EKEE & ORS v. IDOVIE & ORS (2020)

EKEE & ORS v. IDOVIE & ORS

(2020)LCN/14207(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 22, 2020

CA/AS/306/2017

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MR. JEREMIAH EKEE 2. MR. AYO OGHRE 3. MR. CLARK OLOMU (For Themselves And On Behalf Of The OMOSORE FAMILY Of EDHUKWE QUARTERS Irri Town Except The 1st To 3rd Defendants) APPELANT(S)

And

MR. EDHEREAKA IDOVIE 2. MR. COAST EKPRBE 3. MR. AWISIGBA OHWOVIOHWHO (For Themselves And On Behalf Of The UKULOWHO FAMILY Of Irri Town) 4. CHIEF J.I AKPOVESO 5. NIGERIA AGIP OIL COMPANY LTD 6. SAIPEN S.P.A. NIGERIA LTD RESPONDENT(S)

RATIO

WHETHER OR NOT ALL CLAIMS OF A LITIGANT MUST BE CONTAINED IN THE PLEADINGS

In OHOCHUKWU v AG RIVERS STATE & ORS (2012)LPELR-7849(SC) the Court held thus;
“A litigant who seeks to succeed in his action must state all his complaints and the remedy he is seeking in his statement of claim. What it means is that his cause of action and his grievances must be contained in statement of claim, with which he is bound, for any matter outside the periphery of the statement of claim i.e. pleadings vide evidence goes to no issue and are bound to be ignored. See Emegokwue v. Okadigbo 1973 4 SC 113; Shell B.P. v. Abedi 1974 1 SC 23, and Umoffia v. Ndem 1973 2 SC 69.”
per MUKHTAR, J.S.C (P. 35, paras. A-C). PER OBASEKI-ADEJUMO, J.C.A.

DEFINITION OF A DECLARATORY ACTION

This Court in defining a declaratory action held in PDP & ANOR v PHILIPS & ANOR (2010) LPELR- 8980 (CA) to mean;
“a declaratory action is an invitation to the Court to make a pronouncement as to the state of the law with regards to the particular circumstances of the situation.’’
per BADA JCA
In AGBOGU & ORS v EMELIFE & ORS (2013) LPELR – 21210(CA) also defining declaration held thus;
“The attributes of a declaratory action and law relating thereto have been well explained by the Supreme Court in Nwokidu v. Okanu (2010) Vol. (Pt. 1) MJSC 24 per Adekeye, J.S.C. at page 51 as follows: “I must at this stage and before considering the issues formulated for determination in this appeal, throw light into the tracts or attributes of a declaratory action generally speaking the purpose of a declaratory action sought from Court is essentially an equitable relief in which the plaintiffs pray the Court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernible from the averments in the statement of claim. In order to be entitled to a declaration, a person must show the existence of a legal right, subsisting or in the future, and that the right is contested. In other words, what would entitle a plaintiff to a declaration is a claim which a Court is prepared to recognise and if validly made, it is prepared to give legal consequence to. A declaratory action is discretionary and it is exercised upon the trial of a suit.” See also OSUJI v. EKEOCHA (2009) ALL FWLR (PT. 490) 614.” per AKEJU, J.C.A (Pp. 25-26, paras. G-E). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER NEW ISSUES CAN BE RAISED AT THE APPELLATE COURT

The 4th and 6th Respondents raised issue of no cause of action against them and that they were wrongly joined, from the record and I agree with the Appellant that they did not object nor raise any such objection by way of motion or orally to this effect in the lower Court.
More so, they are raising same for the first time without leave of this Court when it neither arose from the judgment or from Appellants’ notice of appeal, see; SOLE ADMINISTRATOR OFFA LGA v ADEGBOYE (2012) LPELR-19677(CA), where OKORO, JCA held;
“An issue is said to be new or fresh if it was not canvassed or ventilated at the trial Court and decided upon by the said Court before it is being raised at the Court of appeal. Where such new or fresh issue is to be raised leave of such fresh point or issue ought to be discountenanced and struck out. see (PETER V OKOYE SUPRA)
The Appellants could have, after leave, raised same by way of preliminary objection. See; CUTRA INT (NIG) LTD v ADELE (2018) LPELR – 44631(CA); ALL STATES TRUST BANK LTD v KING DAVIDSON ENTERPRISES (NIG) LTD (2000)LPELR – 10631 (CA); DARAMOLA v NIGERIA POLICE (CID) IDIMU POLICE DIVISION & ORS (2016)LPELR – 41464 (CA). PER OBASEKI-ADEJUMO, J.C.A.

JURISDICTION OF THE COURT TO ENTERTAIN A MATTER

More crucial is the question of whether the issue raised goes to the jurisdiction of the Court? On a closer look, the complaint is that they are not proper parties and no cause of action has been disclosed against them, therefore, on the face of it there is a defect. In MADUKOLU & ORS v NKEMDILIM (1962) LEPER- (SC);
“Before discussing those portions of the record, I shall make some observations on jurisdiction and the competence of a Court. Put briefly, a Court is competent when (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction: and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
per BAIRAMIAN, J.S.C (Pp. 9-10, paras. F-D). PER OBASEKI-ADEJUMO, J.C.A.

WHETHER A PRINCIPAL TO A DISCLOSED AGENCY RELATIONSHIP WOULD BE LIABLE FOR ANY ACT OF THE AGENTS DONE IN THE COURSE OF HIS EMPLOYMENT

It is a trite principle of law, that where an agent acts for a disclosed principal, the contract is the contract of the principal and not that of the agent, the legal effect flowing from the above is that the principal is liable for any act of the agent done in the course of the agent’s employment.
In ENL CONSORTIUM v DONASULU BROTHERS (NIG) LTD (2015) LPELR – 24680 (CA), this honourable Court held on the effect of an agent acting with the scope of his authority for a disclosed principal;
“At this juncture, it is pertinent to examine the doctrine of disclosed principal and privity of contract. A disclosed principal is the type of principal whose identity is revealed. The doctrine of disclosed principal is to the effect that a principal, whether disclosed or otherwise is in position to plead all defences available to him, but in the case of fraud, where the Agent acts within the scope of his authority or apparent, the act of fraud on the part of the agent binds the principal. See GEORGE C. ASHIBUOGWU v A.G BENDEL STATE & ANOR. (1988) LPELR – SC 25/86. Obligations of the agent vary according to the particular agreement with the principal, who is generally required to act by specific instructions and is held responsible for wrongful acts of the agent only when they fall within the scope of the legal contract. The agent, besides being paid for services, is entitled to reimbursement for particular expenses. The law is settled that an agent that acts on behalf of disclosed principal cannot incur any personality liability…”
per OBASEKI – ADEJUMO, JCA (PP. 29 – 30. PARA. A)
See also; OSIGWE v PSPLS MANAGEMENT CONSORTIUM LTD (2009) 16 WRN 1; OKAFOR v EZENWA (2002) 13 NWLR (PT. 784) 319; CARLEN (NIG) LTD. v UNIVERSITY OF JOS & ANOR (1994) 1 NWLR (PT. 323) 631; MAITURARE v SA’ADU (2018) LPELR – 46510 (CA); MUSA & ANOR v IBRAHIM (2017) LPELR – 43101 (CA); OKAFOR v EZENWA (2002) LPELR – 2417 (SC). PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the decision of Hon. Justice M. Umukoro, the Chief judge of Delta state on January 11th, 2017. The suit has a chequered history and has come up before several judges. The Appellants at the lower Court sought the following Original reliefs;
I. A declaration that the plaintiffs are entitled the (sic) statutory right of occupancy over the piece or parcel of land known and called “IRRI LOCATION “B” of Delta State an area within the jurisdiction of this Honourable Court.
II. A declaration that the Plaintiffs and the 1st to 3rd Defendants who are members of Omosore family are Joint owners of the land in dispute lying and situate at Ekpede bush.
III. The sum of N5,000,000 (five Million Naira) as damage for trespass committed by the 5th and 6th Defendants when sometimes in 1993 the 5th and 6th Defendants, their servants, agents, workmen and/or privies broke and entered into the pieces of parcel of land and committed acts of trespass thereon by embarking on oil prospecting activities.

An order of this Honourable Court directing

the 5th and 6th Defendants to recognise and/or hold the Plaintiffs as joint owners/landlords of Irri Location “B” at Ekpedebush the land in dispute.
V. An order of the Honourable Court restraining the 1st, 2nd and 3rd Defendants for themselves and on behalf of the Ukulowho’s family of Irri and all persons claiming under and/or through them from parading themselves as owners or in any interfering with the Plaintiffs’ peaceful possession of the piece or parcel of land.
VI. An order of this Honourable Court directing the 1st, 2nd, 3rd and 4th Defendants to render account of all monies collected in respect of the said piece or parcel of land and to pay over to the Plaintiffs all monies due to the Plaintiffs from such collection from 1994 until judgment is given
VII. Any other equitable reliefs as the Honourable Court may deem fit to make in the circumstances.”

The learned trial judge in his judgment dismissed the claims of the Appellants in its entirety. The Appellants dissatisfied with the judgment filed a notice of appeal on March 6, 2017 and brief of argument on 18th August, 2017 which was settled by D. E Agbaga,

Esq for D. E Agbaga & Associates of Pinnacle Chambers wherein two issues were distilled for determination;
1. Whether the Court below was right in dismissing the Appellants’ case in its entirety on account of the withdrawal of relief one of the Appellants’ Amended Statement of Claim
2. Given the state of pleadings and the totality of evidence led, whether the Court below was right in dismissing the Appellants’ case.

The 1st – 4th Respondents’ brief was filed on 23rd of April, 2018. The brief was settled by I. E. Onochoja, Esq., of Onochoja Law Chambers (Jurismetrix Attorneys), where in the following issues were distilled;
1. Whether based on the facts pleaded by the Appellants’ in their originating processes and Appellants’ Brief of Argument, is the 4th Respondent’s name liable to be struck out from this Appeal for misjoinder on the ground that he is an agent of a disclosed principal
2. Whether the Court below was right to have dismissed the claims of the Appellant.

In like manner the 5th and 6th Respondents filed their briefs on 23rd April, 2018 and 5th February, 2018 respectively.

The 5th Respondent’s brief was settled by Johnson O. Igariemu of Thompson Okpoko & Partners and the 6th Respondent’s brief was settled by Patrick Osu Esq., Olumide Akinnimi Esq., Akinola Akinyanju Esq of Ajumogobia & Okeke. The 5th Respondent distilled the following issues for determination;
1. Whether the learned trial Court was right in dismissing the entire Plaintiffs claims based on withdrawal of relief one by the Plaintiffs’ Counsel.
2. Whether after withdrawal of reliefs one of the plaintiffs’ claim, there are enough pleadings and evidence to sustain the other reliefs.
While the 6th Respondent formulated the following issues;
1. Whether based on the facts as pleaded by the Appellants’ in their Originating processes and the Appellants’ Brief of Argument, is the 6th Respondent’s name liable to be struck out from this Appeal for misjoinder on ground of being agents of disclosed principal.
2. Whether the Court below was right to have dismissed the claim of the Appellant?

APPELLANTS’ SUBMISSIONS
Counsel submits on issue 1, that the lower Court was wrong to have dismissed the

Appellants’ case in its entirety because relief one was withdrawn by the Appellants. Reliefs one and two are inconsistent and they are claims in the alternative. The failure or the withdrawal of relief one does not in any way affect the duty of the Court to adjudicate on and make pronouncement on relief two.
G.K.F INVESTMENT NIGERIA LTD v NIGERIA TELECOMMUNICATIONS PLC (2009) LPELR 1294 (SC); IKECHUKWUDE OKPOKIRI v VINCENT NWOGWUGWU & ANOR (2014) LPELR – 22497 (CA); ODUTOLA HOLDINGS LTD & ORS v MR. KUNLE LADEJOBI & ORS (2006) 12 NWLR (PT. 994) 321 at 325 E – H; AGIDIGBI v AGIDIGBI (1996) 6 NWLR (PT. 454) 300; XTOUDOS SERVICES NIGERIA LIMITED & ANOR v TAISEL W. A. LTD & ANOR (2006) 46 WRN 1 AT 26 were cited in submitting that the Courts have long recognised the right of a party to make inconsistent claims or claims in the alternative.

Counsel further submits that the Court below was duty bound to consider relief 2 of the 2nd Amended Statement of claim and all other reliefs in the event of failure of relief one. The withdrawal of relief 1 does not have any adverse legal consequence on the other claims of the

Appellants; CHIEF I. A. AKPAN v SENATOR BOB & 4 ORS. (2010) LPELR – 376 (SC) was cited in aid.

Counsel re- enforces his submission that the first issue for determination as framed by the Appellants’ counsel is clearly in the alternative and it was ably argued as such in the final written address. It is the contention of the Appellants that the lower Court below failed in its duty to consider and make pronouncement on relief 2 and the failure occasioned denial of fair trial and the attendant consequence of miscarriage of justice.

On issue 2, Appellants submit strongly that the lower Court was wrong to have dismissed the Appellants’ case in its entirety. In light of the withdrawal, the learned trial judge ought to have proceeded to determine whether there was cogent/satisfactory evidence to sustain relief two and the other reliefs sought by the Appellants.
UNITED BANK FOR AFRICA PLC v EDET OKON EFFIONG (2011) LPELR – 8934 (CA); AYANRU (RETD) v MANDILAS LTD (2007) 10 NWLR (PT. 1043) 462/477 – 478 was relied on in submitting that Relief 2 is declaratory in nature, and to be entitled to a declaratory relief, the

claimant must satisfy the Court by cogent and credible evidence and not on admission of the defendant.

Appellants further submit that the evidence given by the PW4, PW5 and also corroborated by DW8 testifying of the joint and long acts of ownership (farming) of both parties were not shaken during cross examination. The Appellants established on the balance of probabilities or preponderance of evidence that the land in dispute was commonly or jointly owned with the 1st – 3rd Respondents and their family, KAMALDEEN TOYIN FAGBENRO v GANYIYEWHE AROBADI & ORS (2006) LPELR – 1227 (SC) was relied upon.

The Appellants in their brief applied to withdraw relief III of their 2nd Amended Statement of claim and relying on their above submissions that the land in dispute is jointly or commonly owned, went on to submit that the Appellants are entitled to reliefs II, IV, V and VI of the 2nd Amended Statement of claim.

1ST – 4TH RESPONDENTS’ SUBMISSIONS
On issue one, Counsel submits that it is trite law that where an agent acts for a disclosed principal, the contract is the contract of the principal and not that of the agent and

the legal effect is that the principal will be liable for any act of the agent done in the course of the agent’s employment. Counsel further submits that the 4th Respondent was just an agent to the 1st – 3rd Respondents, therefore he has no business/stake in the matter at hand. OSIGWE v PSPLS (2009) 3 NWLR (PT. 1128) 378 @ 399 – 400 PARAGRAPHS F – C; CARLEEN (NIG) LTD v UNIJOS (1994) 1 NWLR (PT. 232) 631 AT 659 PARAGRAPH F – G were cited in aid in submitting that the 4th Respondent was wrongly joined and there is no cause of action against him and same should be struck out.

Counsel on issue 2 submits that for a claimant in any land matter to get judgment, he must prove his title in at least one of the following ways as enshrined by the Supreme Court in case of IDUNDUN v OKUMAGBA (1976) 9 – 10 SC. Counsel contends that the Appellants did not prove any of the five ways listed in the above case, but rather withdraw their relief of statutory right of ownership at the final written address.

Counsel further contends that relief 1 was the fulcrum of their reliefs in which all other reliefs was built on and since the Appellants

on their own removed the foundation, their house cannot stand. Counsel called in aid; TUKUR v SABI (2013) 10 NWLR (PT. 1363) 442 S. C. RATIO 2.; HAMID v HAMADU (2013) LPELR – 22138 (CA); JONATHAN v AWAN & ORS (2015) LPELR – 40755 (CA).

That the lower Court possessed the judicial power to dismiss the suit once it is satisfied that a dismissal will meet the justice of the case. OBASANJO v YUSUF (2004) 9 NWLR (PT. 877) PAGE 144 AT PAGES 219 – 220, PARAS. G – A.

It is the Counsel’s submission that, Relief 2 in the Proposed 2nd Amended Statement of claim is not an alternative relief to the abandoned Relief 1. The Appellants misconceived the position of the law on alternative reliefs as argued in their brief. EZEKWERE v GOLDEN GUNIEA BREW. LTD (2000) 8 NWLR (PT. 670) 648 at 656.; ONAYEMI v IDOWU (2008) 9 NWLR (PART 1092) 306 AT PAGE 336, PARAS. A – B; MERCHANTILE BANK OF NIGERIA BREWERIES LTD v ADALMA (1990) S NWLR (PT. 153) 747; ODUTOLA HOLDINGS LTD v LADEJOBI (2006) 12 NWLR (PT. 994) PAGE 321 AT PAGE 352, PARAS. E – H; MACFOY v UAC (1962) AC 152; NPA v AJOBI (2006) 13 NWLR (PT. 998) PG. 477 – 693 (SC)

were cited in submitting that the Appellants’ Relief 2 is different from an alternative relief, and that it must be stated that the reliefs are in the alternative.

In conclusion, Counsel urges the Court to dismiss this appeal in its entirety and affirm the judgment of the lower Court with substantial cost awarded.

5TH RESPONDENT’S SUBMISSIONS.
5th Respondent submits that the Appellants having withdrawn the principal relief (Relief 1), the lower Court was right and justified in dismissing the entire case. Counsel further submits that the other reliefs which are ancillary reliefs cannot sustain the Appellants’ claims. MACFOY v UAC (1962) AC 152 was cited in aid.

Counsel argues that the Appellants’ submission that Reliefs 1 and 2 are claims in the alternative is not true, this is not so stated in the Appellants’ 2nd Amended Statement of claim and merely stating the reliefs of joint ownership without pleadings to support the relief is akin to using relief to commence an action. Counsel relied on ODUMERU v ADENUGA (2000) 4 NWLR PT. 652 at 224; OBASANJO v YUSUF (2004) 9 NWLR PT. 877 AT PAGES 219 – 220, PARA G – A.

On issue 2, Counsel submits that given the state of the pleadings, the evidence led and the reliefs which the Appellants were claiming at the lower Court, the lower Court was perfectly right in dismissing the Appellants’ case.

Counsel further submits that the Appellants’ relief (iii) the sum of N 5,000, 000. 00 (Five Million Naira) as damages against the 5th and 6th Defendants cannot be granted by the Court below as there was enough evidence that the 5th Defendant did not trespass into the land in dispute.

Counsel opined without conceding that if the Appellants claim for trespass was not dismissed based on the withdrawal of relief 1, the Appellants cannot be asking for trespass against co – family members where the Appellants is asking for joint ownership and a claim for trespass can only be maintained by a party in exclusive possession.

Counsel contends the Appellants’ submission in page 13 of their brief urging the Court to allow the appeal in respect of relief ii, iii, v and vi of the 2nd Amended Statement of Claim should be dismissed by this honourable Court, as Appellants has not led credible

evidence for the grant of those reliefs. There is no testimony from the Appellants at the lower Court that Appellants and 1st – 3rd Respondents be jointly declared the owners of Irri Location ‘B’ as pleading alone does not constitute evidence, ODUMERU v ADENUGA (2000) 12 NWLR PT. 682 at 466 PARTICULARLY at 474 paragraphs C – D was relied on.
Counsel humbly urge the Court to dismiss this Appeal as same is lacking in merit.

6TH RESPONDENT’S SUBMISSION
The 6th Respondent submits on issue 1 that it was improperly joined to the suit before the lower Court and its name ought to be have been struck out from same, as every acts carried out by the 6th Respondent were acts of an agent done on behalf of a disclosed principal and therefore entitles the 6th Respondent to have its name struck out.

Counsel further submits that this Court can suo motu, even without this issue being raised in this brief, strike out the names of the 6th Respondent from the Appeal and cited in aid Order 13 Rules 16 (2) and Rule 17 (1) of the High Court of Delta state (Civil procedure) Rules, 2009.

Counsel re – enforces his submission that

the 6th Respondent acted as an agent for a disclosed principal, therefore the contract is the contract of the principal and not of the agent. The principal would be held liable for any act of the agent done in the course of the agent’s employment. OSIGWE v PSPLS (2009) 3 NWLR (PT. 1128) 378 at 399 – 400, PARAS F – C; AMADIUME & ANOR v IBOK & ORS (2006) 6 NWLR (PT. 975) 158 at 176 – 177, PARAS G – E; CARLEN (NIG) LTD v UNIJOS (1994) 1 NWLR (PT. 323) 631 AT 659 PARAGRAPHS F – G; OKAFOR v EZENWA (2002) 13 NWLR (PT. 784) 319 were cited in aid.

The 6th Respondent under the sub – heading of Non-disclosure of cause of action submits citing; RINCO CONSTRUCTION COMPANY LIMITED v VEEPEE INDUSTRIES LIMITED & 1 ORS (2005) 9 NWLR (PT. 929) 85 AT 99 PARAS. D – H; COOKEY v FOMBO & 1 ORS (2005) 15 NWLR (PT. 947) 182 AT 202 PARS E – F; OSIGWE v PSPLS MANAGEMENT CONSORTIUM LIMITED & 13 ORS (2009) 3 NWLR (PT. 1128) 378 at 399; ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ANAMBRA STATE & 4 ORS v OKAFOR & 5 OTHERS (1992) 2 NWLR (PT. 224) 396 at 431 that the entire suit before the lower Court

as evidenced in the Appellants’ statement of claim discloses no reasonable cause of action against the 6th Respondent and same should be struck out.

On issue 2, Counsel submits that the Appellants having withdrawn their principal relief, the other ancillary reliefs cannot sustain the Appellants’ claims before the lower Court. That Appellants’ suit became naked once the principal relief (relief 1) upon which other claims were founded was withdrawn and the lower Court possessed the judicial power to dismiss the suit once it was satisfied that a dismissal will meet the justice of the case. OBASANJO v YUSUF (2004) 9 NWLR (PT. 877) PAGE 114 at PAGES 219 – 220, PARAS. G – A was cited in aid.

Counsel further submits that relief 2 in the Proposed 2nd Amended Statement of Claim is not an alternative relief to the abandoned relief 1 and the Appellants misconceived the position of the law on alternative reliefs; EZEKWERE v GOLDEN GUINEA BREW LTD (2000) 8 NWLR (PT. 670) 648 at 656; ONAYEMI v IDOWU (2008) 9 NWLRR (PART. 1092) 306 AT PAGE 336, PARAS. A – B; MERCHANTILE BANK OF NIGERIA LTD v ADALMA (1990) 5 NWLR (PT. 153) 747;

ODUTOLA HOLDINGS LTD v LADEJOBI (2006) 12 NWLR (PT. 994) PAGE 321 AT PAGE 352, PARAS. E – H; MACFOY v UAC (1962) AC 152 were cited in aid.

APPELLANTS’ REPLY TO 1ST – 4TH RESPONDENTS.
Appellants in reply to the 1st – 4th Respondents’ arguments on issue 1 – misjoinder of the 4th Respondent, submits that there was no leave sought by the 1st – 4th Respondents to argue a fresh issue in their brief, as the issue didn’t rise from the grounds of appeal neither was it an issue tried at the lower Court; ODOM v PDP (2015) ALL FWLR, (PT. 7730 1962 S. C, RATIO: 1, P. 1976, PARAS. D – F; ALAWIYE v OGUNSANYA (2013) ALL FWLR, (PT. 668) 800 SC, RATIO: 3, P. 822, PARAS. E – G and it is trite that where a party fails to seek the leave of the Court before raising such, the issue, it is ipso facto rendered incompetent and would be liable to be struck out; ONI v CADBURY (NIG) PLC (2016) ALL FWLR, (PT. 827) 605 S.C, RATIO: 1, P. 621, PARAS. F – H, P. 622, PARAS. E – F were relied on.

Replying the 1st – 4th Respondents on issue 2, Counsel submits that when a claim or relief is withdrawn or

abandoned, it is as though no such claim or relief was made or ever existed; MANGIBO v OGUIDE (2010) ALL FWLR (PT. 543) 1897 C. A. RATIO: 3, P. 1903, PARAS. E – F was cited in aid.

In replying the 1st – 4th Respondents’ submission that the Court below possessed the judicial power to dismiss the suit once it is satisfied that a dismissal will meet the justice of the case, Appellants submit that a Court of law should be most reluctant in invoking its powers of dismissal and should only be resorted to as a last remedy; REGISTERED TRUSTEES OF IFELOJU FRIENDLY SOCIETY v KAKU (1991) 5 NWLR (PT. 189) 65 at 79.

In conclusion, the Appellants submit that the learned trial judge erred in law when he opted for a dismissal of the Appellants case on the ground of an already withdrawn relief.

APPELLANTS REPLY TO 5TH RESPONDENT AND 6TH RESPONDENT
The Appellants in reply to the 5th Respondent and 6th Respondent on the issue of the withdrawal of relief 1, submit that when a claim or relief is withdrawn or abandoned, it means that such a claim or relief has ceased to exist and it is as though no such claim or relief was ever made; MANGIBO v OGUIDE (2010) ALL FWLR (PT. 543)

That the trial Court erred when it held that other reliefs sought by the Appellants could not be considered without abandoned/withdrawn relief.

The Appellants further submit that their case of joint ownership was duly pleaded and evidence led in that regard. That a Court is mandatorily bound to consider and pronounce on all issues raised before it, as failure to do so amounts to abdication of its judicial responsibility and violates the right of fair hearing. UMEH v OKPALAIMA (2016) ALL FWLR (PT. 865) 112 C. A. RATIO: 7, P. 140, PARAS. E – G; JEGEDE v OLESHIN (2016) ALL FWLR (PT. 847) 555 C.A, Ratio: 5, PARAS. D – E; ANEKWE v NWEKE (2014) ALL FWLR (PT. 739) 1154 S.S, RATIO: 8, P. 1175, PARAS. A – D.

The Appellants submit further that where a trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at trial, the appellate Court is competent to re – evaluate the evidence the evidence on record in order to obviate a miscarriage of justice. NGUMA v ATTORNEY GENERAL; IMO STATE (2014) ALL FWLR (PT. 737) 699 S.C, RATIO 2, P. 717, PARAS. F – B.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Replying the 5th Respondent and 6th Respondent’s submission that the lower Court was right in dismissing the Appellants case, Counsel submits that a Court of law should be most reluctant in invoking its powers of dismissal and should only be resorted to as a last remedy; REGISTERED TRUSTEES OF IFELOJU FRIENDLY SOCIETY v KAKU (1991) 5 NWLR (PT. 189) 65 at 79. Counsel further submits that the learned trial judge erred in law when he opted for a dismissal of the Appellants case on the ground of an already withdrawn relief.

Counsel in its reply to the 6th Respondent on misjoinder submits that there is no motion on notice seeking the leave of the Court to argue a fresh issue in his brief of argument in the record before the Court. That an appeal is a complaint against a decision, arising from the matter in dispute in the lower Court. ODOM v PDP (2015) ALL FWLR, (PT. 773) 1962 S. C, RATIO: 1, P. 1976, PARAS. D – F; ALAWIYE v OGUNSANYA (2013) ALL FWLR, (PT. 668) 800 S.C, RATIO: 3, P. 822, PARAS. E – G.

It is the Appellants’ submission that the 6th Respondent never at any time in the course of this proceedings before this Court

sought the leave of the Court to raise issue 1, therefore, rendering it incompetent and liable to be struck out.ONI v CADBURY (NIG) PLC (2016) ALL FWLR (PT. 827) 605 S.C, RATIO: 1, P. 621, PARAS. F – H, P. 622, PARAS. E – F.

RESOLUTION
The issues formulated by parties in this suit are quite similar, save for semantics and the way it relates to each party. In determination of this appeal, I adopt the issue raised by the Appellant, however, I will resolve them together as the second issue feeds off issue 1 and the issue of the 5th Respondent and 6th Respondent on misjoinder and no cause of action would constitute the second issue for determination.

The Appellants have contended quite strongly in their brief that reliefs 1 & 2 in their amended statement of Claim are in the alternatives. The reliefs have been earlier reproduced at the beginning of this judgment for clarity purposes.

It is a principle of law that when a claimant seeks to claim in the alternative, he must make the reliefs different and distinct from each other and must expressly state that the reliefs are in the alternative, that is, clearly captioned.

The Supreme Court in METAL CONSTRUCTION (W. A) LTD v ABODERIN (1998) LPELR – 1868 (SC) held on the proper way of claiming in the alternative thus;
“A Plaintiff may rely upon several different rights alternatively, although they may be inconsistent. See: Philipps v Philipps (1878) 4 QBD 127 at 134. When alternative cases are alleged as in this case, the facts relating to them should be stated separately and not mixed up in order to show on what specific facts each alternative head of relief is claimed. See: Davy v Garret (1877 – 1878) 7 Ch D 473 at 489.”
per OGWUEGBU, JSC (P. 26, PARAS. C- E)
Also, IGUH, JSC further held in the same case;
“It cannot be disputed that either party to a suit may, in a proper case include in his pleadings alternative and inconsistent allegations of material facts, as long as he does so separately and distinctly. A plaintiff is thus entitled to plead two or more inconsistent sets of material facts and claim relief in the alternative thereunder. He may also rely on several different rights alternatively, although they be inconsistent. See: Philipps v Philipps (1878) 4 and 127 at 134.

However, where alternative claims are alleged, the facts relating to such claims ought not to be mixed up so as to show on what facts each alternative head of relief is claimed. See Davy v Garret (1877 – 1878) 7 Ch D. 473. In the same vein, a defendant may raise in his statement of defence as many distinct and separate, and therefore inconsistent defences as he may think proper. See: Berden v Greenwood (1877 – 80) 3 Ex D. 251 at 252; Coote v Ford (1899) 2 Ch. 93 etc.”
The reliefs sought by the Appellants in its Proposed 2nd Amended Statement of Claim at page 116, paragraph 25 (I – VII) are as follows;
I. A declaration that the Plaintiffs are entitled the statutory right of occupancy over the piece or parcel of land known and called “IRRI LOCATION “B” lying and situate in Ekpede bush, Irri in Isoko south Local Government Area of Delta State an area within the jurisdiction of this Honourable Court
II. A declaration that Plaintiffs and the 1st to 3rd Defendant who are members of Omorose family are joint owners of the land in dispute lying and situate at Ekpede bush.
III. The sum of N5,000,000.00 (Five

Million Naira) as damage for trespass committed by the 5th and 6th Defendants when sometimes in 1993 the 5th and 6th Defendants, their servants, agents, workmen and/or privies broke and entered into the piece of parcel of land and committed acts of trespass thereon by embarking on oil prospecting activities.
IV. An Order of this Honourable Court directing the 5th and 6th Defendants to recognizes and/or hold the Plaintiffs as joint owners/landlords of Irri Location B at Ekpede bush the land in dispute.
V. An Order of the Honourable Court restraining the 1st, 2nd and 3rd Defendants for themselves and on behalf of the Ukulohwo’s family of Irri and all persons claiming under and/or through them from parading themselves as owners or in anyway interfering with the Plaintiffs’ peaceful possession of the piece or parcel of land.
VI. An order of this Honourable Court directing the 1st, 2nd, 3rd and 4th Defendants to render account of all monies collected in respect of the said the plaintiffs from such collection from 1994 until judgment is given.
VII. Any other equitable reliefs as the Honourable Court may deem fit to make in the circumstances.

The reliefs as they appear are inconsistent, furthermore relief 1 is not an alternative to relief 2, they both can stand and are independent, separate and apart. The Apex Court in NEWSBREED ORGANISATION LTD v J. E ERHOMOSELE (2006) LPELR -1984 (SC) stated the mode a Court uses to determine whether a claim is in the alternative thus;
“…this is also settled, where a claim is in the alternative, the trial Court will first of all consider whether the principal or main claim ought to have succeeded. It is only after the Court may have found, that it could not, for any reason, grant the principal main claim, that it would only consider the alternative claim…”
per OGBUAGU, JSC (P. 51, PARAS. D – F).
Therefore, the argument of the Appellants in this regard is misconceived and the Appellant withdrawal of relief 1 in their written address before the lower Court is legal and proper in the circumstances, it is notice to all that they are dropping all claims to exclusive ownership to the land in question. Therefore, all arguments and evidence canvassed thereon automatically goes to no issue and would be

discountenanced by the lower Court, and cannot and will not affect relief 2 as it stands.
In OHOCHUKWU v AG RIVERS STATE & ORS (2012)LPELR-7849(SC) the Court held thus;
“A litigant who seeks to succeed in his action must state all his complaints and the remedy he is seeking in his statement of claim. What it means is that his cause of action and his grievances must be contained in statement of claim, with which he is bound, for any matter outside the periphery of the statement of claim i.e. pleadings vide evidence goes to no issue and are bound to be ignored. See Emegokwue v. Okadigbo 1973 4 SC 113; Shell B.P. v. Abedi 1974 1 SC 23, and Umoffia v. Ndem 1973 2 SC 69.”
per MUKHTAR, J.S.C (P. 35, paras. A-C)

Having withdrawn relief 1, it stands struck out and not in existence anymore and cannot be considered or referred to in any consideration herein. In the statement of claim, relief 2 becomes the new relief 1. The principal claim being withdrawn is a form of an amendment which can be done at any stage of the proceedings, it was not objected to by any of the parties. An amendment dates back to the beginning of the action when it was initially filed.

The learned trial judge held in reaction to the withdrawal when he at page 241, lines 13 – 17 thus;
“As rightly and forcefully contended by the Defence Counsel for the 1st – 4th Defendants, if relief sought to be withdrawn is withdrawn and granted, on what then are that reliefs standing or resting because reliefs II – VII contained in paragraph 25 of Claimants 2nd Amended Statement of Claim derives their life and blood from relief 1 of the paragraph 25 that is a declaratory relief.”

page 51 as follows: “I must at this stage and before considering the issues formulated for determination in this appeal, throw light into the tracts or attributes of a declaratory action generally speaking the purpose of a declaratory action sought from Court is essentially an equitable relief in which the plaintiffs pray the Court in exercise of its discretionary jurisdiction to pronounce or declare an existing state of affairs in law in his favour as may be discernible from the averments in the statement of claim. In order to be entitled to a declaration, a person must show the existence of a legal right, subsisting or in the future, and that the right is contested. In other words, what would entitle a plaintiff to a declaration is a claim which a Court is prepared to recognise and if validly made, it is prepared to give legal consequence to. A declaratory action is discretionary and it is exercised upon the trial of a suit.” See also OSUJI v. EKEOCHA (2009) ALL FWLR (PT. 490) 614.”
per AKEJU, J.C.A (Pp. 25-26, paras. G-E)

The reason for the dismissal of the action was; “From the inception of this matter in Court in 1994, the Appellants have

carried on Relief 1 as the main claim and others as ancillary reliefs. To withdraw it, every other relief is laid to waste as that was the source on which they all stood tall.’’

This reason falls short of an apt interpretation of the law having just dropped relief 1, it means that it is no longer a relevant relief and therefore once it is struck out the other reliefs will be analyzed vis-a-vis the evidence on ground and decided accordingly. A perusal of the judgement shows that there was no attempt made to even pronounce the striking out of the claim nor an evaluation of relief 2 which now stands as the principal relief and come to a pronunciation of a decision.

A notice was given in the address as to the new state of the pleading and upon which the case would be addressed upon and decided, therefore a proper interpretation is that, the Appellants have relinquished all claims to the exclusive ownership of the land and now claims joint ownership together with the Respondents herein.

In this regard, relief one stands struck out or abandoned. A plaintiff’s claim determines the cause of action and as it is, it is the joint

ownership of the land in relief 2 which is couched in a declaratory form:
“A declaration that Plaintiffs and the 1st to 3rd Defendant who are members of Omorose family are joint owners of the land in dispute lying and situate at Ekpede bush.’’

The above claim is for the Court to declare the existence of a legal right subsisting and future right or a contested one that would entitle the Appellants to a declaration, I am afraid the learned trial judge omitted to look at the pleadings and evidence adduced whether it sustained the remaining claims and missed the point in pages 239-240 of the record (judgment) and thereby occasioned a miscarriage of justice.
On this note, issue 1 is resolved in favour of the Appellants.

I shall deal with the second part of the issue, I have read the evidence adduced by the Appellant in the lower Court together with that of other parties and their respective pleadings, the Appellant had pleaded in paragraphs 8 -12 thereof; the customary title of the land and traced same to the Appellants and the 1st – 3rd Respondents and clearly pleaded joint usage of the land by both parties in contention

and traced the family history of the Appellant and the 1st – 4th respondents to be from Omorose family.

Seven witnesses testified in favour of the Appellants and the testimony of Pw1, 2 & 3 spoke on the original owner being Omorose, this has been pleaded by both parties and they identified the boundaries as by their respective families and how each farmed on the land seeing as the plaintiffs’ father had also farmed. Pw4 identified the 5 family gates of Omorose and that both the plaintiffs and 1st- 4th defendants flow from Omorose family, and spoke about compensation to the 1st Appellant and his wife Margaret, who said she farmed pepper on the land. Their evidence did not conflict and were in line with the Appellants pleading, in fact Pw4, Clark Olomu a well-educated man was emphatic in his testimony and testified to this effect at pages 187-188 of the record on the state of affairs before the advent of Irri location B and he had lived in Irri all his life, he knew both parties and was traced the genealogy of the Omorose family which captured by both disputing parties and was in line with paragraphs 8 and 9 of the claim. Pw5 also a wife of the 1st

Appellant had farmed on the land and was paid compensation; this was alluded to by Dw8 and Exhibit C1 – 6; List of people compensated on crops destroyed.

On the other hand, the evidence of the Defendants contradicted themselves and even the original founder pleaded by the defendant they did not stand the fire of cross examination, and did not know any fact about the history of the land. Dw7 spoke about a letter vesting title in the Defendant but did not tender same, Dw8 stated that meetings were held with the representatives of the family and that 1st plaintiff represented Enawo Family. They conceded that they (DW8 & DW9) knew nothing about the title of the land except that compensation was paid by the 4th Respondent on instruction of the 5th Respondent and he identified the process through which those entitled were to be paid.

I find the evidence of Dw10 interesting, he initially denied the founder as Omorose but under cross examination, he agreed that Omorose was the founder of the land in dispute and other lands, he then stated that the Omorose family which included the Appellants and the 1st–3rd defendants, “held meetings

together and buried their dead together.”
This to my deduction of the evidence on record is the true position.

Therefore, the Appellants’ witnesses were not shaken in cross-examination, the evidence clearly tilts the scale more in favour of joint ownership of the land between both contending parties.

In the light of the pleadings and evidence highlighted, the lower Court was wrong in dismissing the Appellants’ case.
I resolve issues 1 and 2 of the Appellants’ brief in favor of the Appellants.

On issue 2, the 4th Respondent connection to this case was expressly stated in the pleadings of the parties; pages 112, 114, 115, at paragraphs 3, 14, 15, 25 of the Plaintiff’s Proposed 2nd Amended Statement of Claim. For clarity purposes is reproduced verbatim;
“3. The 4th Defendant is a native of Ehwe in Isoko South Local Government unqualified, unregistered and a quack Estate Valuer parading himself as an Estate Valuer who carries on business of representing persons or communities in compensation matters with oil prospecting and/or related companies
14. Without the consent and authority of the

Plaintiffs the 5th Defendant was about paying compensation to the 1st and 2nd Defendants and the purported Ukulowho family but for the timely intervention of the Plaintiff’s family who lodged a protest with the 5th Defendant. After the protest of the Plaintiffs’ family, the compensation which was to be paid on the 1st and 2nd Defendants was by mutual agreement between the representatives of Defendants was by mutual agreement between the representatives of OMOSORE FAMILY and the UKULOWHO FAMILY paid to the 4th Defendant to Chief Ikibe of Ukulowho sub – family and J. M. AEkee the 1st Plaintiff for the sum of N 27, 201. 94.
15. When the 4th Defendant had received the money N27,201. 94 he started taking side with the Defendants to ensure that the disagreement persisted to enable him keep the money. The 4th Defendant has used the money execute contracts for which he has since received payments. The Plaintiffs meet with 4th Defendant several times who pleaded that he would soon surrender the money.
25. When all peaceful means to recover the money paid to the 4th Defendant had failed and the Defendants would not stop laying false claim

to the land in dispute as the Ukulowho’s exclusive property…”

The 1st – 4th Respondents also in its Further, Further Amended Statement of Defence, at pages 101, paragraphs 2:
“2. Paragraph’s 2, 4, 5, 9, 10 and 11 of the 1st amended statement of claim are admitted. Paragraph 3 of the statement of claim is admitted to the extent that the 4th Defendant is a native of Enwhen, a contractor and Estate Agent. The 4th defendant deny the averment that he is a self – styled estate valuer and shall put the plaintiffs to the strictest proof thereof.
9. Paragraph 14 of the 1st Amended statement of claim is admitted. In further answer to paragraph 14 of the 1st Amended Statement of claim, the 1st and 4th Defendants aver that after the agreement had been reached, the matter for determination of the rightful owner of the land in respect of which the compensation was to be paid and which is now in dispute, was referred to the Odionligbo of Irri in council at the odionlogbo Council, 1st Plaintiff presented plaintiffs case and made one Calabar Edho, the head of Etoka family witness. When Calabar Edho gave his evidence, he

stated unequivocally that the plaintiffs have no land in location “B” and that they, members of Etoka family shared common boundary with the 1st – 3rd defendants. The 1st – 3rd defendants also presented their case. The odionlogbo and the Edion Council returned a verdict that the 1st – 3rd defendants were owners of the land in dispute and were entitled to the compensation to be paid by the 5th Defendant
10. As a result of paragraph 9 above, the Odionlogbo wrote to the 5th defendant by the letter dated 19/11/94 and both the D. P. O oleh, 4th, 5th and 6th defendants were copied. It was based on this letter that the 4th defendant paid the sum of N27,201. 94 (Twenty-seven Thousand, Two hundred and One naira, ninety – four kobo) to the 1st – 3rd defendants’ Ukulowho family.”

The 5th Defendant in paragraph 6 of its Further Amended statement of Defence at page 88.
6. The Defendant denies paragraph 14 of the 1st Amended Statement of Claim and states that the claimants’ claim for ownership of the land in question was made after payment of compensation had been effected in favour of Ukulowho

family through their claims agent, Chief J. I Akpoveso and this was in accordance with standard practice adopted.

ALL STATES TRUST BANK LTD v KING DAVIDSON ENTERPRISES (NIG) LTD (2000)LPELR – 10631 (CA); DARAMOLA v NIGERIA POLICE (CID) IDIMU POLICE DIVISION & ORS (2016)LPELR – 41464 (CA).

for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
per BAIRAMIAN, J.S.C (Pp. 9-10, paras. F-D)
From the excerpts of the pleadings, it is easy to decipher that the 4th Respondent was just an agent to 1st – 3rd Respondent and held the money in lieu, which was given back to the 1st – 3rd Respondents after the disagreement between the parties was seemingly resolved and on the instruction of the Odionlogbo of Irri.
It is a trite principle of law, that where an agent acts for a disclosed principal, the contract is the contract of the principal and not that of the agent, the legal effect flowing from the above is that the principal is liable for any act of the agent done in the course of the agent’s employment.
In ENL CONSORTIUM v DONASULU BROTHERS (NIG) LTD (2015) LPELR – 24680 (CA), this honourable Court held on the effect of an agent acting with the scope of his authority for a disclosed principal;
“At this juncture, it is pertinent to examine the doctrine of disclosed principal and privity of contract. A disclosed principal is the type of principal

whose identity is revealed. The doctrine of disclosed principal is to the effect that a principal, whether disclosed or otherwise is in position to plead all defences available to him, but in the case of fraud, where the Agent acts within the scope of his authority or apparent, the act of fraud on the part of the agent binds the principal. See GEORGE C. ASHIBUOGWU v A.G BENDEL STATE & ANOR. (1988) LPELR – SC 25/86. Obligations of the agent vary according to the particular agreement with the principal, who is generally required to act by specific instructions and is held responsible for wrongful acts of the agent only when they fall within the scope of the legal contract. The agent, besides being paid for services, is entitled to reimbursement for particular expenses. The law is settled that an agent that acts on behalf of disclosed principal cannot incur any personality liability…”
per OBASEKI – ADEJUMO, JCA (PP. 29 – 30. PARA. A)
See also; OSIGWE v PSPLS MANAGEMENT CONSORTIUM LTD (2009) 16 WRN 1; OKAFOR v EZENWA (2002) 13 NWLR (PT. 784) 319; CARLEN (NIG) LTD. v UNIVERSITY OF JOS & ANOR (1994) 1 NWLR (PT. 323)

631; MAITURARE v SA’ADU (2018) LPELR – 46510 (CA); MUSA & ANOR v IBRAHIM (2017) LPELR – 43101 (CA); OKAFOR v EZENWA (2002) LPELR – 2417 (SC).
The above authorities applies to the 6th Respondent also, who worked for the 5th Respondent as its agent and carried out drilling activities on the land in dispute on behalf of the 5th Respondent.
At all material time in this appeal, the 6th Respondent has remained an agent working and carrying out the instructions of the 5th Respondent.
Therefore, the 4th and 6th Respondents having disclosed their principals, who has also been sued as 5th defendant and the 1st – 3rd Respondents. A cause of action has not been disclosed against them and therefore are not proper parties to the suit, they have being wrongly joined and this Court has no jurisdiction to determine this appeal as so constituted, hence, the names of the 4th and 6th Respondents are hereby struck out.

Having found in the judgment that the lower Court was wrong to have dismissed the case without affording the Appellants an opportunity to ventilate its case, the materials are before this Court and based on the age

of the case from 1994, the case has a chequered history and would be a case of adding salt to the injury suffered to further return the file to the high Court for retrial.
I therefore in view of circumstances enumerated above invoke the powers vested in Section 15 of the Court of Appeal Act, 2016 and determine the merits of the action forthwith.
In OKEKE v NNAMDI AZIKIWE UNIVERSITY TEACHING HOSPITAL (2018) LPELR – 43781(CA) this Court held;
“The Supreme Court in Njideka Ezeigwe v. Chief Benson Chuks Nwawulu & Ors (2010) LPELR-1201(SC) was emphatic on the Interpretation of Section 15 of the Court of Appeal Act, 2004 as to the conditions that must exist before the Court can invoke and exercise its powers in that Section. The Court per Onnoghen JSC held as follows: “Section 15 of the Court of Appeal Act, 2004 provides as follows:- “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal

thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and, generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be reheard by a Court of competent jurisdiction.” In interpreting the above provision, this Court has, in the case of Obi vs INEC (2007) 1 NWLR (Pt. 1046) 465; Amaechi vs INEC (2008) 5 NWLR (Pt. 1080) 227; Inakoju vs Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489 stated that for the provision to apply the following conditions must exist, to wit: (a) that the

lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it”, (b) that the real issue raised by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (c) that all necessary materials must be available to the Court for consideration (d) that the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and, (e) that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.”
per OGUNWUMIJU, J.C.A (PP. 31-33, PARAS. E-F)
Also, the Apex Court in OBI v INEC & ORS (2007) LPELR-2166(SC) had reiterated conditions under which the provision can be invoked:
“…I consider it necessary to reproduce the provisions of Section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria which reads thus: “The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may direct the Court

below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.” Broadly speaking, the provisions of Section 16 of the Court of Appeal Act confer legal power on the Court of Appeal to make any order which the Court below could have made in the interest of justice. This presupposes that the Court below, the Court of Appeal, must have got

jurisdiction to entertain the suit and the Court below it also had jurisdiction in the matter it failed to exercise it. The provisions do not confer on the Court of Appeal the power to make an order which the trial Court could not have made in resolving the dispute between the parties in the suit before it. The purpose of Section 16 aforesaid, is in my view, to obviate delayed justice. It follows from what I have been saying above, that certain conditionality must be present before the provisions of this section can be invoked; and they are:- “(1) the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it; (2) the real issue raised up by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; (3) all necessary materials must be available to the Court for consideration; (4) the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (5) the injustice or hardship that will follow is the case is remitted to the Court below, must

clearly manifest itself.” See Faleye & Ors. v. Otapo & Ors. (1995) 3 NWLR (Pt. 381) 1; Inakoju v. Adeleke (2007) 1 S.C. (Pt. I) 1; (2007) 4 NWLR (Pt. 1025) 423 and Dapianlong & Ors. v. Dariye (2007) 4 S.C. (Pt. III) 118; (2007) 8 NWLR (Pt. 1036) 23 9. I have taken a critical examination of the contents of the Originating Summons used in initiating the case; everything needed to enable the Court below (Court of Appeal) to invoke the provisions of the aforesaid Section 16 and to proceed to determine the main issue in the case was present. The Court below erroneously failed to take the advantage of the aforesaid provisions of the Court of Appeal Act. Would this then be the end of the road for a citizen who has approached the citadel of justice seeking remedies for wrong done to him I think not. The law, must not and cannot be wanting in dispensing justice. And since justice according to law is the pre-occupation of a judex, a Court must always rise up to such an occasion. It is to meet this exigency that Section 22 of the Supreme Court Act, Cap 424, Laws of the Federation of Nigeria, 1999, was enacted to confer general powers on this Court to do all

such things that will bring about unalloyed justice. I pause to say that the conditionalities which I have stated above that must be in place for the invocation of the provisions of Section 16 of the Court of Appeal Act aforesaid are also the condition precedent for the invocation of the provisions of Section 22 of the Supreme Court Act which provisions are as follows… The provisions of Section 22 of the Supreme Court Act quoted above are, in pari materia, with the provisions of Section 16 of the Court of Appeal Act.”
per ADEREMI, J.S.C (PP. 47-50, PARAS. A-F)
Flowing from above, this appeal qualifies for an application of Section 15 of the Court of Appeal Act, 2016.

I find that the Appellants have proved that the plaintiffs together with the 1st -3rd Defendants are members of Omorose family and are joint owners of the land in dispute lying and situate at EKPEDE BUSH.

Relief 3 of the claim of the Appellant in the lower Court is hereby struck out, the Appellant having withdrawn relief 3 in its brief and this Court hereby on the strength of relief VI, and in the interest of the justice and equity of this case, vary Reliefs IV and V of

the reliefs, the 4th and 6th Respondents have been struck out thus;
1. An Order of this Honourable Court directing the 5th Defendant to recognize and/or hold the Plaintiffs as joint owners/landlords of Irri Location B at Ekpede bush the land in dispute.
2. An Order of the Honourable Court restraining the 1st, 2nd and 3rd Defendants for themselves and on behalf of the Ukulohwo’s family of Irri and all persons claiming under and/or through them from parading themselves as exclusive owners or in anyway solely interfering with the Plaintiffs’ peaceful possession of the piece or parcel of land.
3. An order of this Honourable Court directing the 1st, 2nd, 3rd and 5th Defendants to render account of all monies collected in respect of the said the plaintiffs from such collection from 1994 until judgment is given.

On the whole, I resolve 1 and 2 in favour of the Appellants and strike out the name of 4th and 6th Respondents accordingly.

The appeal has merits and succeeds in its entirety and is hereby allowed.

The decision of Hon. Justice M. Umukoro, the Chief judge of Delta State delivered on January 11th, 2017 is hereby set aside

Cost of N300,000 is awarded against the 1st – 3rd and the 5th Respondents.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the judgment just delivered by my learned brother OBASEKI-ADEJUMO JCA. I agree with the reasoning and final conclusions contained in the lead judgment. I have nothing useful to add.

I allow the appeal and set aside the judgment of the trial Court. I also align myself with all the orders contained in the lead judgment and adopt them as mine including that as to costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be allowed.

Appearances:

…For Appellant(s)

…For Respondent(s