoso (1986) 2 N.W.L.R. (Pt.20) 1, p.6.
I must begin my consideration of this issue in this appeal by pointing out that the catch expression enunciated long ago in the case of Kodilinye v. Mbanefo Odu (supra) that in a claim for declaration of title the onus is on the plaintiff who must rely on the strength of his own case and not on the weakness of the defence now admits of at least two qualifications. The first is that the plaintiff can quite perfectly take advantage of those facts in the defence case which support the plaintiffs. The second which is relevant in this appeal, is that where an issue of title to land arises in litigation, the court is concerned only with the relative strengths of the titles proved by adverse parties in the litigation and not the titles of those not before the court. Idigbe, J.S.C. put this principle very succinctly in the case of Madam I. Arase v Peter U. Arose (1981) 5 S.C. 33, at p.35 where he held:
“It ought to be borne in mind always that at common law, where questions of titles to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B, he (party A) is entitled to succeed: per Lord Diplock in Ocean Estates Ltd. v. Norman Pinder (1969) 2 A.C. 19, at pp.24-25.”
Decided cases show that this common law principle has been fully received in our law. In addition to Arase v. Arase (supra) in which it was cited with approval, reference may be made to the following cases: Anukanti v. Ekwonyeaso (1978) 1 L.R.N. 346, p.351; Karimu v. Fajube (1968) N.M.L.R. 151, p. 152-153; Ramonu v. Akinwunmi S.C. 106165 of the 23rd of June, 1966.
Applying this principle to the present appeal, it appears clear to me that the matter ought to have been decided by comparing the competing claims to the title to the land in dispute as between the appellants who have been adjudged to be part owners, and the respondents, who have been found to be strangers to the land in dispute. The appellants have in this appeal not asked us to declare title in their favour rather, they are contending that an order of dismissal which has the effect of shutting them off completely from the land in dispute of which they are part owners is wrong. I have no difficulty in agreeing with them. We have not been asked to pronounce on the peculiar situation which has arisen in this case in which several members of the larger unit which P.W.1 alone says owns the land have testified that the land is in fact exclusive property of the appellants. Nor have we been asked to declare title in this appeal in favour of the appellants. For the limited relief which is sought in the appeal, I have no difficulty in saying that the appellants were at least entitled to an order of non-suit and that the order of dismissal is wrong.
If feel constrained to observe that the case of Woluchem v Gudi (1981) 5 S.C. 291 which the learned Justices of Appeal relied upon is clearly against the proposition of law which they propounded. They cited that case to show that as the land in dispute was owned communally by the whole of Amakwa, the appellants who were co-owners of the land with their kith and kin were not entitled to judgment because they did not prove exclusive possession. In that case, this Court, per Nnamani, J.S.C., said at page 318 to 319:
“Whether the plaintiffs were exclusive owners or not was not an issue between the parties on the pleadings. The issue was which of the two parties owned the land in dispute, the identity of which was known to both parties.”
Later he continued:
“I do not think that that piece of evidence extracted in cross-examination ought to have affected the declaration which the learned trial Judge granted to the appellants.”
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“I agree with the submission of learned Counsel for the Appellants that the Court of Appeal ought not to have entertained argument on this issue It is settled law that evidence in respect of matters not pleaded really goes to no issue at the trial and the trial court should not allow such evidence to be given: Chief Abah Ogboda v Daniel Adulugba (1971) 1 All N.L.R. 68.”
That is also the position in this case and the same principle applies with equal force.
This case can also be looked upon from another angle. It is now a well established principle of law that a member of a family can sue a stranger to protect the interest of the family over any property. For this see: Sogunle v. Akerele & Ors. (1967) N.M.L.R. 58, at p.60; Animashawun v. Osuma & Ors.(1972) 1 All N.L.R. (Pt. 1) 363, at p.375. If the other members of the family who are aware of the litigation wish to be parties to the suit, they can apply to be joined. If they do not so apply, they will be bound by the results. In the instant case in which persons from the rest of Eziaja Village who are not parties to the suit testified overwhelmingly in favour of the appellants they cannot be heard to complain later on.
It is necessary to appreciate the difference in the effects of the two orders of dismissal and non-suit. An order of dismissal after fully hearing the parties concludes the matter against the plaintiff for ever, subject to appeal.
It concludes the rights of the parties for all purposes: See Bozson v. Altrincham U.D.C. (1903) 1 K.B. 547; Shubrook v. Tufnell (1882) 9 Q.B.D. 621, C.A. A non-suit, on the other hand was at common law originally a renouncing of the suit by the plaintiff or defendant. It decided nothing as regards the matter in dispute, but merely got rid of the pending action, leaving the plaintiff at liberty to begin de novo, either in the same or a subsequent suit, subject only to his payment of costs to be taxed against him – on the non-suit. See on these: Poyser v. Minors (1881)7 Q.B.D. 329, at pp.332-333. As now used in the rules of court of those States of the Federation where it has not been abolished – it has been abolished in Lagos – an order of non-suit has lost some but still retains others of its old features. The plaintiff can no longer elect to be non-suited. Rather a court can decide to order it after hearing the parties if satisfied that none of the parties before it is, on the merits, really entitled to judgment: See D.M. Aigbe v. John Edokpolor (1977) 2 S.C. 1; Chief Aseimo & Ors. v. Chief Anthony Amos & Ors.(1975) 2 S.C. 57. The court has a discretion in the matter, but it is one which has to be exercised cautiously, judicially and judiciously. The overriding consideration at all times appears to be that considering the cases of the parties, justice demands that the plaintiff should be given a chance to institute another action on the same issues – and should not be shut out for good and that the defendant is not entitled to judgment. A non-suit is a final decision which decides that none of the parties has won, but preserves the plaintiff’s right of another action on the same subject matter and the same issues.
On the contention of Mr. Ezeuko that in so far as the respondents have not counter-claimed for title, an order of dismissal will not harm the appellants, it is my view that a dismissal of the action will raise certain forms of estoppel in favour of the respondents as against the appellants in any future suits. The result cannot, therefore, be the same with an order of non-suit. Considering the nature of a non-suit as I have explained above, it appears to me to be a misconception to argue that the appellants are entitled to judgment in the claim for trespass or an order of permanent injunction, as they are on their own admission entitled to only an order of non-suit which, as I have shown, is predicated upon the premises that none of the parties is entitled to judgment for either damages for trespass or injunction.
In the instant case, the learned trial Judge found that the land belonged to Amakwa Village of which the appellants form a part. A verdict for either damages in trespass or permanent injunction appears to me to be inconsistent with non-suit which they are asking for in this appeal.
For all I have said, the appeal succeeds and is allowed. I set aside the order of dismissal made by the Court of Appeal in this suit and restore the order of non-suit made by the court of trial.
The appellants shall have the costs of this appeal which I assess at N500.00.
OBASEKI, J.S.C.: I have had the advantage of a preview of the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. His opinions on all the issues raised in this appeal for determination accord with mine and I hereby adopt them as my own.
The short point in this appeal is whether the order of non-suit made by the learned trial Judge in the High Court should be restored or whether the order of dismissal of the claims entered by the Court of Appeal be allowed to stand. There was an omission of the relief sought from the notice of appeal filed which was brought to the attention of the appellants. His counsel promptly applied for an order granting amendment of the notice of appeal to include the relief sought from the Supreme Court to wit:
“that the order of dismissal by the Court of Appeal be set aside and one of non-suit substituted.”
I agree with my learned brother that the application be granted and the notice of appeal is hereby amended accordingly.
The three items of claim endorsed on the writ of summons and the statement of claim filed in the High Court are 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 Anakwa family of Eziaja Village in Neni, Njikoka Division a plan of which will be filed in this suit.
(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 and committed indiscriminate acts of wanton destruction thereon.
(c) Perpetual injunction to restrain the defendants, their servants and/or agents from further committing acts of trespass on the said land.”
Pleadings were filed and served and at the close of pleadings, the issues raised came up for hearing before Umezinwa, J. He found the case established by both parties weak and non-suited plaintiffs’ claim.
Although the plaintiffs’ case was weak in the sense that it was not strong enough to entitle them to judgment, it was proved that they were co-owners of the land in dispute with the rest of Amakwa community. The defendants were found to have no interest whatsoever in the land.
The question that the court has to deal with in such a situation is one of finding a juster decision. Will it be just to non-suit or to dismiss the claims
That is the question.
I agree with the learned trial Judge and my learned brother, that the just decision is an order of non-suit. The Court of Appeal preferred an order of dismissal, hence, this appeal has come to us.
Arising from the grounds of appeal, I agree with my learned brother that the issues for determination are:
1. whether, in view of the findings of fact made by the learned trial Judge, the Court of Appeal was right to have substituted an order of dismissal of the appellants’ case for an order of non-suit made by the learned trial Judge;
2. whether the learned Justices of the Court of Appeal were wrong to have failed to enter judgment for the appellants on the issue of trespass.
These issues were dealt with exhaustively by my learned brother, Nnaemeka-Agu, J.S.C., and I agree with him for the reasons stated in his judgment that the appeal be allowed.
The appeal is hereby allowed. The decision of the Court of Appeal is hereby set aside and the decision of the learned trial Judge entering an order of non-suit against the plaintiffs restored.
The appellants will have costs in this appeal fixed at N500.00.
UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. For the reasons given therein, I too will allow the appeal. Accordingly, the appeal succeeds, the decision of the Court of Appeal dismissing the plaintiffs’ action is hereby set aside and the order of non-suit entered by the learned trial Judge is hereby restored.
KARIBI-WHYTE, J.S.C.: I have had the privilege of reading the judgment of my learned brother, Nnaemeka-Agu, J.S.C. in this appeal. I am in entire agreement and for all the reasons contained in his judgment that this appeal ought to succeed.
I accept the formulation of issues of my learned brother, P. Nnaemeka-Agu, J.S.C., as properly accentuating the issues which fall for determination on the grounds of appeal filed. I also adopt his statement of the facts and the grounds of appeal in this appeal.
It was not the subject matter of dispute in this appeal that the learned trial Judge found that appellants were co-owners of the land in dispute with the other members of their kindred of Amakwa. He also found that the respondents were complete strangers to the land. Appellants were accordingly non-suited because they did not establish exclusive ownership of the land in themselves. These findings still stand and have not been set aside.
The Court of Appeal would appear to have dismissed the action not only because appellants failed to prove their case, but essentially also that there was nothing in issue between them and the respondents. In the Court of Appeal, S.M.A. Belgore, J.C.A., reading the judgment of the Court stated it as follows:-
“The order for non-suit is always made where not to do so will offend a party whose rights to litigate on the same subject-matter against same defendant justice demands not be extinguished. But where a plaintiff has put before the Court all his case, and nothing in issue between the Plaintiff and Defendants, by virtue of the pleadings, is left uncontended at the trial, and the Court finds he has failed to prove his case in toto, the order to make is not non-suit, but dismissal. Elemenya Ikoro v Satrap (Nigeria) Ltd.(1977) 2 S.C. 123, 127.”
After correctly stating the rationale for entering a non-suit, the learned Justice of the Court of Appeal pointed out that the learned trial Judge made the order for non-suit without hearing the parties on it, contrary to Order LXVIII r.1, High Court Rules of Eastern Nigeria, 1963 which merely provided for making the order without consent of the parties but not necessarily without hearing. The other reason relied upon by the Court of Appeal for dismissing the action rather than affirming the order of non-suit was that
“…it is evident on the face of the records that the evidence marshaled by the plaintiffs/respondents before the trial court grossly fell short of satisfying the learned Judge as to their claim. No evidence that the Respondents could rely upon was inadvertently left out and no wrong would be done to them if they were not non-suited. They failed to prove their case in toto.”
Finally, the court declared,
“It is the duty of the plaintiff who claims title to land to prove his case to the satisfaction of the Court. If a party fails in to toto prove his case the court must dismiss the case notwithstanding the strength or weakness of the defence. It is wrong to non-suit the plaintiff in such case.”
In other words, the Court of Appeal is saying not only that Appellant has failed to prove his title against the Respondent but also that he has failed entirely to prove any title in himself, whether exclusively or with others who are not parties to the case. If the facts of the case had justified this proposition, the judgment of the Court of Appeal before us would have been unassailable. In such a situation, there would be no title in appellants or anyone else to enable action for declaration to be brought, and no wrong would be done to him if his claim were to be dismissed. This is not the situation in the appeal before us. As I have already stated, the finding of the learned trial Judge is that Appellants are co-owners of the land in dispute with their kith and kin of Amakwa. It is therefore not strictly correct to hold that they have no title whatsoever which they can in an appropriate circumstance together with their kith and kin of Amakwa defend against trespassers.
The order of non-suit made by a court is an expression that at the conclusion of the trial, the plaintiff who brought the action has not established his claim to the satisfaction of the Court to deserve judgment in his favour. At the same time the defendant who has been brought before the court by the plaintiff is similarly not entitled to get judgment. This is because although the plaintiff may not be entirely devoid of any right or title as regards the matter in dispute, he has not established any claim as against the defendant. It therefore means that Plaintiff should be able to have a second chance to litigate the issue – See Okpaloka & Ors. v. Umeh (1976) 9 S.C. 269; Cheko v. Kano N.A. (1966) N.M.L.R. 162; Osondu & Anor. v. Nduka & Ors.(1973) 1 S.C. 9. He or those who have rights in respect of the matter should not be permanently shut out in the exercise of their rights against ‘the defendants or any other person. This will be the effect of a dismissal of Plaintiffs claim – See Bozson v. Altrincham U.D.C. (1903) 1 K.B. 547. Thus justice demands that the court should as stated in Craig v. Craig (1967) N.M.L.R. 52,55 consider whether the order of non-suit would be wronging the defendant, or whether the order of dismissal would be wronging the Plaintiffs. Thus, a non-suit is the appropriate order where there is no satisfactory evidence enabling the Court to give judgment to either of the parties and wronging neither – See Adeyola v. Akinsan (1939) 15 N.L.R. 10; Epi & Anor. v. Aigbedion (1973) 1 N.M.L.R. 31.
In this appeal the competing rights of the parties are those between the appellants adjudged as part-owners and the respondents as total strangers to the land. Appellants are complaining that the Court of Appeal was wrong to have dismissed their claim since the effect is not only to defeat their action against the Respondents but also to defeat permanently their claims to the land in dispute. I agree with this contention. Appellants have not asked for a declaration of title in themselves in this Court. They are seeking to restore the finding of the trial Judge non-suiting their claim. Respondents have not appealed against the order of non-suit made without hearing them on the issue. I therefore will not consider that issue.
There is no doubt a dismissal of the Appellants’ claim will be wronging them whereas a non-suit will not be wronging the Respondents. I am therefore satisfied that Appellants are entitled to an order of non-suit. The order of dismissal made by the Court of Appeal is wrong.
Although a Plaintiff cannot after trial elect to be non-suited because he has not proved his claim against the defendant, the court can, at the conclusion if satisfied that on the merits of the case none of the parties is entitled to judgment, make the order – See Aigbe v. Edokpolor (1977) 2 S.C. 1; Asiemo v. Chief Anthony Amos & Ors.(1975) 2 S.C. 57. It is a judicial discretion which the court has to exercise with extreme caution and along established judicial principles. The doing of justice to the parties is the paramount consideration.
I am satisfied that on the facts as found by the learned trial Judge, and Respondents having not counter-claimed for title, they will suffer no wrong if a non-suit of Plaintiffs’ claim is ordered in this case.
For the reasons I have given herein, and for the much fuller given in the judgment of my learned brother, Nnaemeka-Agu, J.S.C., I allow the appeal by the Appellants. The order of dismissal by the Court of Appeal is accordingly set aside. The order of non-suit by the Court of trial is hereby restored.
Appellants shall have N500.00 as their costs in this appeal.
WALI, J.S.C.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. I entirely agree with it. For the reasons which he has given and the conclusions reached, I too would allow this appeal with N500.00 costs to the Appellants.
The appeal succeeds and it is allowed. The order of dismissal of the Suit substituted by the Court of Appeal, Enugu is set aside and in place thereof the order of non-suit made by the trial Court is hereby restored.
Appeal Allowed.
Appearances
N. Anah (with him, V. I. Aganekwu, Esq.) For Appellant
AND
E. Ezeuko, Esq For Respondent
