Appeal allowed: Plaintiffs' case struck out.

APPEAL from The High Court (Mid-West).

Chief Akpofure for the Defendants/Appellants.

Joaquin (with him, Oji) for the Plaintiff/Respondent.

Coker, J.S.C. (delivering the judgment of the court):-The matter for determination in this appeal lies within a small ambit. The respondent. Obodokea Osademe had sued one Okoroigabor Onwunalu for a declaration of title to "land known as Apata with its lake Oge and the ponds therein" and an injunction to restrain the defendant and his agents from entering the land, the lake and the ponds. On his writ the plaintiff expressed himself as suing on behalf of himself and the people of Umuolu and the defendant was expressed to have been sued on behalf of himself and the people of Okpokirika. Pleadings were ordered and filed by both parties and the capacities in which the parties appeared on the writ were confirmed in their pleadings. It appears that some time after the close of pleadings two persons applied to be joined along with the defendant as representatives of the people of Okpokirika. The court granted their application and it seemed that thereafter the people of Okpokirika were represented as such by three persons, namely, Okoroigabor Onwunalu, Ozegbe Ndidi and Oliwa Onwunalu.

The hearing of the case then took place both sides calling evidence before the court (Begho, J. as he then was). The learned trial Judge thereafter gave judgment in favour of the plaintiff in the terms of his writ and this appeal is from that judgment. In the course of his judgment the following passage, which constitutes the core of the arguments before us appears:-

"Only Ozegbe Ndidi gave evidence out of all the defendants. He said the land in dispute belonged to him and the Onwunalu family and not communal land belonging to the whole of Okpokirika people. He was defending the suit in a representative capacity; for himself and Onwunalu family or their extended family called Ojugbeli. In this respect, both sides have deviated from their pleadings; and I thought a non-suit should be entered but I would not be doing substantial justice to this protracted case by doing that.

The capacity in which plaintiff sues is clear but the capacity in which the present defendants (i.e. Okoroigabor Onwunalu, Ozegbe Ndidi and Oliwa Onwunalu) are defending the suit should read "for themselves and on behalf of Onwunalu family" since this is the capacity on which the case was contested by both parties."

After this the learned trial Judge dealt extensively with the merits of the case of both parties and gave judgment as stated before for the plaintiff in the terms of his claim but against the Onwunalu family according to his own amendment and not against the Okpokirika people according to the writ and the pleadings. On appeal before us the main point argued is that the learned trial Judge should either have non-suited the plaintiff or struck out his case once he came to the conclusion that the evidence given on behalf of the plaintiff was directed against the Onwunalu family and not against the Okpokirika people as on the writ and the pleadings.

We are ourselves concerned over the propriety of making an order for amending the capacity in which defendants were sued without giving any opportunity to the parties or their Counsel to address the court on the proposed amendment. In this case it is clear that the Onwunalu family was never a party to the present proceedings and eo ipso it would be wrong to give judgment against them in those proceedings. Although the learned trial Judge based his decision to amend the designation of the defendants as he did on the evidence before him, he overlooked the contents of the affidavits in support of the application for their joinder. Those affidavits state positively that the two defendants later joined were at a meeting of the Okpokirika people nominated to represent them, i.e. the Okpokirika people, and that they were asking to be joined as parties for that purpose. We are in no doubt that the amendment which was made suo motu should not have been made for at that stage at which the learned trial Judge decided to amend the title of the case he ought to have found that the plaintiff's action was wrongly constituted. It is sufficient to point out that the course adopted by him must perforce operate harshly on the Onwunalu family as that family had no opportunity of contesting the case which resulted in the making of an order of perpetual injunction against them nor indeed were they given the choice of nominating like the Okpokirika people their own representatives to the action.

Learned Counsel for the plaintiff on this appeal had urged us to make an order striking out the case of the plaintiff instead of non-suiting him. We were not told why he preferred the one form of order to the other but we are aware that a non-suit implies giving to an unsuccessful plaintiff another opportunity of proceeding again in the same cause against a defendant who in any case was not entitled to the judgment of the court. Such is not the case here for the defendants on the writ, i.e. the people of Okpokirika, should not have been made defendants at all to this action. We think therefore that the proper order is to strike out the case of the plaintiff with costs thereby allowing the appeal.

The appeal therefore succeeds and it is allowed. The judgment of the High Court, Benin City, in Suit No. W/95/57, including the order for costs to the plaintiffs, is set aside. We do not interfere with the order for costs against Egre Okoro and James Obuku and that will stay. It is ordered that the plaintiff's case be struck out and that this be the judgment of the court. The plaintiff shall pay the costs of the defendants in the court below which we fix at 45 guineas and he will also pay the costs of the defendants in this Court which we fix at 81 guineas.

Appeal allowed: Plaintiff's case struck out.