ALIMI ADELEKE V. AKINYELE LOCAL GOVERNMENT
(2011)LCN/4588(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of May, 2011
CA/I/30/2004
RATIO
REPRESENTATIVE CAPACITY: WHETHER A PARTY WHO INSTITUTES AN ACTION IN A REPRESENTATIVE CAPACITY MUST ENDORSE THE WRIT OF SUMMONS WITH A STATEMENT SHOWING THAT HE IS SUING IN SUCH CAPACITY
Where a party institutes an action in a representative capacity, he is expected to endorse the writ of summons with a statement showing that he is suing in such capacity. The essence of the rule requiring endorsement of representative capacity of parties on court process is to put all parties and the court on notice of the capacity of each part to the suit, so that they are aware of the claim vis-a-vis the stance of the parties. See the case of KARA VS. WASSAH (2001) 18 N.W.L.R Part 744 page117 at 122. PER MODUPE FASANMI, J.C.A.
REPRESENTATIVE CAPACITY: WHETHER AN ACTION NOT PROPERLY INSTITUTED IN A REPRESENTATIVE CAPACITY WOULD BE TREATED AS A PERSONAL ACTION
It is the law that where an action in a representative capacity is not properly instituted, it would be treated as a personal action. See IFEKWE V. MODU (2000) 14 N.N.L.R. Part 688 page 459 at 466. PER MODUPE FASANMI, J.C.A.
PROOF OF TITLE TO LAND: DUTY PLACED ON A PLAINTIFF SEEKING A DECLARATION OF ENTITLEMENT TO LAND
It is the law that a Plaintiff who claims a declaration of entitlement to land has the abounding duty to prove his title by credible evidence notwithstanding any weakness in the case of the defence unless the case of the defendant actually supports the Plaintiff’s claim. See BELLO V. EWEKA (1981) 1 SC page 101, AKINDURO V. ALAYA (2007) 15 N.W.L.R. Part 1057 at 312, ODUNZE V. NWOSU (2007) 13 N.W.L.R. Part 1050 at page 1 and OGUNJEMILA V. AJIBADE (2010) 11 N.W.L.R Part 1206 page 559 at 581 paras C-D. PER MODUPE FASANMI, J.C.A.
DUTY OF COURT: WHETHER COURTS ARE BOUND TO ACT ON LEGALLY ADMISSIBLE AND ADMITTED EVIDENCE BASED ON PLEADED FACTS
The courts are bound to act on legally admissible and admitted evidence based on pleaded facts. see OBULAR V. OBARO (2000) F.W.L.R. Part 47 page 1004. PER MODUPE FASANMI, J.C.A.
JUSTICES:
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
ALIMI ADELEKE – Appellant(s)
AND
AKINYELE LOCAL GOVERNMENT – Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of an Oyo State High Court of Justice sitting at Ibadan delivered on the 15th of May, 2003. The court dismissed the suit in its entirety.
The Appellants by their claims endorsed on their writ of Summons and their Statement of Claim instituted are seeking the following reliefs:
(a) Declaration that the notice of acquisition under the Public Lands acquisition of Oyo State and the Land Use Act 1978 of the parcel of land between Aregbe to Olorisaoko Village along Ijaiye Road, Moniya and Abedo Isabiyi along Oyo Road, Moniya Akinyele Local Government by the , defendant is irregular, null and void.
(b) An order setting aside the said acquisition under the Public Acquisition Law of Oyo State and the Land Use Act 1978.
Pleadings were filed and duly exchanged by the parties. The summary of the case is that the Plaintiffs who are now Appellants before this court instituted an action against the Defendant now Respondent at the lower court for purportedly acquiring their land without serving them any notice of acquisition and without paying them compensation. The Respondent’s case is that it caused public notices to be pasted on all structures and other features like trees within the area to be acquired and the Respondent’s chairman later explained to the community leaders the purpose of the acquisition, that the land was acquired under Land Use Act, 1978 and the acquisition notice was published in the Daily sketch Newspaper and in the Oyo State Government Gazette. It contended that the acquisition being challenged complied with the law under which it was acquired.
All the Plaintiffs gave evidence in support of their claim and called no other witness. The Defendant called five witnesses. At the end of the case the lower court in a considered judgment dismissed the Appellant’s suit in its entirety Appellants being dissatisfied with the judgment filed their notice of appeal dated 9th of July, 2003 containing three grounds of appeal.
In compliance with the rules of this court, Appellants filed their brief of argument on the 29th of April, 2004 while the Respondent filed his brief of argument on the 9th of July, 2004 but deemed properly filed and served on the 10th of June, 2008. At the hearing of the appeal, Appellants adopted and relied upon their brief of argument wherein three issues were settled for determination thus:
(1) Whether the learned trial Judge was right in holding that the plaintiffs failed to prove their title to the land in dispute.
(2) Whether the learned trial Judge was right by holding that the Plaintiffs/Appellants have no locus standi to institute the action.
(3) Whether the learned trial Judge was right in view of the evidence proffered by the witnesses, to have declined to decide whether there was a valid acquisition by the Defendant or not.
The Respondent at the hearing of the appeal adopted and relied the Respondent’s brief filed on 9/7/04 but deemed properly filed 10/6/08. Respondent settled two issues for determination as follows:
(1) Whether the Appellants having regard to the state of pleadings and evidence proffered thereon, established their entitlement to the reliefs sought.
(2) Whether the failure of the lower court to pronounce on issue raised by the Appellants ipso facto amounts to a miscarriage of justice as to warrant the setting aside of the lower courts judgment.
Having considered the issues formulated by the parties. I am of the view that the issues formulated by the Respondent are adequate to dispose of the appeal.
Issue One
Whether the Appellants having regard to the state of pleadings and evidence proffered thereon, established their entitlement to the relief sought.
Learned Counsel for the Appellants submitted that parties are bound by their pleadings. He argued that the issue before the trial court is whether the compulsory acquisition of the Plaintiffs land was valid according to law or not. The question of how they came to own the land does not arise. It is not a competing claim by two parties. It does not involve the question of declaration to title where it is necessary to prove how such a person came to own the land in dispute. It is the contention of the Plaintiffs that the whole land belongs to the communities and that their families own the farmlands at Mogaji village, Akanko village and Akinyode. Plaintiffs now Appellants testified at the lower court that they were carrying on farming on their respective farmlands and that they drove away the surveyors sent by the Defendant to survey the land.
These are acts of possession and where the Plaintiffs have proved sufficient acts of possession, they established a prima facie case that they are the owners of the land in dispute. The onus is therefore on the Defendant under section 145 of the Evidence Act to rebut it. Appellants relied on the case of GODDY UMEOBI V. CHIEF A. E. OTUKOYA EKWUBIRI (1966) 1 A.N.L.R. at 32. Learned Counsel for the Appellants submitted that the learned trial Judge failed to advert her mind to the evidence that the question of title is not in issue between the parties. The issue before the court is whether the Defendant acquired the land in compliance with the provision of the law.
Plaintiffs in their evidence said that they planted Cocoa, Palm trees and other economic trees on the land in dispute and that when the surveyors came to the land to survey it, they drove them away when they embarked on the destruction of the economic trees planted on the land in dispute, If the court had averted its mind to the evidence, it would not have come to the decision that the Plaintiffs have no locus standi to institute the action. He relied on the case of LAWANI ADESOKAN & ORS V. PRINCE MICHEAL OYETUNJI AND ORS. (1999) 3 SCNJ page 1.
He contended that the Defendant did not plead locus standi as a defence.
No issue is joined on it. Courts are expected to limit themselves to the issues raised by the parties in their pleadings. To do otherwise will result in a denial of justice. Learned Counsel for the Appellant referred to the cases of N.N.P.C. LTD V. BANK OF WEST AFRICA (1962) 1 A.N.L.R. Part 4 at 559, KALIO V. (1975) 8 SC at 15, N.N.P.C. LTD V. THOMPSON ORGANISATION (1969) 1 A.N.L.R. page 1 at 138.
Submitting further that none of the community members came forward or wrote to the court that they are not representing them. There had never been any rule of practice that forbid the making of declaration even when some of the persons interested in the subject of the declaration were not before the court. The Appellants decided to make themselves the champions of the rights of those not represented and had fought the case on that basis. He relied on the case of IKEBIFE IBENEWEKA & ORS V. PETER EGBUNA 7 ORS. (1964) 1 W.L.R. page 219. He submitted that the Plaintiffs tendered exhibit ‘A’, the list of communities they are representing. Learned Counsel for the Appellants urged the court to resolve issue one in favour of the Appellants.
Learned counsel for the Respondents submitted that by paragraph 2 of its statement of defence denied expressly all the averments contained in the Appellants statement of claim except paragraph 4 of their claim thus joining issues effectively with the Appellants on their claims. Learned Counsel for the Respondent referred to the case of UGOCHUKWU V. UNIPETROL (NIG) PLC (2002) 7 N.W.L.R. Part 765 page 1 at page 6. Submitted further that by virtue of their claims, the Appellants need to establish how they became entitled to assert the right they were seeking to enforce in the action which involves a determination of the capacity in which the right is held whether as individuals, joint owners, representative of their respective families or communities within the acquired land. The issue involves a consideration and determination of the locus of the Appellants to institute and maintain this action. Respondent placed reliance on the case of ADENUGA V. ODUMERU (2002) 8 N.W.L.R part 821 page 163 at 169-170.
The five ways of establishing ownership or an entitlement to an interest in land are
(1) Proof by additional history or traditional evidence;
(2) Proof by grant or production of document of title;
(3) Proof of long possession;
(4) Proof by possession of connected or adjacent land in circumstances rendering it probable that the owner of such land would in addition be the owner of the land in dispute;
(5) Proof of act of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that the person exercising such is the true owner of the land.
Respondent retied on the cases of IDUNDUN & ORS V. OKUMAGBA (1976) 9 & 10 SC at 277 and ATANDA V. AJANI (1989) 3 N.W.L.R. Part II at 511. He submitted that Appellants pleading is devoid and bereft of the requisite facts upon which evidence could have been led to establish any of the five recognized ways of proving ownership of land.
No fact was pleaded as to who founded the land or first settled on it, how the land was founded or settled upon, particulars and names of intervening owners or holders without gaps through whom the land devolved before getting to them and no such evidence was orally proffered save for the bare assertion tat they are absolute owner of the land and that they have been farming for long ago which assertion does not establish anything and did not discharge the evidential burden placed on the Appellants. He referred to the cases of ADEJUMO V. AYANTAGBE (1999) 3 N.W.L.R Part 75 page 238 and DIKE V. OKOLO EDO (1999) 7 S.C.N.J at 248.
Learned Counsel for the Respondent contended further that there must be a starting point or origin to a possession which will be the basis of an enforceable right as being claimed by the Appellants. Any evidence of possession as led here without the “root” of such possession being pleaded and established is a branch that cannot stand alone without the tree. He referred to the cases of REGISTERED TRUSTEES OF APOSTOLIC FAITH MISSION V. JAMES (1987) 3 N.W.L.R Part 61 at page 556 and JIWAL V. DIMILONG (2003) 9 N.W.L.R. Part 824 page 154 at 160.
Submitting further that Appellants never pleaded nor led evidence of any defined area owned by them or their families or the portion owned by any of the communities on the land in dispute. No averment is contained in their pleading nor was evidence led to establish the boundaries of their assumed holdings nor was the identity of any of their boundary men disclosed or proffered. The only fact pleaded that remotely touched on an area is dimension of the land in dispute in paragraph 5 of the Appellant’s reply to Respondent’s statement of defence wherein the description of the proposed acquisition contained in exhibit A of the perimeter plan containing an area of 840 acres was tendered. No evidence was proffered as to which portion of the over 840 acres of land belonged to the Appellants individually or to their families or to any of the communities. A declaration to an undefined area of land cannot be made in favour of the Appellants in the circumstance. Learned Counsel for the Respondent urged the court to resolve the issue against the Appellants.
Where a party institutes an action in a representative capacity, he is expected to endorse the writ of summons with a statement showing that he is suing in such capacity. The essence of the rule requiring endorsement of representative capacity of parties on court process is to put all parties and the court on notice of the capacity of each part to the suit, so that they are aware of the claim vis-a-vis the stance of the parties.
See the case of KARA VS. WASSAH (2001) 18 N.W.L.R Part 744 page 117 at 122.
In the instant case, it is not endorsed or stated anywhere on the writ of summons or in the statement of claim that the Plaintiff who are now Appellants instituted this action in a representative capacity. It is also not pleaded anywhere in the statement of claim that the Plaintiffs have instituted this action in a representative capacity. From their writ of summons, statement of claim and reply to the statement of defence, one is not left in doubt as to the Capacity in which the Appellants commenced this action. Their processes were all headed in their individual names and not as representing anybody nor any of the communities situated within Exhibits A, E and G. For ease of reference, I shall now reproduce some of the paragraphs in the statement of claim.
Para 1- . The 1st Plaintiff is a farmer and lives at Moniya.
Para 2. – The 2nd Plaintiff is a farmer and lives at Moniya
Para 3 – The 3rd Plaintiff is a farmer and lives at Moniya
Para 4 – The defendant is Akinyele Local Government with its head office at Moniya.
However, the Plaintiff in paragraph 3 of the reply to the statement of defence pleaded that they are the representatives of the communities within the land indispute. It states:
“The Plaintiff avers that they are representatives capacity of the communities within the purported acquired land.”
One can deduce from this paragraph that the Plaintiffs are saying that they have instituted this action in a representative capacity and as representatives of the communities within the land in dispute. It is my view that merely pleading that they are suing in a representative capacity without pleading those they claim they represent is fatal to any contention that the plaintiffs instituted this action as representatives of communities within the land in dispute.
Apart from this, the Plaintiffs under cross examination mentioned the names of their families as Mogaji, Alako and Akiyode respectively. They never pleaded nor stated in their evidence that they are representing their families or that they have the authority of their families to institute this action. It is the law that where an action in a representative capacity is not properly instituted, it would be treated as a personal action. See IFEKWE V. MODU (2000) 14 N.N.L.R. Part 688 page 459 at 466.
I am unable to agree with the Learned Appellants’ Counsel Submission that the question of declaration of title to land does not arise in this case, if they are claiming that the whole land belongs to the communities and that their families own the farmlands. Going through the record, Appellants made two inconsistent averments. The first is that the land belongs to the Plaintiffs absolutely as individuals. See paras 1-3 of the statement of claim reproduced earlier in the course of this judgment. The second is that the land belongs to Alako, Akinyele and Lalakin families. This is contained in paragraph 1 of the reply to the statement of defence.
Appellants did not lead evidence in support of the two averments. They never stated how they came to own the land in dispute absolutely as an individual or as families or as communities. As rightly submitted by the learned Counsel for the Respondent, there must be a starting point to a possession which will be the basis of an enforceable right claimed by the Appellants. One cannot put something on nothing and expect it to stand. From the entire pleadings and evidence of the Appellants, they failed to prove their title to the land in dispute. It is the law that a Plaintiff who claims a declaration of entitlement to land has the abounding duty to prove his title by credible evidence notwithstanding any weakness in the case of the defence unless the case of the defendant actually supports the Plaintiff’s claim. See BELLO V. EWEKA (1981) 1 SC page 101, AKINDURO V. ALAYA (2007) 15 N.W.L.R. Part 1057 at 312, ODUNZE V. NWOSU (2007) 13 N.W.L.R. Part 1050 at page 1 and OGUNJEMILA V. AJIBADE (2010) 11 N.W.L.R Part 1206 page 559 at 581 paras C-D.
Since the Appellants have failed to prove that they are the occupiers or holders of the land in dispute or that they were using the land for agricultural purposes or that title to the possession of the land in dispute for agricultural purposes was vested in them as individuals or in their families, they are therefore not beneficiaries of any deemed grant under section 36(2) of the Land use Act which states:
“Any occupier or holder of such land, whether under customary rights or otherwise howsoever, shall if that land was on the commencement of this Decree being used for agricultural purposes continue to be entitled to possession of the land for use for agricultural purposes as if a customary right of occupancy had been granted to the occupier or holder thereof by the appropriate Local Government and the reference in this subsection to land being used for agricultural purposes includes land which is in accordance with the custom of the locality concerned, allowed to lie fallow for purposes of recuperation of the soil.”
Appellants having failed to prove that they are beneficiaries of a deemed grant under section 36(2) of the Land Use Act therefore have no locus standi to challenge the validity of the acquisition in this case. See LAWSON V. AJIBOLA (1991) 6 N.W.L.R. Part 195 page 44 where the Supreme Court held that:
“A party who fails to prove title to land or any interest in the land or possession of the land has no locus standi to challenge the validity of the compulsory acquisition of the land by the Government.”
The learned trial Judge rightly held at page 67 of the record that:
“Having failed to prove that they are the holders or occupiers of the lands, they cannot contend that they are the ones to be served with notice, the holder(s) or occupier(s) whoever they have not challenged the acquisition. It is my view that this court is precluded this entire facts and e from looking unto the in this case, to do so in my view amounts to embarking on a futile journey which will benefit not one.”
Even under customary tenancy, possession is not a conclusive proof of ownership. See OBAWOLE V. COKER (1994) 5 N.W.L.R part 345 page 416 and Ogun v. Akinyelu (2004) 18 N.W.L.R Part 905 at 397.
The submission of the learned Appellants counsel that that Respondent did not raise issue of locus standi in its defence is incorrect on the face of the pleadings in this case. If the entire pleadings are read together there is no doubt that issues were clearly joined on the title of the Appellants to the land in dispute and the extent of the land they are claiming.
Even if the lower court found that the acquisition is invalid, Appellants cannot take benefit of the finding because they have failed to establish their title to the land. They are therefore not entitled to the relief claimed.
The courts are bound to act on legally admissible and admitted evidence based on pleaded facts. see OBULAR V. OBARO (2000) F.W.L.R. Part 47 page 1004. The evidence on record and the pleadings upon which the evidence was proffered by the Appellants did not establish:
(1) The existence of any right in them either as individuals in their own right or joint owners together, or representative of their individual families or representative of any community within the land in dispute,
(2) That the land in dispute is owned or ‘possessed- by their respective families or any identified community,
(3) The extent or area or portion of the land in dispute belonging to them either individually or their family or any community,
(4) The root of title or origin of their individual right, their individual family’s right or the right of any community to own or possess or remain in possession of any definite portion of the land in dispute as to entitle them to the judgment of the lower court. See the cases of ODOFIN V. AYOOLA (1984) N.S.C.C page 711 at 731, LAWSON V. AJIBOLA (1997) 6 S.C.N.J page 1 at 24 and OWODUNNI V. REGISTERED TRUSTEES OF C.C.C (2000) 2 S.C.N.Q.R Part 2 page 1407 at 1430 per Ogundare J.S.C.
Having said so much, issue one is hereby resolved against the Appellants.
Issue 2
A consideration and determination of issue academic exercise which courts are forbidden to finding that Appellants have failed to establish two would amount to an embark on in view of the their title to the land in dispute. See AKEREDOLU V. AKINREMI (1996) 2 N.W.L.R. Part 25 page 710 at 725.
Finally this, appeal lacks merit and it is accordingly dismissed. The judgment of the lower court in suit no. 1/24/97 delivered on the 15th May, 2003 is hereby affirmed. I make no order as to cost.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the opportunity for reading before now the judgment of my learned brother Fasanmi, J.C.A.
I agree with the reasoning and conclusion arrived at by his lordship. The appeal has no merit and it is equally dismissed by me. I also affirm the judgment of the lower court. I abide by the order on costs.
JOSEPH SHAGBAOR IKYEGH: I subscribe to the lucid judgment prepared by my learned brother, FASANMI, J.C.A. Which I had the privilege of reading in draft.
The appellant did not prove his ownership or exclusive possession of the acquired land to warrant the court below to award his claims in respect of the said acquisition, which that court rightly dismissed. See Oba Yekini Elegushi and others v. Sarata Oseni and others (2005) 14 NWLR (pt. 945) 348 at 375 thus:
“A person who is not the proven owner or occupier of land in respect of which notice of acquisition/revocation was issued has no locus standi in law to seek the nullification of the acquisition. See Titiloye v. Olupo (1991) 7 NWLR (pt.205) 519 SC AND Kokoro-Owo v. Lagos State Government (2001) FWLR (pt. 61) 1709 SC.”
I too would dismiss the appeal for the above given reason and for the fuller reasons contained in the judgment of my learned brother, FASANMI, J.C.A. The judgment of the court below is hereby affirmed. No order as to costs.
Appearances
BOWOFADE ADEREMI holds MR. A. O. BADA’S Brief For Appellant
AND
B. O. OKEKE For Respondent
