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In The Supreme Court of Nigeria On Friday, the 14th day of July 2006
S.C. 345/2001
Before Their Lordships
Between
And
Judgement of the Court Delivered by Niki Tobi, J.S.C.
This appeal involves land in Omenu family of Umueri, Ogbunike in Oyi Local Government Area of Anambra State. The Omenu family owned the Ani Owelle land, which consisted of a large expanse of undeveloped and uninhabited land.
The 1st appellant, a medical practitioner, desirous of building a cottage hospital and his residential accommodation, applied for a parcel of land in Ani Owelle. He was allocated some plots of land. While it is the case of the plaintiffs/respondents that the application was for four plots, the defendants/appellants said that the 1st defendant/appellant applied for unlimited number of plots, leaving it to the discretion of the family to allocate to him the piece of land, which will be sufficient to accommodate a hospital and a residential accommodation.
The 1st appellant built a hospital on the parcel of land allocated to him. The hospital was duly commissioned in 1984. Trouble ensued in 1985 when the allocation made to the 1st appellant raised some controversy and dispute. The respondents sued the 1st appellant together with the 2nd to 6th appellants and asked for five reliefs. The 7th appellant was also in the suit.
The learned trial Judge dismissed the suit of the plaintiffs/respondents. He said:
“It is my view that in the light of the conflicting evidence adduced by the plaintiffs it cannot be said that EXH 3 or the survey plan attached to EXH 8 is forged. The plaintiffs have not proved the alleged fraud beyond reasonable doubt. I hold that in the light of the evidence of DW1 and DW2 which I believe, EXH 3 and the survey plan attached to EXH 8 could not have been forged.”
On appeal, the Court of Appeal set aside the judgment of the trial Judge. The Court said at page 248 of the Record:
“In the similar manner, since the 1st Respondent took more land than was originally granted to him without recourse to the family, such taking of extra land was done fraudulently and must be set aside. The appeal therefore succeeds and is hereby allowed. Judgment of Amaizu, J. (as he then was) dated 14/7/95 is hereby set aside. The appellants are entitled to all the Declarations and Orders claimed by them under paragraph 16 of their Amended Statement of Claim ...”
Aggrieved, the appellants have come to this Court. Briefs were filed and duly exchanged. The appellants formulated eight issues for determination, while the respondents formulated four issues. I will not reproduce the twelve issues here. I do not have such space. But I have enough space to ask what are eight issues doing in an appeal that has only five grounds of appeal? This Court has condemned proliferation of issues. As a matter of procedure, issues should not outnumber grounds of appeal. This is because issues are framed from one or more grounds of appeal, preferably more than one ground of appeal. The reverse position is the practice and it is that grounds of appeal outnumber issues. See generally Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Farouk (1990) 2 NWLR (Pt. 131) 137; Anonk Lodge Hotels Ltd, v. Mercantile Bank of Nigeria Ltd (1993) 3 NWLR (Pt. 284) 72.
Let me first take Issue No. 3 of both the appellants and the respondents. Issue No. 3 of the appellants’ brief reads:
“Whether the Court below was right in castigating and reversing the submission of the learned Counsel for the defendants/appellants that as none of the plaintiffs/respondents was head of the family and sued in their individual rights, the action was wrongly or improperly constituted and incompetent.”
Issue No. 3 of the respondents’ brief reads:
“Whether the Respondents had the competence to maintain this action?”
Chief Tochukwu Onwugbufor, learned Senior Advocate for the appellants, submitted that it was wrong to commence and present the action by the three plaintiffs/respondents in their personal capacities as the property in issue was the undivided communal property of all the adult males of Omenu family. Citing Nsima v. Nnaji (1961) All NLR 441 and Nta v. Arugbo (1972) 5 SC 156, learned Senior Advocate contended that in the Eastern States, it is the practice that before a plaintiff can bring an action on behalf of others, he has to obtain the authorisation of those he is to represent and obtain leave or approval of the Court to represent them. Furthermore, the fact that the plaintiffs are suing in a representative capacity ought to have been shown on the writ and statement of claim, learned Senior Advocate argued. He cited Akande v. Araoye (1968) NMLR 283; Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 242 at 353; Ifekwe v. Madu (2000) 14 NWLR (Pt. 686) 459 at 478 and Order 4 Rule 1 of the High Court of Eastern Nigeria and now Anambra State.
Learned Counsel for the respondents, Mr. Ben Anachebe, submitted on Issue No 3 of Respondent’s brief that the appellants cannot raise in this appeal the issue of competence of the respondents to maintain the action as the issue was very well expressed by the learned trial Judge in his judgment. He argued that in the absence of a cross-appeal the appellants cannot raise the issue. He pointed out that the respondents sued for the protection of not only their individual rights but for the protection of the rights of all Omenu family members excluding the 1st appellant when they claimed in the first head of their reliefs. He finally submitted that it is now too late for the appellants to raise the issue whether the respondents can sue in their own right or not.
With respect, I do not agree with him that the issue cannot be raised in this Court. The competence of a person to file an action relates to jurisdiction and it can be raised in this Court. The respondents cannot shut out the appellants from raising the issue merely because “the issue was very well expressed by the learned trial Judge in his judgment.” That law is strange to me, if it is law at all.
It is clear that both issues are confined to the competence of the plaintiffs/respondents to sue in the matter. As they do not extend to the competence of the defendants/appellants to defend the action, I shall not go there. This is because parties are, bound by the issues formulated in their briefs. In other words, a party cannot advance an argument outside the issue or issues formulated in the brief without leave of Court. This stems from the larger ambit of our adjectival law that parties are, bound by their briefs.
On the issue of competence of the plaintiffs/respondents to maintain the action, the learned trial Judge said at page 141 of the Record:
“The present suit is instituted by four members of Omenu family in their own right. This fact, in my considered view, has nothing whatsoever to do with the merit of their action. This is because a member of a family having an interest in a family land may sue when the head of family neglects or refuses to do so. It is my view that having taken the action, the person must adduce sufficient evidence to prove his case.”
The Court of Appeal made reference to the above statement of the learned trial Judge. The Court said at page 246 of the Record:
“Before concluding this judgment, I feel obliged to say a few words about the remarks made by the learned Senior Counsel for Respondents, all be it as an aside, i.e. that none of the Appellants was the Head of the Family, and that they all sued individually, and not for and on behalf of the Family. The short answer to this quibble was given by the learned trial Judge of the lower Court himself when he stated in his judgment at page 141 of the records as follows:”
The Court of Appeal then quoted the above statement of the learned trial Judge.
As it is, Issue No. 3 focuses on the above statement of the Court of Appeal and therefore should be taken in that light only.
Paragraphs 1 and 2 of the Statement of Claim aver as follows:
“1. The plaintiffs and the defendants are members of Omenu family of Umueri Ogbunike in Anambra Local Government Area.
2. The Omenu family of Umueri Ogbunike are the owners of that piece or parcel of land known as and called Ana Owelle situate at Umueri Ogbunike and verged green in plan No. MG AN 245/86 filed by the plaintiffs in this suit.”
Paragraphs 2 and 3 of the Statement of Defence aver as follows:
“2. The defendants admit paragraph 1 of the Statement of Claim.
3. Save that the Omenu family of Umueri Ogbunike are the owners of that piece or parcel of land known as and called Ana Owelle situate at Umueri Ogbunike, the defendants deny the rest of the averments in paragraph 2 of the Statement of Claim and will put the plaintiffs to very strict proof.”
It is clear from the above pleadings that parties agree:
(1) that the plaintiffs and the defendants are members of Omenu family of Umueri Ogbunike in Anambra Local Government Area
(2) that the Omenu family of Umueri Ogbunike are the owners of piece or parcel of land known as and called Ana Owelle. It should be mentioned that the Ana Owelle element is averred to in paragraph 3 of the Statement of Claim.
It is elementary law that matters admitted in pleadings need no further proof. See Economides v. Thomopulous Ltd. (1956) 1 FSC 7; Olubode v. Oyesina (1977) 5 SC 79; Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Sketch v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678.
It is good law that members of a family can sue in respect of family property. This was the position of the two Courts below and they are right. In Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12, this Court held that a member of a family has capacity to sue to protect family property. Similarly in Babayeju v. Chief Ashamu (1998) 9 NWLR (Pt. 567) 546, this Court also held that any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest whether with the consent or without the consent of the other members of the family, for if he does not act he may find himself being held to be standing by when his rights were being taken away. See also Ugwu v. Agba (1977) 10 SC, 27; Melifonwu v. Egbuyi (1982) 9SC; Orogan v. Soremekun (1986) 5 NWLR (Pt. 44) 688; Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275; Odeneye v. Efunuga (1970) 7 NWLR (Pt. 164) 618.
It is in the light of the above authorities that I am unable to agree with the submission of learned Senior Advocate for the appellants that the plaintiffs/respondents ought to have commenced the action in a representative capacity and not in their personal capacity. And what is more, learned Senior Advocate did not see the need to file a cross-appeal against the judgment of the learned trial Judge on the issue.
Learned Counsel cited the case of Ekpendu v. Erika (1959) 4 FSC 79. With respect, the case is not applicable. In that case, the Federal Supreme Court decided that a sale or lease of family land carried out by the head of family, in which the principal members of the family do not concur, is voidable. A sale or lease of such land by principal members without the concurrence of the head of the family is void ab initio. The case, which dealt with the alienation of family property, cannot be authority for suing on family property.
Assuming that I am wrong and the action ought to have been instituted in a representative capacity, what is the position of the law? The rule as to representative actions was derived from the Court of Chancery in England, which required the presence of all parties to an action so as to put an end to the matters in controversy. See Anatogu v. Attorney General of Eastern Nigeria (1976) 11 SC 109. The rule has been described as a “rule of convenience only.” See Hamisu v. Abergavenny (Marquis of) (1887) 3 TLR 324 at 324. As a rule that was originated for convenience, and for the sake of convenience, it has been relaxed, (see Bedford (Duke of) v. Ellis (1901) AC 1 at page 8). As a rule of convenience, it is a matter, which ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice. See Anatogu v. Attorney General of Eastern Nigeria. In other words, Courts of law should not myopically follow the rule rigidly and fall into a big ditch and find themselves in a state of mirage where it becomes impossible to retrace their steps to do justice in a given case. On the contrary, Courts of law should invoke the rule where it is convenient to do so to assist them in doing justice in a given case. It is this aspect of doing justice in a case that vindicates the element of convenience built into the rule. The rule is not cut-and-dry. After all, justice is paramount in the judicial process. It is the cynosure of the process.
In Wiri v. Wuche (1980) 1-2 SC 1, this Court dealt exhaustively on representative actions. In the case, the Court said:
“The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and the authority of those they represent, this Court does not and will not upset a judgment of the lower Court merely on a bare objection of failure to obtain the approval of the Court.”
The Court had earlier said at page 18 of the Report:
“There is no doubt that the authority for plaintiffs to sue on behalf of a community must come from that community and the order for leave to prosecute on behalf of a community under the rules of the High Court of Eastern Nigeria must come from the Court (and, here, we are in agreement with the decision in Oguchi v. Egbuchi (Supra) (see also the decision of the High Court of Eastern Region in Nsima v. Ole Nnaji and others (1961) 1 All NLR 441; otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity.”
It was after the Court made the above statement that it came to the conclusion that the Court will not upset a judgment of a trial Judge merely on a bare objection of failure to obtain the approval of the Court. The decision of this Court in Wiri v. Wuche comes to this: although leave is necessary at the trial Court to sue in a representative capacity, an appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court. In Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 342, the Court held that where a plaintiff institutes an action in a representative capacity, leave of Court to sue in representative capacity is superfluous. See also Ifekwe v. Madu (2000) 14 NWLR (Pt. 688) 459, where the Court also held that failure to obtain the leave of Court to sue in a representative capacity is not fatal as to vitiate the proceedings. The Court cannot therefore strike out or dismiss an action just because the plaintiff did not obtain the leave of the Court to sue in a representative capacity, as this will defeat the justice of the case. See also Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
Let me return to the submission of learned Senior Advocate in respect of Issue No. 3. I have taken it a bit. I should complete it. While Issue No. 3 is confined to the plaintiffs/respondents, the part of the submission of learned Senior Advocate strays to the defendants/appellants. I should take the submission further to justify the position I have taken.
Learned Senior Advocate submitted that when one looks at the position of the plaintiffs/respondents and the defendants/appellants in this case, the action was not properly constituted and that the action was commenced and presented as if it were a personal action between the plaintiffs and the defendants. Citing Awoniyi v. Rosicrucian Order (2000) 10 NWLR (Pt. 676) 522 and Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348, learned Senior Advocate contended that none of members of Omenu family apart from the plaintiffs and defendants in their personal capacities were made parties.
As indicated above, the above submission moves outside Issue No. 3 when it extends to the defendants/appellants. And that is against the law of briefs, as it relates to bindingness of issues. I had earlier dealt with that. I will not go further.
I should take the two cases cited by Counsel. In Awoniyi, this Court held that in civil actions, all parties necessary for the invocation of the judicial powers of the Court must come before it so as to give the Court jurisdiction to grant the reliefs sought. This decision of this Court should be taken in the context of the case. The issue was the failure on the part of the applicant in a motion to make the Registrar General of the Corporate Affairs Commission and the Inspector General of Police, parties. It was in that context this Court arrived at the decision. The case did not involve representative action.
In Ayorinde, this Court held that where there is no competent defendant on record before the case went to trial and throughout the trial, the action in respect thereof would be struck out on the ground that it is improperly constituted. In view of the fact that paragraph 1 of the Statement of Claim averred that the plaintiffs and the defendants are members of Omenu family, an averment which was admitted by the defendants/appellants, not much can be made out of the case. This is not a case where all the defendants sued are not members of the Omenu family. It is rather a case where all the defendants, other than the 7th defendant, sued are members of the Omenu family and so an order of striking out the suit, in my humble view, is neither here nor there.
Let me pause here to deal with two different reliefs sought by the appellants in their briefs: the main brief and the reply brief. While they ask that the appeal be allowed and the judgment of the Court of Appeal be set aside in their main brief, they ask for either striking out the case for being improperly constituted or set aside the judgment of the Court of Appeal in its entirety. This is a very new one in the law of brief writing and I do not think I am prepared to learn it.
It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or arguments raised in the respondent’s brief call for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right, any lacuna or error in the appellant’s brief.
The respondent’s brief did not deal with striking out of the plaintiffs/respondents’ case. There was therefore no legal basis for the last sentence in the reply brief as it affects a supposed alternative order of striking out.
With the diversion on the curious relief in the reply brief, I should now take some evidence to show that the parties, other than the 7th appellant, are members of the Omenu family. The 6th defendant/appellant, as DW1 said in evidence in-chief at page 8 of the Record:
“My name is Nathan Mozie. I live at Omenu Quarters, Omueri, Ogbunike. I am a retired schoolteacher. I know the first defendant. We are from the same family. We have a Omenu family meeting. In 1978, I was the secretary of the Omenu family meeting. During my tenure of office as the Secretary of Omenu family meeting, I received a letter from the first defendant addressed to the family meeting through me as the Secretary.”
DW2, the 2nd defendant/appellant, gave evidence as a member of the Omenu family. He was also a member of the Omenu Land Allocation Committee. It is clear from the evidence of DW1 and DW3 that all the parties in this matter, other than the 7th defendant/appellant, are members of the Omenu family. PW2, as 2nd plaintiff/respondent said in evidence that 1st defendant/appellant is a member of the Omenu family. He, PW2, is also a member of the Omenu family. It is clear from the totality of the evidence that apart from the 7th defendant/appellant, all other persons are members of the Omenu family. I sound repetitive here. I decided to sound repetitive intentionally.
It is not my understanding of the law that all the members of the Omenu family must be specifically named as parties. That will be enumerating or parading a village or community of names which is most unnecessary. That type of enumeration can only be useful in a census exercise, not in a Court of law. So much stationery and time will be wasted and for no good reason.
Another aspect of the law on representative action is that the persons who are to be represented and the persons representing them must have the same interest. In other words, both must have a common interest and a common grievance. Accordingly, where there is a common interest and a common grievance, a representative action will be in order. See Bedford (Duke of) v. Ellis (1910) AC 1 at page 8.
It is not difficult to locate the common interest and the common grievance of the parties in this appeal. It is the Omenu family land, part of which was allocated to the 1st appellant. This is common to all the parties except the 7th appellant who is the Registrar of Deeds and therefore not a member of the family. The land is called Ani Owelle by both parties. That is the common reference point and the melting pot. Can there be a better case of common interest and common grievance than this? I think not.
It is clear from the above that whichever way one looks at Issue No 3, it cannot be resolved in favour of the appellants. This is because the law is certainly not in their favour. On the contrary, the law is, in favour of the respondents, and I so hold.
Let me now take Issue No 1 in the appellants brief and it is whether the 1st appellant was allocated only four plots or an indefinite or unlimited number of plots.
Learned Senior Advocate for the appellants submitted that the learned trial Judge was right in his judgment rejecting the evidence of the respondents that only four plots were applied for in 1977 by the 1st appellant. He submitted that the respondents did not discharge the onus to prove that only four plots were applied for by the 1st appellant. He cited ACB v. Emostrade (2002) 8 NWLR (Pt. 770) 501; Elias v. Omo-Bare (1982) 5 SC 25 and Union Bank v. Nnoli (1990) 1 NWLR (Pt. 145) 530 at 544. He examined the evidence of PW1, PW2, DW1, DW2 and Exhibits 1, 3, 8, 9, 12, 13 and 14.
Learned Counsel for the respondents on Issue No 1 in the respondents brief, submitted that the Court of Appeal was right in holding that the learned trial Judge was wrong in his judgment on the number of plots applied for by the 1st appellant. He called in aid the evidence of PW2.
The evidential burden of proof that the 1st appellant was allocated indefinite number of plots shifts to the appellants after the respondents proved that only four plots were allocated to the 1st appellant. See sections 136 and 137 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria. See also Balogun. v. Labiran (1988) 3 NWLR (Pt. 80) 66; Usman v. Jusfa (1997) 1 NWLR (Pt. 483) 525; Braimah v. Abasi (1998) 13 NWLR (Pt. 581) 167; Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490.
Did the 1st appellant discharge the burden placed on him? In other words, did he give evidence that he was allocated indefinite or unlimited number of plots? In his evidence in-chief, 1st appellant as DW3 said at page 99 of the Record:
“I put up an application for the land to the family in 1978. After the family had looked into the application, I was granted the land ... The land Committee carved out the land for my cottage hospital and residential quarters.”
Under cross-examination, 1st appellant said:
“I applied for a piece of land for building a hospital with residential quarters ... I specified that my application is for land to erect a hospital with residential building. I left it open for the authorities in the family to decide on the area that will meet my needs.”
I do not see any evidence on the part of the 1st appellant that he applied and was granted an unlimited number of plots. By the last sentence above, it is clear that the authority to grant number of plots of land to the 1st appellant was with the family of the respondents, as in his own words, “I left it open for the authorities in the family to decide on the area that will meet my needs.” In the exercise of their authority, the family decided on four plots. I ask: why the furore? After all, the “authorities in the family” in the context of the evidence of 1st appellant gave final stamp or provided the final stamp and it is four plots. Period or full stop.
What did the respondents say about the issue? PW2 said in evidence in-chief at pages 56 and 57 of the Record:
“In 1977, the 1st defendant applied to the family for four plots of land on which to build a cottage hospital. The family granted the application. In compliance with the usual practice, the members of the land Committee, to which the 2nd – 6th defendants belonged at the material time, were asked to carve the four plots for the 1st defendant. The four plots would measure 1847.506 sq. meters ... After the grant of the land, there was disaffection and enmity amongst the members of the family. This was because, the portion granted to the 1st defendant by the family and the portion he later claims as having been granted to him by the family was different. The land he claimed was larger than the land he was granted. The land he claimed measured 1.824 hectares or 18,239.186 square metres. The place where he now erected his residential building is not the place he was granted the four plots.”
The above is a more cogent evidence which stands the evidence of DW1 on the head and beyond to a standstill. It overshadows the evidence of DW1. Witness clearly said in evidence that the land 1st appellant claimed was larger than the land he was granted. Even going by the evidence of 1st appellant as stated above, he did not make out a case for allocation of unlimited plots.
Exhibit 12 cannot be useful to the appellants because it did not contain the number of plots allocated to the 1st appellant. On the contrary Exhibit 12 was the application by the 1st appellant. An application can ask for anything under the sun, including the unlimited number of plots but the family may decide to give a specified number of plots.
Based on the evidence before the learned trial Judge, the Court of Appeal said at page 248 of the Record:
“In the similar manner, since the 1st Respondent took more land than was originally granted to him without recourse to the family, such taking of extra land was done fraudulently and must be set aside.”
In the absence of any competing evidence on the part of the appellants, I find it difficult to hold that the above decision is wrong, particularly to the effect that “the 1st appellant took more land than was originally granted to him.”
The above evidence apart, it is not the usual practice for families to allocate unspecified or unlimited plots of land to persons. The usual practice is that specific number of plots is allocated to persons in need. And that is the case of the respondents. The case of the appellants is a very tall one beyond the tallest human being on earth, and this Court cannot reach that height. Where a practice has been for a very long period, probably competing with time immemorial, the burden is on the party taking the contrary position to lead evidence that the practice was not followed intentionally. I do not see any such evidence on the part of the appellants.
Accordingly, I resolve Issue No 1 in favour of the respondents. I do
not see any need to take the other issues. My cup in this appeal is full. I
should stop here. In sum the appeal fails and it is dismissed. The judgment
of Court of Appeal is affirmed. I award
Judgment delivered by Idris Legbo Kutigi, J.S.C.
I
have had the privilege of reading in advance the judgment just delivered by
my learned brother Niki Tobi J.S.C. I agree with his reasoning and
conclusions. The reliefs claimed by the Plaintiffs/Respondents are clearly
for the benefit of the entire Plaintiffs’ Omenu family including the 2nd
to 6th Defendants/Appellants and all adult members of the family.
Again the judgment and orders of the Court of Appeal clearly show that they
are all for the benefit of the Plaintiffs and the 2nd to the 6th
Defendants and all adult members of Omenu family.” The appeal in my
view lacks merit. It is accordingly dismissed with
Dissenting Judgment delivered by George Adesola Oguntade. J.S.C.
The respondents, who are adult members of Omenu family of Umueri Ogbunike of Anambra State brought their suit at the Onitsha High Court, as plaintiffs, claiming against the present appellants, as the defendants, for the following reliefs:
“i. A declaration that the plaintiffs including the 2nd to the 6th defendants and all the adults of Omenu family are entitled to the customary right of occupancy relating to the piece and parcel of land known as and called Ana Owelle situate at Umueri Ogbunike except the area denoted by plan No. ECAS 4/79 of 13/1/79 measuring 1847.506 square metres granted to the 1st defendant by the 2nd to 6th defendants on or about July, 1978 with the consent and authority of the whole Omenu family. The exact delineation of the said land is shown in Plan No MG AN 245/86 verged red, yellow and green.
ii. A declaration that the purported grant by the 2nd to the 6th defendants to the 1st defendant of a larger area of the land other than that denoted in plan No CAS/287/82 of 15/5/82 containing 18.239.186 square metres in the building certificate of occupancy registered as No 32 at page 32 in Volume 555 of the land Registry at Enugu and verged yellow in plan No MG AN 245/86 is done in fraud of the plaintiffs and other adult members of Omenu family except the 2nd to the 6th defendants and the said document or grant is void and of no legal effect.
iii. Rectification of the Register in the Land Registry, Enugu regarding the said building certificate of Occupancy No 32 at page 32 in Volume 555 of the Land Registry Enugu issued in favour of the 1st Defendant.
iv. Perpetual injunction restraining the 1st defendant himself, his servants, agents and/or privies from further trespassing on land or lands outside the area granted to the 1st defendant denoted in Plan No ECAS 4/79/86.
v. An injunction restraining the 2nd to the 6th defendants by themselves their servants and agents from alienating the said portion of land to the 1st defendant without the consent and authority of the plaintiffs and other adult members of the said Omenu family.”
The parties filed and exchanged pleadings after which the suit was tried by Amaizu J. (as he then was). On 14-07-95, the trial judge dismissed the plaintiffs’ claims in their entirety. Dissatisfied, the plaintiffs brought an appeal before the Court of Appeal Enugu Division (i.e. the Court below). On 14/6/2001, the Court below, in a unanimous judgment allowed the appeal. The judgment of the trial Court was set aside and the reliefs sought by the plaintiffs before the trial Court were granted. The Defendants were aggrieved by the judgment of the Court below. They have come before this Court on a final appeal. From their sixteen grounds of appeal, the defendants/appellants have distilled eight issues for determination in this appeal. The issues read:
“1. Whether the Court below was right to rely on EXH 1, loss of the family’s minute book and the evidence of PW1 to uphold the plaintiffs’ evidence that only 4 plots of land measuring 1847.506 square meters, as against an indefinite number of plots, was approved by the family at the family meeting contrary to the findings of the learned trial Judge who disbelieved the plaintiffs’ evidence that only four plots of land was approved by the family for the 1st defendant/appellant.
2. Whether the Court below was right when after finding the defendants/appellants guilty of forgery, it refused or declined to consider the 2nd issue for determination relating to the quantum or number of plots approved by the family for the 1st appellant when that issue was indispensable in the determination of the issue of fraud and should have determined the appeal one way or the other.
3. Whether the Court below was right in castigating and reversing the submission of the learned Counsel for the defendants/appellants that as none of the plaintiffs/respondents was the head of the family and sued in their individual rights, the action was wrongly or improperly constituted and incompetent.
4. Whether the Court below was right in its assessment of evidence on which its finding of fraud was based, to rely on EXH. 6 and the evidence of PW.l. which it isolated for commendation as independent and impartial evidence which lived up to its bidding.
5. Whether the Court below has not misapprehended or misconstrued the standard of proof required in proof of allegation of fraud which is a criminal offence, and whether this has not occasioned a miscarriage of justice to the detriment of the appellants.
6. Whether the Court below was right in failing to construe and consider the effect, import and meaning of EXHS. ‘2A’, ‘8’, ‘9’ and ‘14’ in the light of the case before them, which led them to arrive at a wrong conclusion that fraud was proved.
7. Whether the Court below had not denied the appellants a fair hearing in basing its judgment on the evidence of PW. l and EXHS. 1, 2 and 6 which were in favour of the plaintiffs without any reference or consideration of evidence of the defendants and EXHS. 2A, 3, 8, 9 and 14, which are favourable to the defendants/appellants.
8. Whether the Court below has not misdirected itself by non-direction in failing to observe that on documentary evidence before the Court, the plaintiffs/respondents have tendered conflicting evidence in prove of intention to defraud.”
The plaintiffs/respondents raised four issues for determination, which read:
“1. Whether the Court of Appeal was right in evaluating the evidence and drawing its own conclusions based on all the materials before the Court?
2. Whether it has not been fully been established beyond all reasonable doubt that the 1st Appellant had by fraudulent and or other dubious means attempted to appropriate for himself more land than had been allotted and approved by the family for his use?
3. Whether the Respondents had the competence to maintain this action?
4. Whether the Court of Appeal was in error in commending the former Surveyor-General Mr. Obianwu (P.W.I) as an independent and impartial witness in this case?”
I am satisfied that the issues for determination raised by the plaintiffs are fully subsumed under the defendants’ four issues. I shall be guided in this judgment by the defendants’ issues. I need to expose fully the nature of the dispute leading to this appeal as ventilated by parties in their pleadings. The case made by the plaintiffs in their Amended Statement of Claim may be summarised thus:
The plaintiffs and the defendants belong to Omenu family of Ogbunike which family owned a parcel of land called Ana Owelle. The members of the family used the land in common for farming. A portion of it however was reserved for residential buildings. The practice was that any male adult member of the family who wanted a land for a building applied for and was given a plot upon payment of a token sum of one hundred Naira. In December, 1977, the 1st defendant, at an informal meeting of Omenu family in the house of the 3rd defendant applied in writing to be granted four plots of land to build a cottage hospital. The request of the 1st defendant was granted. In 1978, the membership of the Omenu family land Committee was reconstituted.
The re-constitution brought in the 1st defendant and 2nd to 6th defendants as members of the land Committee. The four plots of land granted to 1st defendant was as depicted on a plan No MG AN/245/86 Ref. To Plan No E.C.A. S4/79, which was deposited by 1st defendant at the Surveyor-General’s office, Enugu.
Surprisingly however, the 1st defendant cleared more than the four plots granted him by the family and laid the foundation for a building. The 5th defendant at a family meeting raised the matter but the 1st defendant assured the members that he was not taking more than the four plots granted him by the Omenu family. The family demanded to see a copy of the plan of the land surveyed by the 1st defendant. He promised to produce it later. The 2nd defendant later told a meeting of Omenu family members that six plots and not four were granted to the 1st defendant. However, it was later discovered that 1st defendant was granted 28 plots of land measuring 1,824 hectares instead of the four plots authorised by the family. It was discovered that the 1st defendant had colluded with 2nd to 6th defendants to have 28 plots instead of four allocated to himself. It was in these circumstances that the plaintiffs brought their suit claiming as earlier set out in this judgment.
The 1st
to 6th defendants filed a joint Statement of Defence wherein they
denied most of the facts pleaded by the plaintiffs. It was pleaded that the
Plan No. MG/AN/245/86 did not represent the land granted by the Omenu family
to the 1st defendant. The true plan according to the defendants
is the one numbered ECA.4/79 dated 13/l/79. It was pleaded that the 1st
defendant applied in writing on 5/8/78 for land to build a cottage hospital
and a residential building. The defendant paid
On 17/5/79, an agreement was executed in first defendant’s favour and the plan of the land granted him was therein recited. The land so granted to 1st defendant measured 1,824 hectares and the land was shown to the Surveyor by one Albert Onunkwo, the head of Omenu family. A certificate of occupancy was issued in favor of the 1st defendant, there being no objection from the Omenu family. All the members of Omenu family were aware of the grant as a traditional ceremony called Ikpoba-Ani at which members of the family and the head of the family were present was done in 1983. The defendants denied that there was any fraud involved in the grant of the land to the 1st defendant.
The 7th defendant, the Registrar of Deeds denied the facts pleaded by the plaintiffs. He however admitted that the land in dispute belonged to the Omenu family. He pleaded that he acted in good faith without malice in registering the certificate of occupancy in favour of the 1st defendant.
On the state of pleadings before the trial Court, it would appear that there was only a small issue involved in the dispute. The plaintiffs pleaded that the Omenu family granted to the 1st defendant only four plots of land whilst the 1st to 6th defendant claimed that 1,824 hectares of the land owned by Omenu family was granted to the 1st defendant. The trial Court needed to determine which of the two conflicting versions was the more probable.
One of the issues identified by the defendants/appellants as arising for determination in this appeal raises a fundamental question as to the competence of the suit brought by the plaintiffs. Issue No .3 relates to whether or not the plaintiffs’ suit at its inception was properly constituted. The issue ought to be taken first because of the effect it may have on the other issues raised.
The appellants’ Counsel, Tochukwu Onwugbufo Esq. S.A.N. in his argument in support of issue 3 called our attention to the fact that the plaintiffs had initiated the action in their personal names thus giving the first impression that the land in dispute was their personal property. It was further stated that the plaintiffs had neither sought nor obtained the leave of the trial Court to bring the suit in a representative capacity as stipulated under Order 4 rule 3 of the Anambra State High Court Rules. Similarly, they had not indicated on the Writ of Summons that they were suing in a representative capacity as prescribed under Order 4 rule 1 of the same Rules. Learned Senior Counsel referred us to Jereiah Nsima v. Ole Nnaji & Ors. [1961] I All N.L.R. 441; Mba Nta & Ors. v. Ed. Nwede Anigbo & Anor. [1972] 5 SC. 156; Akande v. Araoye & Anor. [1968] N.M.L.R. 283; Oyewole v. Lasisi [2000] 14 N.W.L.R. (Part 687) 242 at 353; and Ifekwe v. Madu [2000] 14 N.W.L.R. (Pt. 686) 459 at 478-479. Counsel observed that it was not made clear which adult members of the Omenu family supported plaintiffs’ suit.
Next, Counsel discussed the nature of the suit brought by the plaintiffs. The plaintiffs were by their pleadings adult members of the Omenu family. They pleaded that more land was granted to the 1st defendant than was approved for him by the family. The 2nd to 6th defendants who were members of the Omenu family’s land allocation Committee were alleged to have colluded with the 1st defendant in the matter. Counsel submitted that the plaintiffs had not stated:
(1) the number of the membership of the Omenu family
(2) the number of the adult members they were representing so that it could be ascertained if those in plaintiffs’ camp were in the majority. It was not made clear if the 2nd to 6th defendants were being sued as the representatives of Omenu family.
If such was the case, it would have been necessary for leave to be obtained to enable the 2nd to 6th defendants defend the action in a representative capacity - Dokubo & Anor. v. Bob-Manuel & Ors. [1967] I All N.L.R. 113. It was submitted that since the plaintiffs were not the heads of the Omenu family in line with the decision in Ekpendu v. Erika [1959] 4 F.S.C. 79, the plaintiffs’ right to sue could only have been derived from under a leave granted to them pursuant to Order 4 rule 3 of the Anambra State High Court Rules - Bulai v. Omoyajowo [1968] N.M.L.R. 160; Adekunle v. Adewale [1983] 8 SC 98; Otapo v. Sunmonu [1989] 2 NWLR (Part 87) 587 and Adewunmi v. A-General, Ekiti State [2002] 2 NWLR (Part 751) 474 at 516. Counsel finally submitted that in the manner plaintiffs suit was pursued, the members of Omenu family were without the necessary distinction made both the plaintiffs and the defendants at the same time contrary to the decision in Okafor v. Nnaife & Ors. [1973], 3 E.C.S.L.R 261 and Onwumalu & Ors. v. Osadume [1971] 1 All N.L.R. 14.
The standpoint of respondents’ Counsel was that it was no longer open to the appellants’ Counsel to argue that the suit was not properly constituted in view of the fact that the same point had been unsuccessfully raised before the trial Court and the defendants who had judgment in their favour had not raised a cross-appeal against the judgment of the trial Court before the Court below.
In reacting to the contention that plaintiffs’ action was not properly constituted, it is important to bear in mind that the consequence of an action brought, which was not properly constituted is the impairment of the jurisdiction of the Court to adjudicate. When the proper parties are not before the Court, such that those who may be affected by the orders of the Court are not before it, the proper course a Court must follow is to direct that all persons interested or likely to be affected by the result, are brought before it. In Oloriode & Ors. v. Oyebi & Ors. [1984] N.S.C.C. 286 at pp. 295-296, this Court per Obaseki JSC said of such situation:
“The statement of claim further discloses in paragraph 9 that the title to the land devolved on Ladega Oyero (deceased) according to native law and custom and that on his death his children, Taiwo Areje (deceased) otherwise known as Agbenaje) and Osu Kehinde (otherwise known as Edun) inherited the land according to native law and custom and at all times exercised all acts of ownership and possession without disturbance from anyone. The children of Taiwo Areje and Osu kehinde are still alive.
The question therefore arises whether an order of dismissal in such a case is not prejudicial to the interest of the Osu Kehinde branch of the Ladega Oyero family or rather to the Ladega Oyero family as a whole. I think it is and the justice of the case will be better met by an order striking out the appellants’ claim.
In the final analysis, the question to be determined in this appeal is whether the appellants had locus standi to claim the declaration of title when the facts pleaded in their statement of claim show that title to the land in dispute according to native law and custom vests in the Ladega Oyero family (consisting of Agbenaje family and Osu Kehinde family).
When a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiceable. See Flast v. Cohen 392 US 83 88 S.Ct. 1942; Senator Adesanya v. President of Nigeria and Another (1981) 2 N.C.L.R. 358.
Having pleaded facts which show that the Ladega Oyero family and not Agbenaje family owns the land in dispute, the Agbenaje family is incompetent to prosecute the claim as it stands and since it was not amended, the proper order to make will be an order to strike out the claim and action.”
And at page 297 of the same report, Eso J.S.C. on the same point observed:
“if a person prosecuting an action has no locus standi, should the action be dismissed”? Chief Williams submitted, and I am in full agreement, that a person who asserts the right claimed or against whom the right claimed is exercisable must be present to give the Court the necessary jurisdiction. Presence here is not just physical presence. He can put in appearance by Counsel, but if he makes a claim and in a second breath asserts that the claim belongs to another person, that other person cannot be said to be represented to prosecute the claim that has been made on his behalf. Indeed, he may not even be aware of such claim. And the person making the claim will have no standing before the Court as he has no interest in the claim he makes. It is in this context that I will admit the linking of locus standi with the jurisdiction of the Court, for as Obaseki J.S.C. said in the case of Senator Adesanya v. President of Nigeria (1981) 2 N.C.L.R. 358 at p. 393, it is the cause of action that one has to examine to ascertain whether there is disclosed a locus standi or standing to sue.
I have come back again to what the order of the Court ought to have been in Senator Adesanya v. President of Nigeria (supra), the claim of the plaintiff was dismissed and not struck out. See the judgement of Fatai Williams C.J.N. at p.378 of the report. All the Justices in the case agreed with that order. The Supreme Court in Abubakri v. Smith 1973 6S.C.31 merely dismissed the appeal of the appellant from the judgment of the High Court, which had earlier dismissed plaintiff’s claim. The question of what order to make in the circumstance was not raised before the Supreme Court in the two cases. Incidentally the Court in Abubakri v. Smith (supra) approved of, and applied the reasoning of Plowman J. in Heyting v. Dupont 1963 1 W.L.R. 1192 who, instead of dismissing plaintiff’s claim, merely indicated that he had no jurisdiction to adjudicate upon the plaintiff’s claim See p. 1199.
I think the proper order when the Court has no jurisdiction to adjudicate upon a mater for whatever reason, like the parties before the Court having no locus standi, is to strike out the action. It is for these reasons and the reasons well stated by my brother Irikefe J.S.C. in his judgment that I will also allow this appeal and strike out the claims before the Court.”
At this stage, it is necessary to bear in mind the terms of Order 4 rule 5 of the Anambra State High Court rules which provides:
“5 (1) If it shall appear to the Court, at or before the hearing of a suit, that all the persons who may be entitled to or who claim some share or interest in the subject matter of the suit, or who may be likely to be affected by the result, have not been made parties, the Court may adjourn the hearing of the suit to a future day, to be fixed by the Court, and direct that such persons shall be made either plaintiffs or defendants in the suit, as the case may be. In such case the Court shall issue a notice to such persons, which shall be served in the manner provided by the rules for the service of a writ of summons or in such other manner as the Court thinks fit to direct; and on proof of the due service of such notice, the person so served, whether he shall have appeared or not, shall be bound by all proceedings in the cause; provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may, at any time before judgment in the suit, apply to the Court for leave to appear, and such leave may be given upon such terms (if any) as the Court shall think fit.
(2) The Court may, at any stage of the proceedings, and on such terms as appear to the Court to be just, order that the name or names of any party or parties, whether as plaintiffs or defendants, improperly joined, be struck out.”
The purpose of Order 4 rule 5 above is to ensure that Courts bear in mind, the necessity to ensure that the proper parties are before the Court and to take remedial steps to save the situation where an action is not properly constituted.
I have made the point above in order to show that where an action is not properly constituted, the jurisdiction of the Court to adjudicate cannot be invoked. The matter becomes jurisdictional and thus enables the parties to raise the issue of such improper constitution at any stage of the litigation and even for the first time on appeal. It does not matter that the point had been decided at the trial Court against the party raising it on appeal. It is better that a proper ground of appeal be raised and an issue for determination formulated on the point as this enables all parties to know what issue they are to meet on appeal.
But where it is not distinctly raised on appeal and an issue formulated thereon, an appellate Court would still allow a party to raise i |