OKEKE ANADI (APPELLANT)

v.

OKEKE OKOLI (RESPONDENT)

(1977) All N.L.R. 23

Division: Supreme Court of Nigeria

Date of Judgment: 18th March, 1977

Case Number: SC.7/76

Before: (Sowemimo, Irikefe, Idigbe, JJ.S.C.)

The plaintiff's claim against the defendent is for the sum of £50 being general damages for trespass on the plaintiff.

The case came up for hearing before the learned Magistrate of the then East Centre State who having listened to the evidence on both sides and also to the address of counsel on both sides gave judgment in favour of the plaintiff awarding damages, and costs. The defendant (herein the appellant) unsuccessfully appealed to the High Court of East Central (now Anambra) State. This appeal is from the said judgment of the High Court.

The grounds of appeal which formed part of the notice of appeal filed by the appellant on 27th September, 1972

after leave to appeal had been duly obtained complained of certain errors in the part of the trial Judge in passages of his judgment. Although some of the grounds would most certainly have been struck out because they were manifestly improper, some of them were proper and could have been argued. At the hearing of the appeal, who had filed a motion asking for leave of the court to withdraw the grounds of appeal which had been part of the notice of appeal filed on 27th September 1972 and to substitute therefore 4 additional grounds of appeal formally made his application which was duly granted.

Grounds 2 and 4 of his new grounds of appeal allege misdirection by the trial Judge and errors in law without particulars of such misdirection of error in law. Grounds 1 and 3 of the new grounds of appeal were complaints against the trial Magistrate and not the judgment of the High Court which is the subject of appeal. When the attention of the Counsel for the appellant was drawn to these facts, he applied to be allowed to amend grounds 1 and 3 to direct those grounds against the decision of the High Court. When that application was rejected, he asked to be allowed to restore the original grounds which originally formed part of the practice of appeal filed on 22/9/72. Both applications were rejected.

HELD:

(1)     It is settled by a long line of decision that when a ground of Appeal alleges errors in law or misdirection on the part of Court of trial, particulars of the said errors or misdirection must be given. It is not enough to set out in quotation a passage in the judgment of Court of trial and allege without more that there is an error in law or misdirection and such a bare allegation offends the provisions of the Supreme Court Rules.

(2)     Grounds 1 and 3 of the Appellant grounds of Appeal are apposite to a complaint on the decision of the learned Magistrate and not the High Court judgment which is the subject of appeal as stated on the notice of appeal filed on 22/9/72. Grounds 1 and 3 are therefore not known to the law as grounds of appeal from a judgment of the High Court given in its appellate capacity.

Appeal struck out.

A. B. C Iketuonye Esq, for the Appellant.

S. O. Igbudu Esq, for the Respondent.

Cases referred to:

(1)     Anis Joseph Halaby v. Net Halaby (1951) 13 WACA 170

(2)     Ate Kwadze v. Robert Kwasi Adjei 10 WACA 274 (b)

(3)     Aviagents Ltd v. Balstravest Investments Limited (1966) 1 A. E. R 450

(4)     Murfett v. Smith (1887) 12 P.D. 116

(5)     Pfeiffer v. The Midland Railway Company (1877) 18 Q.B.D. 243

(6)     Udekwe Eboha & ors v. Ikemefula & ors 1967 NNLR P. 140

Statute referred to:

(1)     Supreme Court Rules.

Idigbe, J.S.C.:-On Wednesday the 16th day of March, 1977 we struck out this appeal on the ground that it is incompetent and said we would give our reasons for doing so later. We now do so. We think we should begin by making it clear that this Court very much deprecates the rather increasing habit of some counsel who appear before us of showing very little care in the way and manner papers relating to appeals in this Court are got up. Some counsel hardly take sufficient pains in drawing up the grounds of appeal set down in the Notice of Appeal from the decision of the lower Court. The Notice of Appeal is a very important document because it is the foundation of the Appeal and if it is defective the Court of Appeal has inherent power to strike it out on the ground that it is incompetent. (See for example where, there being no right of appeal, in law at all, the appeal was struck out as being incompetent: AVIAGENTS LTD v. BALSTRAVEST Investments Ltd. (1966) 1 A.E.R. 450)-and in appropriate cases it will not hesitate to do so.

Now, in these proceedings the plaintiff, Okeke Okoli, claimed from the respondent as follows:

"The plaintiff's claim against the defendant is for the sum of £50 being general damages for trespass. The parties reside at Ndi Njoku . within the jurisdiction. Sometime in February, 1971, at Ndi Njoku aforesaid, the defendant unlawfully entered the plaintiff's land called Ala Okeke Okoli of which the plaintiff is in possession and cleared part thereof."

The case came up for hearing before the learned Magistrate of the Magistrate Court of the then East Central State sitting at Okigwi-G. U. Emenike Esquire, who having listened to the evidence on both sides and also to the address and submissions of learned Counsel on both sides gave judgment on the 6th day of July, 1971, in favour of the plaintiff awarding damages for £20 and ten guineas costs.

It was also submitted to the learned Magistrate, in the course of the address of Counsel for the defendant that his jurisdiction to hear the claim was ousted by the provisions of Section 18 of the Magistrates Court Law applicable in the East Central (now Anambra) State because the evidence disclosed that the ownership of the land the subject matter of the claim for trespass was in issue. The learned trial Magistrate held that the issue had not been raised bona fide and having rejected the submission proceeded with the trial and at the end gave judgment as stated earlier on. The defendant appealed to the High Court of East Central (now Anambra) State holden at Okigwi (F.O. Nwokedi J). That Court on the 12th day of July 1972 dismissed the appeal with ten guineas costs. This appeal is from the Judgment of the High Court aforesaid.

The grounds of appeal which formed part of the notice of appeal filed by the appellant on 27th September 1972 after leave to appeal had been duly obtained-although not entirely satisfactory-clearly complained of certain errors, on the part of the learned trial Judge, in passages of his Judgment. Although some of the grounds would most certainly have been struck out because they are manifestly improper, some of them were proper and could have been argued. At the hearing of the appeal, however, learned Counsel for the appellant who had filed a motion asking for leave of the Court to withdraw the grounds of appeal which had been part of the notice of appeal (filed on 27th September, 1972) and to substitute therefore 4 additional grounds of appeal formally made his application which was duly granted. We think, at this stage, we should set out in extenso the additional grounds of appeal; and they read:

"AMENDED GROUNDS OF APPEAL

(1)     The Learned Magistrate erred in law and also misdirected himself by adjudicating to finality the trespass action filed by the plaintiff when from the evidence before him both the plaintiff and the defendant were laying claims to the land in dispute and the house thereon in which case the jurisdiction of the Court was ousted by the provisions of Section 18 Magistrate Court Law of Eastern Nigeria Cap. 82 of the Laws of Eastern Nigeria.

(2)     The Learned Trial Judge in the Court below also erred in Law and misdirected himself by upholding the decision of the learned Trial Magistrate.

"PARTICULARS OF ERROR IN LAW AND MISDIRECTIONS

(a)     "I have to state that I am satisfied with the evidence of the P.W.3 who is a very old man and as one of the four men who allocate their communal land to individuals, he is in the position to know the history and distribution of their communal land. The P.W.2 and P.W.3 said in their evidence they allocated the land in question to the plaintiff and that claim of ownership by the plaintiff is correct. I believe him."

(b)     "The P.W.3 was not seriously cross-examined on this vital point which goes to the root of this action and which also helps the Court to determine the nature of the claim of ownership put forward by the defendant whether it was made bona fide or not."

(c)     "According to the evidence before me I hold as a fact that the claim of ownership of this land by the defendant is not made bona fide. I therefore disregard it. It is my view that the question of the house built on this land is not in issue in this case i which the claim is for trespass to the land by clearing part of it and not trespass to the house."

(d)     "This is precisely what the learned Magistrate did in the instant case. The plaintiff gave his evidence and called three other witnesses and the Defendant gave evidence but called no witness. The Learned Magistrate in his judgment set out above found that the issue to title was not raised genuinely and bona fide. I am in complete agreement with the findings of the Magistrate on this point and I can see no ground whatsoever for quarrelling with that finding."

(3)     The Learned Trial Magistrate erred in Law and misdirected himself by saying as follows:

(a)     "I have to state that I am satisfied with the evidence of the P.W.3 who is a very old man and as one of the four men who allocate their communal land to individuals, he is in the position to know the history and distribution of their communal land. The P.W.2 and P.W.3 said in their evidence that they allocated the land in question to the plaintiff and that the claim of ownership by the plaintiff is correct."

(b)     "The defendant under cross-examination agreed that the pieces of land in question is part of the land called Ikpa Akanu allocated to entitled individuals by their community through four persons nominated by their community of which the P.W. 3 is one. In this circumstance the identity of this land is clear to the parties to this action."

When there is nothing on record that will enable the Court to determine the identity and the extent of the land in dispute.

(4)     Learned Trial Judge erred in law and misdirected himself in upholding the decision of the Court below by emphasising the form rather than the substance of the action before the Court by saying as follows:

"Although he cited two authorities (a) Ate Kwadzo v. Robert Kwasi Adjei 10 WACA 274 (b) Udekwe Eboha & ors. v. Ikemefula Anakwe Naze & ors. 1967 N.N.L.R.P. 140 to buttress his contention. Counsel did not pursue his argument with any show of optimism for obvious reasons. I have myself read the case cited and they appear to deal with issues involving claim "for declaration of title to land as opposed to the instant case where the action is claim for trespass only."

Dated 2nd March 1977."

Those grounds of appeal (i.e. the new grounds) are obviously improper and although learned Counsel for the respondent failed to object to them, the Court suo moto drew the attention of learned Counsel for the appellant to the improper nature of the grounds of appeal. In respect of grounds 2(a) (b) (c) & (d) as well as ground (4) it was pointed out to learned Counsel for the appellant that although these grounds alleged that "the learned trial Judge of the court below erred in law and misdirected himself" in the passages of his Judgment set down in ground 2(a) (b) (c) (d) and ground (4) no particulars of "errors in law" and "misdirection" were set out in those grounds of appeal. It is settled by a long line of decisions that when a ground of appeal alleges "error in law" or "misdirection" on the part of the Court of trial particulars of the said errors or "misdirection" must be given (i.e. set out clearly) in the said ground of appeal. (See Pfeiffer v. The Midland Railway Company (1887) 18 QBD 243; Murfett v. Smith (1887) 12 PD 116. These two cases deal with motion for a new trial on the ground of misdirection by the trial Court which in effect is an "appeal"). Following our own Rules of Court, this Court has on a number of occasions and in compliance with the express provisions of the particular rule struck out grounds which are defective because although they alleged "error in law" or "misdirection" on the part of a court of trial, they also failed to particularise the error or misdirection alleged. It is not enough to set out in quotation a passage in the Judgment of the Court of trial and allege, without more, that there is "an error in Law or misdirection" and such a bare allegation offends the provisions of the Supreme Court Rules Order VII rule 2(2) of which reads:

"2      (2)     If the ground of appeal allege misdirection or error in law the particulars and the nature of the misdirection or error shall be clearly stated." (Italics supplied by Court).

So much for grounds 2 and 4 of the new grounds of appeal.

With regard to grounds 1 and 3 the attention of learned Counsel for the appellant was drawn to the fact that these can not by any stretch of imagination be said to be directed against the Judgment of the learned Judge on appeal in the High Court. In each case, grounds 1 and 3 begin thus: "The learned (trial) Magistrate erred in law and (also) misdirected himself by adjudicating to finality (or by saying as follows)."

These grounds are apposite to a complaint on the decision of the learned Magistrate (i.e. they are grounds of appeal from the decision of the lower Court) NOT the High Court Judgment which is the subject of appeal as stated on the notice of appeal filed on 22/9/72. Finding himself on the horns of dilemma, learned Counsel for the appellant at first asked to be allowed to amend grounds 1 & 3 (obviously to reflect his intention to direct those grounds against the decision of the High Court), but when that application was refused he asked to be allowed to restore the original grounds (i.e. the grounds of appeal which originally formed part of the notice of appeal filed on 22/9/72). Both applications were rejected and we think we should mention here that we consider that with a little more care the dilemma in which learned Counsel for the appellant found himself could have been averted. Before we leave this aspect of the judgment, we think it is in the interest of counsel generally to set out here what transpired in Court so that care may be taken in future to avoid such a situation.

"Court to Counsel: Grounds 2 and 4 having been struck out you are now left with grounds 1 & 3. But these grounds are hardly appropriate grounds of appeal from a decision of the High Court. They are obviously directed against the learned Magistrate.

Counsel:  I now, can see that it is so.

Court to Counsel: What then is your application?

Counsel: I apply to amend grounds 1 & 3.

Court: You cannot do that at this stage; there is no motion for that purpose.

Counsel: Then I apply to have the original grounds of appeal which I withdrew, restored.

Court: They are already struck out. Grounds 1 & 3 will also be struck out; and they are accordingly struck out. What do you intend to do now?

Counsel: Since my notice of appeal is now improper I apply for extension of time within which to file fresh notice.

Court: Perhaps, you may have to try the Federal Court of Appeal for this.