ELD. BARR. AGAN A. ANNAH & ORS v. MR. ISHIE O. USO & ORS
(2010)LCN/3859(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of June, 2010
CA/C/89/2008
RATIO
ACTION: WHETHER A PERSON CAN BE ADVERSELY AFFECTED BY A JUDGMENT HE IS NOT A PARTY TO
Thus in CLAY INDUSTRIES LTD v. AINA (1997) 7 SCNJ 491; 509 the Supreme Court held that the law is settled as a matter of general rule that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice in deciding an issue against him in his absence unless he is a privy to a party in which case he is equally bound as the parties…, or he has so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct. In UWAKALA v. AGBA 15 WACA 63; 65 it was held that “it has been repeatedly held by this court and the courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result and should not be allowed to reopen the case. Thus Lord Penzance in WYTCHERLEY v. ANDREWS 25 LTR 134 at 135 stated as follows:-
“that principle is founded on justice and common sense, and is in numerous cases acted upon in the court of chancery, where, if the persons interested are too numerous all to be made parties, one or two of a class are allowed to represent their fellows”.
Also in IBENEWEKA VS. EGBUNA (1964) 1 W.L.R. 219 the Privy Council held that there had never been any unqualified rule of practice that for-bade the making of a declaration even when some of the persons interested in the subject of the declaration were not before the court. The said case was cited with approval by full panel of the Supreme Court in AYENI VS. SOWEMIMO (1982) 5 SC 29. PER JAFARU MIKA’ILU, J.C.A.
WORDS AND PHRASES: MEANING OF PARTIES
in NDULUE VS. ONYEKWULUNNE 2002 FWLR (pt 110) 1951; 1964 the Supreme Court held as follows:-
“the term “parties” has been defined to include not only those named in the record of the proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and join as a party in the suit but choose not to do so, but were contented to stand-by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to, or interest in, the subject matter of the action. Also in MAYA VS. OSHUNTOKUN (2001) FWLR (pt 81) 1777; 1800 this court held the term parties includes privies to the parties named on the writ. That a privy is a person whose title is derived from and who claims though a party. PER JAFARU MIKA’ILU, J.C.A.
JUSTICES
KUMAI B. AKAAHS Justice of The Court of Appeal of Nigeria
JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria
N. S. NGWUTA Justice of The Court of Appeal of Nigeria
Between
ELD. BARR. AGAN A. ANNAH & ORS Appellant(s)
AND
MR. ISHIE O. USO & ORS Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Cross River State, Calabar Judicial Division contained in the judgment of Wednesday, the 10th day of January, 2007 in suit NO: HC/165/2004. By a writ of summons dated and filed contemporaneously with the statement of claim on the 4th May, 2004, the 1st and 2nd respondents herein, as plaintiffs, sued the 3rd respondent herein, as defendant, at the trial court. The claims of the 1st and 2nd respondents as endorsed in the amended writ of summons and paragraph 15 of the amended statement of claim are as follows:-
(a) A DECLARATION that the 1st plaintiff as the senior surviving male member of Chief Offiong Okoho Uso’s family remain (sic) the undisputed Head of the said family in whom TITLE to Chief Offiong Okoho Uso’s family land now inheres for the use, benefit and enjoyment of himself, as well as other surviving children of late Chief Offiong Okoho Uso as principal members of the family.
(b) A DECLARATION that the plaintiffs as children of late Chief Offiong Okoho Uso are his customary successors under Efik native law and customs and are entitled to the use, benefit and enjoyment of the said Chief Offiong Okoho Uso’s family land and are therefore entitled to the
STATUTORY RIGHTS OF OCCUPANCY in respect of the same.
(c) A DECLARATION that the 1st Defendant as the 8th Grandson and 11th grandchild of plaintiffs’ late father has neither TITLE, POWER NOR RIGHT to sell, convey, lease alienate or otherwise dispose of the plaintiffs’ family land to any person under any guise whatsoever.
(d) A DECLARATION that the 2nd defendant as a cousin to the plaintiffs has neither TITLE, RIGHT or any recognizable interest in, nor is he entitled to quarrel STATUTORY RIGHT OF OCCUPANCY in or over CHIEF OFFIONG OKOHO USO Family Land.
(e) AN ORDER OF COURT setting aside all instruments executed by the Defendants jointly and severally whether by way of DEED or otherwise purporting to sell, lease, grant, convey or otherwise alienate nay portion of the plaintiffs’ said family land.
(f) N10,000,000.00 (Ten Million Naira) being SPECIAL AND GENERAL DAMAGES for Trespass.
(g) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants either by themselves, agents, privies, servants or hirelings from alienating or otherwise disposing of the plaintiffs said family land and from indulging in further acts of trespass such as removing and destroying Beacon stones, survey and Boundary Marks or from doing any further acts or thing, whatsoever in or upon the rights and interests of the plaintiffs (see pages 64-65 and 68-69 of the record)
The 4th respondent who was subsequently joined in the case on his application counter-claimed for as follows:-
(i) A DECLARATION that the plaintiffs and the 1st Defendant unlawfully an improperly used their position as members of the late CHIEF OFFIONG OKOHO USO family and OBONG USO ISHIE family to appropriate to themselves and plunder the large expense of the land called USUNG IDUNDU same being the beneficial property of the parties here to including the 2nd Defendant.
(ii) A DECLARATION that the entire expansive parcel of land situate and being at USUNG IDUNDU in Ikot Ishie Calabar and measuring approximately 48.161 Hectares and more particularly described, and delineated in a survey Plan NO: JEJ/CR/355 dated 1986 and drawn licensed Surveyor J. J Asuquo is the customary, traditional and lawful and bonafide property of late OBONG USO ISHIE, the grandfather of all parties herein.
(iii) An order setting aside any survey plan, documents or CERTIFICATE OF OCCUPANCY purporting to grant or convey the ownership of the entire expensive parcel of land situate at ‘USUNG IDUNDU/Obot Enechi,” Ikot Ishie the subject matter of this suit on late Chief OFFIONG OKOHO USO or any other person or persons claiming therefrom.
(iv) A DECLARATION that any purported sale, demise, conveyance, alienation and leasing of various and several plots of the expensive landed property of OBONG USO ISHIE (being the beneficial property of the entire OBONG USO ISHIE, Family) by the plaintiffs and the 1st Defendant to strangers and other people, is null, void, illegal, and of no effect as the said property is a joint family property belonging to all the customary beneficiaries of the Estate of late OBONG USO ISHIE, grandfather of all the parties in the present suit NO: HC/165/2004.
(v) AN ORDER OF PERPETUAL INJUNCTION restraining the plaintiffs and the 1st Defendant whether by themselves, Agents, servants, Privies and hiring from further treating and dealing with the expansive parcel of land situate and being at “USUNG UDUNDU” in Ikot Ishie Calabar as property of late Chief OFFIONG OKOHO USO.
(vi) N10,000,000.00 (Ten Million Naira) only as damages for unlawfully depriving breaching and violating 2nd Defendant’s right of inheritance from the estate of his grand father late OBONG USO ISHIE (see pages 78-79 of the record)
Before the trial Court pleadings were filed and exchanged on the 20th day of October, 2005 the 4th respondent applied to be joined as a defendant in the suit. The application was granted on Tuesday the 20th day of October, 2004. Pleadings were amended accordingly and the trial of the matter was conducted.
It was after the matter was adjourned for the adoption of written addresses that the Kasuk Qua Clan filed a motion on 27/11/2008 to join in the suit on 27/11/2006. The trial Judge ruled on the motion on 10th day of January, 2007 and refused the application of the Kasuk Qua Clan.
At the end of the trial the trial Judge delivered his judgment on 24th January, 2007 dismissing the claims of the 1st and 2nd respondents on the ground that the evidence before him did not support the claims of the plaintiffs. The trial Judge refused to award damages for trespass against the 1st, 2nd and 3rd respondents because he recognized the fact that “the plaintiffs and the 1st defendant also have a right to be on the land. That they can not trespass on their own property. His Lordship however made some orders/declarations against the 1st, 2nd and 3rd respondents against the 4th respondent. That the 4th respondent armed with the Judgment of the trial Court, got a bulldozer, Policemen and enabled bodied men to demolish the house of all persons found on the land who were not put there by him, under the guise of enforcing the judgment.
On the 19th day of April, 2007, the appellants whose houses were among those earmarked by the 4th respondent for demolition applied to the trial Court under section 243(a) of the constitution of the Federal Republic of Nigeria, 1999 for Leave to appeal against the judgment in suit No:HC/165/2004 as interested parties. The trial Judge refused the application on Wednesday, 19th day of May 2007 whereupon the appellants came to this Court with a fresh application leave on 4/10/2007.
The appellants filed their notice of appeal at the trial court on 8/10/2007.
From the two grounds of appeal contained in the notice of appeal, the appellant has framed only one ground of appeal. It reads as follows:
Whether the decision of the learned trial Judge setting aside all sales, leases conveyances, assignments or any alienation however made on the respondents’ family land lying and situate at Chief Offiong Okoho Uso Layout, Calabar and declaring all such transactions null and void, without giving the effected parties thereby, particularly the appellant herein, whose proprietary interest have been affected by the judgment, the opportunity to be heard did not breach the appellants’ rights to fair hearing and thus occasioned a miscarriage of justice?
The respondents in their brief of argument have adopted the above issue when he held that the 1st to 3rd respondents were entitled to be on the family land in dispute as members of Obong Udo Ishie family but that their alienations of the family land as personal properties were never the less a nullity.
It is to be noted that the appellants are not contesting the finding of the trial court that the land in dispute is Obong Uso Ishie family land and that all the respondents were members of that family. The appellants do not also dispute the finding of the trial court that the 1st to 3rd respondents sold portions of the family land as if it was a personal property or the sole property of Chief Offiong Okoho Uso branch of the family. In the circumstance the appellants cannot be heard to say that the trial court was in error to set aside the 1st – 3rd respondents’ conveyances of Obong Uso Ishie family land at the instance of the 4th respondent who is a member of Obong Uso Ishie family.
In this appeal the appellants have raised a point of procedural law by contending that the trial court had no jurisdiction to set aside those deeds when all those who were parties to those agreements were not named and joined as parties to this suit. The appellants contend that it is trite law that a court has no jurisdiction to make an order affecting the interest of persons who are not joined as parties to the suit. But it is subject to some exceptions. Thus in CLAY INDUSTRIES LTD v. AINA (1997) 7 SCNJ 491; 509 the Supreme Court held that the law is settled as a matter of general rule that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice in deciding an issue against him in his absence unless he is a privy to a party in which case he is equally bound as the parties…, or he has so acted as to preclude himself from challenging the judgment in which case he is estopped by his conduct. In UWAKALA v. AGBA 15 WACA 63; 65 it was held that “it has been repeatedly held by this court and the courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result and should not be allowed to reopen the case. Thus Lord Penzance in WYTCHERLEY v. ANDREWS 25 LTR 134 at 135 stated as follows:-
“that principle is founded on justice and common sense, and is in numerous cases acted upon in the court of chancery, where, if the persons interested are too numerous all to be made parties, one or two of a class are allowed to represent their fellows”.
Also in IBENEWEKA VS. EGBUNA (1964) 1 W.L.R. 219 the Privy Council held that there had never been any unqualified rule of practice that for-bade the making of a declaration even when some of the persons interested in the subject of the declaration were not before the court. The said case was cited with approval by full panel of the Supreme Court in AYENI VS. SOWEMIMO (1982) 5 SC 29.
In this case the appellants (and other like them) to whom portions of the family land were conveyed are privies of the 1st to 3rd respondents who conveyed the land to them, and as such their interest in this matter was ably represented by their vendors. They knew that if their vendors had no title to the land in dispute, they the vendors, would have bought nothing because nemo quod non habet.
If the appellants had a case different from that of their vendors to present to save their deeds from nullification they should have applied to be joined as parties to the case. Since they did not do so and instead chose to ride on the success or failure of their vendors they are caught by the sound age old principle of estoppel by standing-by. They can not now be heard to disassociate their fate from that of their vendors by contending that their deeds of conveyance were wrongly set aside even though they do not have a root of title different from their vendors.
In law the appellants were parties to this suit even though their names were not on record. Thus in NDULUE VS. ONYEKWULUNNE 2002 FWLR (pt 110) 1951; 1964 the Supreme Court held as follows:-
“the term “parties” has been defined to include not only those named in the record of the proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and join as a party in the suit but choose not to do so, but were contented to stand-by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to, or interest in, the subject matter of the action. Also in MAYA VS. OSHUNTOKUN (2001) FWLR (pt 81) 1777; 1800 this court held the term parties includes privies to the parties named on the writ. That a privy is a person whose title is derived from and who claims though a party.
In this case therefore the appellants can not be said to have been affected by an order made in a case in which they were not parties. As privies of their named vendors the appellants were parties to this case. As people who stood by and watched their vendors defend their interest in the case the appellants were also parties to this suit. They were therefore adequately and fairly heard in this matter through their vendors before the court nullified their purchases of OBONG Uso Ishie Family Land”.
It is hereby reiterated that the appellants were in law parties to this suit and as such the order made by the trial court against their interest cannot be faulted. The appeal is therefore lacking in merit and it is accordingly dismissed.
Parties to bear their costs.
K. B. AKAAHS, J.C.A.: I read in draft the judgment of my learned brother, Mikailu, J.C.A. I agree that the appellants had direct interest in Suit No. HC/165/2004 since they were privies to the vendors. If the vendors had no title to pass in the property sold to the appellants, the maxim of nemo dat quod nan habet and caveat emptor will apply to the transaction. For this and the more detailed reasons contained in the lead judgment, I find that the appeal has no merit and it is hereby dismissed.
NWALI SYLVESTER NGWUTA, J.C.A.: I read in draft the lead judgment of my learned brother Mikailu, JCA. I agree that the appeal is devoid of merit. I also dismiss same and order that parties bear their costs.
Appearances
Mba E. Ukweni Esq.For Appellant
AND
Essien H. Andrew Esq.For Respondent
