LUCIANO O. ODETOLA v. ALH. ALIMI TOGUNDE
(2019)LCN/13236(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/IB/100/2016
RATIO
APPELLANTS:WHETHER THEY CAN CHALLENGE THE REPRESENTATIVE CAPACITY OF A PARTY
Appellants are defendants in the suit and not members of the Togunde family. They have no right to challenge the claimant whom the Togunde family held out to represent them. In Durbar Hotel Plc v. ityough (2011) 9 NWLR (pt. 1521) at page 41 and also inShell Petroleum Development Company Nig. Ltd v. Edamkue (2009) 14 NWLR (pt. 1160) at 1, the well-known principle on the proper person to challenge representative action was restated thus:
It is only a member of a group, family or community who can dispute, intervene or challenge the proper representation or the capacity in which a plaintiff or plaintiffs sue. It will be futile for a defendant who is not one of those the plaintiff/plaintiffs purport to represent to challenge the plaintiffs said authority, for or because if the plaintiffs win, the losing party cannot share in the victory and if the plaintiffs case be dismissed, such dismissal can never affect the defendant adversely. See Durbar Hotel Plc v. Ityough (2011) 9 NWLR (pt. 1521) at page 41. See also Shell Petroleum Development Company Nig. Ltd v. Edamkue (2009) 14 NWLR (pt. 1160) at 1.
It is therefore wrong for the appellant to purport to challenge the representative capacity of the respondent on the competence of the action in such capacity.PER NONYEREM OKORONKWO, J.C.A.
LAND LAW: BURDEN OF PROOF WHEN IT IS ADMITTED THAT LAND BELONGS TO A PARTICULAR FAMILY
The law on this issue is that once it is admitted that a particular piece of land belongs to a family, the law places a heavy burden of proof on any person or group who asserts exclusivity of ownership or possession against the family or any person claiming through them ? Moriyamo Adesanya v. A.O. Otuewu & Ors (1993) 1 SCNJ 77 and mere evidence of occupation or user is not conclusive proof against the family whose title to the land has been established. So, the onus is on the party who is claiming absolute title to land accepted as family land to prove such exclusive entitlement. SeeS.O. Bamgbose v. Oshoko & Anor(1988) 5 SC 178 Nwavu & 11 Ors v. Okoye & 19 Ors (2008) 7-12 SC 63; Chief Laito Ajagbe v. Oyegade Akanni (1973) 11 SC 35.
Where the challenger is unable to displace the ownership by the family by proving derivative title in himself (the challenger) his possession of the land is deemed to be trespassory.PER NONYEREM OKORONKWO, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
LUCIANO O. ODETOLA Appellant(s)
AND
ALH. ALIMI TOGUNDE Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Oyo State High Court delivered on December 3, 2013 whereby the claims of the respondent against the appellant in trespass and injunction were granted.
The appellant being dissatisfied lodged this appeal by notice of appeal filed 21 December 2015.
Facts of Case
The claimants who are the respondents in this appeal by their further amended statement of claim sued the defendant herein appellant as follows:
1. N50,000:00 damages for trespass committed by the defendant, his servants, agents and/or privies or otherwise howsoever by the wrongful entry, occupation and user of two blocks of classrooms and out houses on a portion of the claimant?s land at Oke-Koto, Sawmill Area, Old Ife Road, Ibadan.
2. Damages for wrongful occupation and continuous use of two blocks of classrooms and out houses on the Claimant?s said land at the rate of N200,000:00 per annum since October 1994 until possession thereof be delivered up.
3. Injunction restraining the defendants, his servants, agents and/or privies or otherwise
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howsoever from continuing with his wrongful occupation and use of the two blocks of classrooms and out houses on the claimant?s said land at Oke-Koto, Sawmill Area, Old Ife Road, Ibadan.
The defendant/appellant in a counter claim subjoined in their amended statement of defence counter claimed as follows:
1. An Order that the Claimant having received a sum of one hundred thousand Naira (N100,000:00) through a receipt dated 5th May, 2001 and leading Defendant into lawful possession is estopped from denying the title of the Defendant under Native Law and Custom and agreed instalment payment schedules.
2. An Order of part performance on the claimant to perform its part of the transaction.
The respondent, suing as representing the Togunde family, in the pleading and in evidence averred that the land in dispute, being part of an area of 7.504 hectares situate at Oke-Koto, Old Ife Road Ibadan belonged to the Togunde family having been first founded by their great-grand-father Fabunmi Togunde who settled thereon and executed various acts of ownership and to whose interest the Togunde family succeeded.
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Between 1960 and 1967, a descendant of the Togunde family, Benjamin Apata with the leave of the Togunde family established a secondary modern school on the land in dispute and operated the school until the outbreak of the civil war in 1967 when the Nigerian Army occupied that portion as a Military base. The portion is covered by Survey layout plan No. 37/EG/L.416.
At the end of the civil war, the Nigerian Army sometime after, vacated the land and yielded possession of same to the Oyo State Government who seized the land. The respondent had to institute a civil action against the Oyo State Government for declaration of title and trespass in respect of the land. In the suit No. I/1143/94, the High Court in its judgment of 29th March 1999 declared the respondents Togunde family as entitled to the title they sought and adjudged the Oyo State Government liable in trespass. Another judgment where the title of the Togunde family was vindicated was in suit No. I/739/99. Togunde and Akinloye decided on 12th May 2004. In their pleadings, the respondent allege the entry of the appellant onto their land and the occupation thereof was without their consent, unlawful and trespassory.
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The appellants by paragraph 5 of their amended statement of defence admitted the radical title of the respondent but state that such title was disrupted by the occupation of the land by the Nigerian Army during the civil war and that the land, as result reverted to the Government of Oyo State by virtue of the LAND USE ACT 1978. The appellant allege that they came onto the land and established the Better Life School in 1994 by virtue of a licence or grant of the Oyo State Government but that when they (appellants) became aware of the title of the respondent which was established in Suit No. I/143/94. They approached the respondent and negotiated to buy the portion occupied by the school for the sum of Nine Hundred Thousand Naira (N900,000:00) out of which they paid an instalment of N100,000:00 (One Hundred Thousand Naira). This was despite the pleading of the appellant that by virtue of the Land Use Act 1978, the land is in custody of the State Government and the buildings thereon which belong to the state government which leased it to the appellant.
Upon a consideration of the respective cases of the parties, the trial Judge in his judgment held that the claimant (i.e. the respondent) has shown his family?s title to the land in question? and adjudged the respondent liable in trespass to the appellant.
Concerning the appellants counter claim, the trial Court held that it was not made out as Exhibit G which the appellant relied on to establish a grant from the respondent could not be relied on as evidence of payment and did not specify which piece of land it related to.
Appellant, dissatisfied with this decision filed this appeal against the judgment vide the Notice of Appeal on 21 December 2015 upon the following grounds of appeal.
Ground 1
The learned trial Judge erred in law when he held that the writ clearly show that the suit was instituted in a representative capacity whereas the authority of the respondent to sue in a representative capacity was challenged by the appellant.
Ground 2
The learned trial Judge erred in law and therefore came to a wrong decision when he held that since the wife of the appellant died in 1996 there is no way she could have negotiated for the sale of the land in 2002.
Ground 3
The learned trial Judge erred in law and came a
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wrong decision when he held that the appellant was a Trespasser because he is unable to show when he got to the land.
As if, corresponding to the grounds of appeal, the appellants formulated four (4) issues as follows:
Issue One
Whether or not the learned trial Judge was right when he held that the writ clearly showed the capacity of the respondent to sue in a representative capacity when that capacity was challenged by the appellant both in the pleadings and evidence in Court.
Issue Two
Whether or not the learned trial Judge was right when he held that since the wife of the appellant died in 1996 there is no way she could have negotiated for the sale of the land in 2002 when no issue was joined in the pleadings and evidence in the Court to that effect.
Issue Three
Whether or not the learned trial Judge was right when he held that the appellant is a trespasser because he is unable to show then he entered into the land when there are copious pleaded evidence that the appellant built a Nursery and primary School on the land in 1994 to the knowledge of respondent and his family.
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Issue Four
Whether or not the learned trial Judge was right when he held that Exhibit G tendered and admitted without any objection is not related to the land in dispute when there is evidence that Exhibit G was tendered as evidence of payment of the first instalment of N100,000:00 for the purchase of the land on which the appellant wife built the Better Life Nursery and primary School.
For the respondent, one composite issue was formulated at paragraph 2.01 of the respondents brief as follows:
The crucial issue for determination in this appeal is whether on the available materials and the state of the law, the trial Court was right in granting the respondent?s claims in its entirety.
In addition, the respondent by way of preliminary objection contend that grounds 1, 2 and 4 of the notice of appeal are incompetent in that they do not emanate from the decision appeal against.
In order not to miss out on any complaint of the appellant, I shall attend to the four issues of the appellant as they appear but first the preliminary objection has to be considered. The appellant has in the preliminary objection argued thus:
The law is that a ground of appeal against a
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decision must relate to the decision being appealed against and the ground must constitute a challenge to the decision. Where a ground of appeal fails to find its roots in the decision appealed against, such ground of appeal is certainly a ground crafted in the abstract and this Honourable Court will certainly throw such incompetent ground away.
See Ministry of Defence & Ors v. Wing Commander P.E. Iyen (Rtd) (2014) 10 NWLR (pt. 1416) 636 at 647, D.
This would necessitate an examination of the issues relative to the grounds of appeal.
Issue number one relates clearly to Ground One. Issue Number two clearly relates to Ground two. Issue number three clearly relates to Ground three. Issue four is clearly synonymous with Ground four. These comparisons can be made and verified from facts given above. The preliminary objection of the respondent is therefore without merit and discountenanced.
Now, to consider the issues of the appellant.
Issue One
Whether or not the learned trial Judge was right when he held that the writ clearly showed the capacity of the respondent to sue in a representative capacity when that capacity was
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challenged by the appellant both in the pleadings and evidence in Court.
Appellants are defendants in the suit and not members of the Togunde family. They have no right to challenge the claimant whom the Togunde family held out to represent them. In Durbar Hotel Plc v. ityough (2011) 9 NWLR (pt. 1521) at page 41 and also inShell Petroleum Development Company Nig. Ltd v. Edamkue (2009) 14 NWLR (pt. 1160) at 1, the well-known principle on the proper person to challenge representative action was restated thus:
It is only a member of a group, family or community who can dispute, intervene or challenge the proper representation or the capacity in which a plaintiff or plaintiffs sue. It will be futile for a defendant who is not one of those the plaintiff/plaintiffs purport to represent to challenge the plaintiffs? said authority, for or because if the plaintiffs win, the losing party cannot share in the victory and if the plaintiffs? case be dismissed, such dismissal can never affect the defendant adversely. See Durbar Hotel Plc v. Ityough (2011) 9 NWLR (pt. 1521) at page 41. See also Shell Petroleum Development Company Nig. Ltd v. Edamkue (2009) 14 NWLR (pt. 1160) at 1.
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It is therefore wrong for the appellant to purport to challenge the representative capacity of the respondent on the competence of the action in such capacity. The issue number one fails.
Issue Two
Whether or not the learned trial Judge was right when he held that since the wife of the appellant died in 19
