The applicant as plaintiff had earlier in the Magistrate’s Court sued the respondent seeking perpetual injunction restraining the applicant from trespassing on the applicant’s land and general damages for the trespass. The applicant won the case and was given judgment of his claims. The case then went on appeal to the High Court, and from there to Court of Appeal and the Supreme Court. At the Supreme Court, the case was sent back to the Court of Appeal for rehearing.

Before the re-hearing could commence, the applicant brought an application before the Court of Appeal for an order amending paragraph 11 to include a relief that he did not claim in the trial court as follows:-

“a declaration that the plaintiff is entitled to statutory right of occupancy in respect of the piece of parcel of land situateat Abakpa-Nke, Enugu, covered by the deed of assignment dated July 13, 1977 and registered at the Lands Registry, Enugu as No. 92/92/983”

the respondent opposed the granting of the application by the Court of Appeal, on the ground that it will radically alter the character of the action that was tried at the trial court, and was also intended to overreach the respondent’s case in the Court of Appeal.