BOSSOM VENTURES LIMITED v. FEDERAL CAPITAL DEVELOPMENT AUTHORITY & ANOR
(2012)LCN/5096(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of June, 2012
CA/A/95/2009
RATIO
PROLIFERATION OF ISSUES IN COURT
The courts have always treated proliferation of issues as distasteful and deprecatory. See Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544; Saraki v. Kummi (2000) FWLR (pt. 18) 319; Ubanatu v. C.O.P. (2000) 2 NWLR (Pt. 643) 115; Akindipe v. C.O.P. (2000) 8 NWLR (Pt. 669) 376. PER. HUSSEIN MUKHTAR, J.C.A.
UNCONTROVERTED AVERMENTS IN PLEADINGS
Uncontroverted averments in pleadings are deemed to be admitted. In the case of Owners of M/V Gongola Hope & Nigerbrass Shipping Line Ltd. v. Smurfit case Nig. Ltd. & anor. (2007) 15 NWLR (Pt. 1056) 189 at 215-216 paras H-C the Supreme Court held thus:- “Also firmly settled, is that where the evidence of a plaintiff is unchallenged and uncontroverted and particularly, where the opposite party or side, has the opportunity to do so, it is always open to the trial court seized of the matter, to accept and act on such unchallenged and uncontroverted evidence before it.” PER. HUSSEIN MUKHTAR, J.C.A.
THE RATIONALE FOR JOINING A PARTY TO AN ACTION
The rationale for joining a party to an action is to make him bound by the verdict of the court and the matter cannot completely be settled in the absence of such party who has an identical interest with the defendant and who ultimately shall be bound by it. However, the action cannot be totally defeated by reason of non-joinder of parties. The court may nonetheless deal with the rights or interests of parties before it that does not in any way affect or whittle down the interest of others who have not been joined as parties. Thus, failure to join the occupants of the land in question does not defeat the intra questions or issues between the appellant and the respondents being determined. PER. HUSSEIN MUKHTAR, J.C.A.
JUSTICES
ZAINAB A. BULKACHUWA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
BOSSOM VENTURES LIMITED Appellant(s)
AND
1. FEDERAL CAPITAL DEVELOPMENT AUTHORITY
2. HON. MINISTER, FEDERAL CAPITAL TERRITORY Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory Abuja delivered on the 24th March 2009 per Aladetoyinbo, J in Suit No. FCT/HC/CV/227/09.
The dispute in respect of title to land between the parties herein relates to a right and certificate of occupancy No. FCT/ABU/MISC/6830 granted to the appellant by the respondents in 1992 over a piece of land situate at and known as Plot 2462 A6 Maitama District measuring about 1.7 hectares. The appellant then applied and was granted permission by the respondents to fence and commence housing development on the land, after which the appellants fenced the land and commenced the construction of housing estate. The respondents, however, served the appellant with a stop work order. The appellant thereupon took out a writ of summons against the respondents at the lower court claiming the following reliefs:-
“1. A declaration that the Plaintiffs are lawful owners, occupiers and users of the property situate at and known as Plot 2462, A6 Maitama District Abuja (“the property in issue”) by virtue of certificate of occupancy No. FCT/ABU/MISC/6830 dated the 10th day of March 1992.
2. A declaration that the Plaintiffs are entitled to an exclusive use and occupation of the property in issue including a right to expel trespassers from the property.
3. A declaration that the stop work order given to the Plaintiffs by the defendants is illegal, null and void.
4. N50,000.00 (fifty thousand Naira) Damages for trespass.
5. An order of perpetual injunction restraining the defendants either by themselves, servants, agents or privies from interfering with or in any way howsoever disturbing the plaintiffs exercise of their lawful rights to an exclusive occupation and use of the property.”
The appellant’s claim as averred in its pleading was amended with leave of court granted on 8th April 2008 wherein appellant sought for the following reliefs against the respondents:-
“a. An order setting aside the defendant’s order for the plaintiff to stop work on plot No. 2462, A6 Maitama covered by certificate of Occupancy FCT/ABU/ MISC/6830 Abuja as same is illegal and unconstitutional.
b. A declaration that the plaintiff is entitled to the use and enjoyment of the property lying and situate at plot No. 2462, A6 Maitama District Abuja covered by certificate of Occupancy No. FCT/ABU/MISC/6830 to the exclusion of the defendants or any other person(s) or institution(s).
c. A declaration that the entry into the property lying and situate at plot No. 2462, A6 Maitama covered by certificate of occupancy FCT/ABU/MISC/6830 by the defendants amount to an act of trespass and therefore wrongful.
d. An order of perpetual injunction restraining the defendants or anybody claiming through them from entering and taking over the land covered by certificates of Occupancy FCT/ABU/MISC/6830 or transferring interest in the property known as plot No, 2462, A6 Maitama District Abuja to any person or company other than the Plaintiff.
e. The sum of N80m (Eighty Million Naira only) as damages for trespass to the property covered by certificate of occupancy No. FCT/ABU/MISC/6830.
ALTERNATIVELY:
a) An Order directing the defendants to compensate the plaintiff with an alternative land/plot.
b) An Order directing the defendants to compensate the plaintiff by refunding to the plaintiffs the money used by the plaintiffs to develop the fence on the said plot, No. 2462, A6 Maitama covered by certificate of Occupancy FCT/ABU/MISC/6830.”
The respondent filed a notice of preliminary objection challenging the competence of the action but abandoned same. The suit was therefore heard and determined on the strength of the appellant’s case.
The lower court in its reserved and considered judgment delivered on the 24th March 2009 dismissed all the appellant’s claims. The disgruntled appellant filed a notice of appeal on nine grounds as reproduced below without the particulars thereof:-
GROUND 1
The learned Hon. trial Judge erred in law when he held that the Appellant’s land was acquired for overriding public interest.
GROUND 2
The learned Hon. trial Judge erred in law when he held “the Government reserve the right to revoke citizen title to land for overriding public interest. Such citizen whose land had been revoked is entitled to compensation, the amount to be compensated for the plaintiff ought to have been pleaded and sustained by evidence.”
GROUND 3
The learned Hon. trial Judge erred in law when he held that “the refusal of the plaintiff to join the individuals who purchased the houses built on the said plot by the defendants vitiate this proceedings.”
GROUND 4
The learned Hon. trial Judge erred in law when he held “The plaintiff further claim the sum of Eighty Million Naira (N80,000.00) as trespass. This Court is of the view that this is not a case of trespass simpliciter; who are the trespassers?; the defendants or the purchaser of Legal estate for value without notice. Definitely the defendants cannot be construed as trespassers; they have the right under the law to acquire the land of the plaintiff of overriding public interest. The only thing is that they did not follow the procedure stipulated by law, their refusals to follow due process does not make them trespassers, the purchasers of the houses built by the defendants on the said plot can he described as purchaser of legal estate for value without notice, they are not even parties to this proceedings; the issues whether they are trespassers or not does arise; the claim of Eighty Million Naira (N80,000,000.00) damages for trespass is hereby dismissed.”
GROUND 5
The learned Hon. trial Judge erred in law when he held “Can this Court order that the plaintiff be given another land by the defendant? Since the land given to the plaintiff by the defendants was not legally revoked or acquired, it will be wrong if this Court orders that the plaintiff who amended the statement of claim and further filed witness statement on oath of PW1 mismanaged this case, he ought to have taken advantage of the fact that the defendant filed to file Statement of Defence and failed to give evidence for their defence. He did not take such advantage but he mismanaged this suit.”
GROUND 6
The learned Hon. Judge misdirected himself in law when he failed to enter judgment for the plaintiff after his holding that “the plaintiff land which was compulsorily acquired by the defendants for overriding public interest without required revocation notice is of no effect, in other words, the law still regards the plaintiff as the owner of the said plot of land.”
GROUND 7
The learned Hon. Judge misdirected himself in law and failed to order for alternative land and or compensation for the appellant after his holding that “since the land given to the plaintiff by the defendants was not legally revoked or acquired, it will be wrong if this Court orders that the plaintiff be given another land.”
GROUND 8
The learned trial Judge misdirected himself in law when he held: “The objection of the learned counsel to the defendants that this suit is incompetent for non-joinder of necessary parties is hereby sustained.”
GROUND 9
The judgment of the learned trial Judge is against the weight of evidence.”
From the foregoing nine grounds of appeal, the following five issues were distilled by the appellant for determination:-
1. Having regard to the decision of the Supreme Court in the case of IDUNDU vs. OKUMAGBA, (1976) 9-10 SC 227 whether the appellant has proved its title to the property covered by certificate of occupancy No. FCT/ABU/MISC/6830 and whether the appellant’s counsel mismanaged the case of the appellant. (Distilled from ground 5).
2. Whether the acquisition and subsequent sale of appellant’s property to members of the public by the respondents during the pendency of the case at the trial court was within the contemplation of section 28 of the Land Use Act. (Distilled from grounds 1 and 3).
3. Having regard to the third parties who derived title from the respondents during the pendency of the
case at the trial court, whether those third parties are necessary or desirable parties whose non joinder was capable of vitiating the proceedings at the lower court. (Distilled from grounds 2 and 8).
4. Whether the learned trial Judge was right when he held that the respondents can revoke or take over
appellant’s property without adequate payment of compensation as required by the Land Use Act and whether the appellant has not proved its title to the property covered by certificate of Occupancy No. FCT/ABU/MISC/6830. (Distilled from grounds 3, 5, 6 and 7).
5. Having regard to the circumstances of this case, whether the action of the respondents in moving to the appellant’s property without either notice of revocation or payment of adequate compensation does not amount to act of trespass. (Distilled from ground 4).
The respondents, however, trimmed the issues for determination to the following three posers:-
(1) Whether the appellant is entitled to its claims on the strength of evidence adduced before the trial court.
(2) Whether the non-joinder of the alleged purchasers as parties is fatal to the suit.
(3) Whether the consideration of the notice of preliminary objection addressed to the trial court by the respondents occasioned any miscarriage of justice on the appellant.”
A mere glance at the appellant’s five issues indicates proliferation thereof on ground 5. While issue 1 distilled from ground 5 consists of two distinct issues, the appellant still distilled issue 4, inter alia, from ground 5. This shows that the pregnant issue 1 and issue 4 were distilled from the same ground 5. Issues were, therefore, proliferated from ground 5.
The courts have always treated proliferation of issues as distasteful and deprecatory. See Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544; Saraki v. Kummi (2000) FWLR (pt. 18) 319; Ubanatu v. C.O.P. (2000) 2 NWLR (Pt. 643) 115; Akindipe v. C.O.P. (2000) 8 NWLR (Pt. 669) 376.
The smuggled second poser in the first issue, being proliferated, is hereby struck out. However, issue 4 is sustained by grounds 3, 6 and 7. The appeal shall be determined on the appellant’s reframed five issues according to the foregoing appraisal.
Issue One
Having regard to the decision of the Supreme Court in the case of IDUNDU vs. OKUMAGBA, (1976) 9-10 SC 227 whether the appellant has proved its title to the property covered by certificate of occupancy No. FCT/ABU/MISC/6930.”
The learned counsel for the appellant referred to and listed the five ways of proving title to land as held by the Supreme Court in the case of Idundu v. Okumagba (1976) 9-10 SC 227 thus:-
“Plaintiffs who by their claim put their title in issue must prove their title by one of the five ways that is:-
a. by traditional evidence;
b. by production of document of title;
c. by acts of ownership over sufficient length or time numerous and positive enough to warrant the inference that the person is the true owner;
d. long possession;
e. by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would he the true owner of the land.”
It was submitted for the appellant that there was sufficient proof of its title to the land in question by tendering the certificate of occupancy No. FCT/ABU/MISC/6830 (exhibit ‘A’) covering plot 2462 in Cadastral zone A6 Maitama Abuja. The learned counsel for the appellant contended that the appellant has satisfied one of the ways of proving its title to the property as stipulated in Idundu v. Okumagba.
It was further argued for the appellant that since the respondents did not file a statement of defence at the lower court, the appellant’s pleadings were left unchallenged and uncontroverted. Reliance was placed on Mani v. Shanono (2006) 4 NWLR (Pt. 969) 132 at 157 paras B-D; Lijadu v. Lijadu (1991) 1 NWLR (Pt. 169) 627; and African Continental Bank Plc. V. Nwana Trading Stores Nig. Ltd. (2007) 1 NWLR (Pt. 1016) 596 at 628 paras A-B. Uncontroverted averments in pleadings are deemed to be admitted. In the case of Owners of M/V Gongola Hope & Nigerbrass Shipping Line Ltd. v. Smurfit case Nig. Ltd. & anor. (2007) 15 NWLR (Pt. 1056) 189 at 215-216 paras H-C the Supreme Court held thus:-
“Also firmly settled, is that where the evidence of a plaintiff is unchallenged and uncontroverted and particularly, where the opposite party or side, has the opportunity to do so, it is always open to the trial court seized of the matter, to accept and act on such unchallenged and uncontroverted evidence before it.”
The learned counsel for the appellant further submitted that where the defendants/respondents fail to file a statement of defence, the plaintiff/appellant is required to establish its case on a minimal of proof, which the appellant has done. The learned trial Judge himself noted, in the judgment (page 130 of the record) as follows:-
“Relying on the above authority, the plaintiff’s land which was compulsorily acquired by the defendants for overriding public interest without required revocation notice is of no effect; in order words the law still regards the plaintiff as the owner of the said plot of land.”
It was submitted that having so found, it was wrong for the leaned trial Judge to refuse the appellant such right on the ground that the appellant’s counsel mismanaged the case. The court was urged to resolve this issue in favour of the appellant.
The learned counsel for the respondents contended that the appellant must plead and adduce cogent and credible evidence on facts necessary to establish his claims. He submitted that where the plaintiff, as in the instant appeal, fails to discharge this burden his case must collapse. He referred to section 135 of the Evidence Act Cap. 112 LFN 1990 (section 131 of the Evidence Act 2011). The judicial authorities in the cases of Darma v. Batagarawa (2002) 17 NWLR (Pt. 796) 243 at 247; Ansambe v. B.O.N. Ltd. (2005) 8 NWLR (Pt. 928) 650 at 656 were cited. It was argued that the appellant did not discharge the burden of proof placed on him, and therefore did not shift it on the respondent.
It is pertinent that in Batagarawa’s case (supra) the pronouncement was predicated on the plaintiff’s duty to prove his case where the averments in his pleadings have been denied or controverted by the defendant. In Asambe’s case (supra) the court stressed the point that a plaintiff cannot rely on the weakness of his opponent’s case but must discharge the burden of proving his case by credible evidence. The burden of proof does not shift to the defendant until the plaintiff has adduced credible evidence to prove his case on the preponderance of probabilities.
Each of the above cited authorities deals with a situation where both parties have filed pleadings and is therefore clearly distinguishable from the instant case. The appellant did file and serve a statement of claim on the respondent but the latter failed or neglected to deny or controvert the averments therein thereby reducing the standard of proof placed on the appellant to minimal. Uncontroverted averments in pleadings are always regarded as having been admitted by the adversary. See African Continental Bank Plc. v. Nwana Trading Stores Nig. Ltd. (supra); Owners of M/V Gongola Hope & Nigerbrass Shipping Line Ltd. v. Sumerfit Gase Nig. Ltd. (supra).
The appellant had led evidence, apart from pleading the necessary facts, to the effect that the piece of land in dispute was duly allocated to it by tendering the Certificate of Occupancy No. FCT/ABU/MISC/6830 covering the said plot 2464, A6, Maitama District, Abuja which was admitted as exhibit ‘A’ without any challenge. The learned trial Judge was himself convinced by the unchallenged averments and evidence led at the trial by holding that “the law still regards the appellant as the owner of its plot.”
The respondent neither challenged the appellants’ averments regarding its right of occupancy of the plot in question nor, in any way, justified its entry and development of the same land and sale of the houses built thereon to other persons. The averment in paragraph 15A of the statement of claim pleaded thus:-
“The plaintiffs aver that after this matter was instituted in 1999, the defendants went ahead to develop the said plot No. 2462, A6, Maitama Abuja, sold the houses built thereon to private individuals who are now occupying same.”
[See page 74 of the Record of Appeal].
The learned trial judge instead of concentrating on the rights and obligations of the parties before him, derailed to consider extraneous issues that were never placed before the court when he held thus:-
“If these occupiers are ordered to quit the said houses on the ground that the houses belong to the plaintiff, it would amount to injustice because they are not parties to this suit.” [see page 130 of the Record of Appeal].
This turnaround was after the learned trial judge made proper findings on the pleadings and evidence adduced at the trial by holding thus:-
“Relying on the above authority, the plaintiff land which was compulsorily acquired by the defendant for overriding public interest without required revocation notice is of no effect, in other words the law still regards the plaintiff as the owner of the said plot of land,” [page 130 of the Record].
In the result appellant has by clearly proved its legal title to plot No. 2462, A6, Maitama-Abuja covered by exhibit ‘A’ certificate of occupancy No. FCT/ABU/MIS/6830. This answers the first issue in the affirmative, which is hereby resolved in favour of the appellant.
Issue 2
Whether the acquisition and subsequent sale of appellant’s property to members of the public by the respondents during the pendency of the case of the trial court was within the contemplation of section 28 of the Land Use Act.
It was submitted for the appellant that the sale of the appellant’s property by the respondent during the pendency of the case before the lower court was not within the contemplation of section 28 of the Land Use Act. The appellant had pleaded the fact that after the suit was filed at the lower court in 1999, the respondents proceeded to build houses on the said plot No. 2462, A6, Maitama-Abuja and sold the houses to private individuals who are now occupying same. The learned trial judge however hesitated giving the property to the appellant due to his fear that it would cause the occupants injustice since they are not parties to the suit. This is in spite of his finding that acquisition of the appellant’s land without revocation is null and void and the property still belongs to the appellant.
It was further submitted for the appellant that the learned trial judge misdirected himself when he described the purchasers from the respondents as purchasers for value without notice when the transaction clearly took place during the pendency of the suit at the court below. Moreover, it was tantamount to making out a case for the respondent and the court thereby descending into the arena of the dispute before it. It was further submitted for the appellant that the doctrine of lis pendis applies to nullify any transaction which took place during the pendency of the suit. paragraph 15(a) of the amended statement of claim so states thus:-
“The plaintiff avers that after this matter was instituted in 1999, the defendants went ahead to develop the said plot No.2462, A6, Maitama Abuja sold the houses built thereon to private individuals who are now occupying same.”
[see page 74 of the Record of Appeal].
Moreover, the statement on oath of P.W.1 states thus:-
“Relying on the above authority, the plaintiff land which was compulsorily acquired by the defendant for overriding public interest without required revocation notice is of no effect,..” [See Page 130 of the Record of Appeal].
The foregoing deposition and evidence of P.W.1 were not denied by the respondents and therefore remain unchallenged. Moreover, the appellant had also pleaded and led evidence to the effect that it was neither served with letter of revocation of the said plot No. 2462, A6, Maitama District, Abuja covered by certificate of occupancy No. FCT/ABU/MIS/6830 indicating any interest by the respondents to take over the land for public interest nor was the appellant compensated by the respondents in respect thereof. [See paragraphs 14 and 15 of the statement of claim at pages 36-37 of the record of appeal].
It is worthy of note, at least in passing, that the amended statement of claim at pages 72-76 of the record was signed by proxy “for R. O. Atabo” without stating the name of the signatory.
Such process signed by proxy is incompetent. However, the original statement of claim at pages 34-38 of the record signed by R.O. Atabo, Esq., a recognized legal practitioner on the bar roll suffices to sustain the appellant’s claim and contains all the salient averments supporting the appellant’s claim against the respondent.
The learned trial judge was seemingly confused between the right of the appellant and that of the purchasers for value from the respondents and in an effort to sort out the two right ended up in making the conflicting or inconsistent findings:-
“Relying on the above authority, the plaintiff land which was compulsorily acquired by the defendant for overriding public interest without required revocation notice is of no effect…” [See page 130 of the Record of Appeal].
The learned trial judge yet further held as follows:-
“The defendants or the purchasers of legal estate for value without notice definitely the defendant cannot be construed as trespassers, they have the right under the law to acquire the land of the plaintiff for overriding public interest, the only thing is that they did not follow the procedure stipulated by law, their refusal to follow due process does not make them trespassers…”
[Underlining for emphasis. See page 131 of the Record of Appeal].
In the instant case there was an uncontroverted averment and evidence before the lower court that the appellant was never served with a letter of revocation by the respondents. Section 28 of the Land Use Act which provides for power of revocation of right of occupancy is therefore inapplicable to the instant case. As the learned trial judge found the compulsory acquisition of the appellant’s land by the respondents without first revoking the appellant’s subsisting right is null and void and of no effect whatsoever. The only way the respondents could have regained control over the same piece of land that was earlier allocated to the appellant was by revoking the right granted to the appellant.
When the appellant’s right is still valid and subsisting and remains unrevoked, the respondents’ interest in the same piece of land was already divested and they had nothing to give to anyone else.
The purported acquisition or sale of houses developed thereon was illegal and void. The second issue is similarly resolved in favour of the appellant.
Issue Three
Having regard to the third parties who derived title from the respondents during the pendency of the case at the trial court, whether those third parties are necessary or desirable parties whose non joinder was capable of vitiating the proceedings at the lower court.
It was submitted for the appellant that a necessary party to an action is one who will be bound by the result of the action and in the absence of whom the question(s) in controversy cannot be effectually settled.
The learned counsel for the appellant submitted that the third-party interest was none existent at the commencement of the suit. As such third party is not a necessary party as erroneously held by the learned trial judge. Reliance was placed on the cases of Adefarasin v. Dayekh (2007) 11 NWLR (Pt.1044) 89 at 116-117; Peenok Investment Ltd. V. Hotel Presidential Ltd. (1982) 12 SC 1; Green v. Green (1987) 3 NWLR (Pt.61) 480; Uku v. Okumagba (1974) 1 All NLR (Pt. 1) 475; Ugorji v. Onwu (1991) 3 NWLR (Pt. 178) 177.
It was further submitted that since the houses built by the respondent and sale thereof were all done during the pendency of the action between the parties herein, the building and sale of the houses is null and void and should be so declared. However the learned counsel for the appellant has cited the Supreme Court authority in the case of Alakija v. Abdullahi (1998) 6 NLR (Pt.552) where the apex court held thus:-
“A person who buys a plot of land during the pendency of litigation in respect of the same land has bought litigation for himself.”
The above pronouncement indicates the propriety of joining a purchaser of a landed property whether during or before pendency of the case just like the so called third parties in this case. It was however submitted for the appellant that the third parties are not necessary parties to the suit for the purpose of proper determination of the suit between the appellant and the respondents. The authorities cited by the learned counsel for the appellant are related to the rights of parties as against the issue as to who necessary parties are.
The learned counsel for the appellant further argued that the learned counsel for the respondents neither filed any address in support of his preliminary objection nor moved same but instead the court moved it for him and thereby descended into the arena.
With respect, this issue is extraneous and completely unconnected with issue 3. It is accordingly discountenanced. The learned counsel for the respondents argued that the appellant’s pleadings are to the effect that the land in question is occupied by the so called third parties who have not been joined as defendants in the appellant’s action at the lower court. The claim, which is essentially for trespass, ought to have been against the persons in occupation of the land who are necessary parties. In Green v Green (supra) Oputa, J.S.C, observed thus:-
“Necessary parties are those who are not only interested in the subject-matter of the proceedings but also who in their absence the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”
The court further held in the same judgment in Green and Green (supra) thus:
“The person to be joined in a proceeding must be someone whose Presence is necessary as party. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result of the action and the question to be settled, there must be question in the action which cannot be effectually and completely settled unless he is a party.”
This point is further buttressed by the pronouncement in Jidda v. Kachalla (1999) 4 NWLR (Pt. 599) 426 at 432 para. D where Pats-Acholonu, J.C.A. (as he then was) observed thus:-
“A necessary party is a person, body or an institution who or which the plaintiff or the petitioner must make a party in order to show cause of action and establish a nexus between him, the complainant and the act complained of.”
It was submitted for the respondents that the appellant’s action was defective for non-joinder of necessary parties. In Lawal v. P.G.P. Nig. Ltd. (2001) 17 NWLR (Pt. 742) 393 at 405- 406 paras. E-E, Galadima, J.C.A. (as he then was) held thus:-
“where the resolution of a crucial issue in an action revolves around a person who is not a party to the suit, then the action is fatally defective. This is because the parties in the suit could not have been property constituted. Thus, anyone whose presence is crucial and fundamental to the resolution of a matter before the court must be made a party to the proceedings. In the instant case, the evidence of the appellants that the parcel of land in dispute was acquired by the Lagos State Government was not challenged by the 3rd respondent. That being the case, the Lagos state Government ought to have been joined as a party to the suit. Thus, the non-participation of Lagos State Government has made the action of the 3rd respondent incompetent.”
see also Maikori v. Lele (1992) 3 NWLR (pt. 231) 525 where the Court held as follows:-
“Where a party claims a relief which when made will be binding on a person or ought to be binding on a person not a party to the action, the action becomes incompetent as the necessary party has not been joined.”
The Supreme Court has similarly held per Uthman Muhammed, J.S.C. in Babatola v. Aladejana (2001) 12 NWLR (Pt. 728) 597 at 615 paras B-D as follows:-
“The Court cannot give a judgment against a person who will be affected by its decision if such a person is not made a party or has no opportunity of defending the suit. This is because, the court has no jurisdiction to decide the fate of a person or a matter concerning him when such a person is not made a party to the action. In the instant case, therefore, it would be wrong for the court to make any decision in respect of the certificate of occupancy obtained by D.W.4, the brother of the respondent, over a portion of the land in dispute white the suit was pending, because he was not made a party to the suit.”
It was further submitted that sustaining the preliminary objection on point of jurisdiction does not amount to descending into the arena, since the appellant did not urge the court to discountenance the preliminary objection or even urge the court to strike out same. The court was urged to resolve this issue against the appellant and in favour of the respondents. It is difficult for one to imagine a suit such as the one filed by the appellant at the court below in which the substantive claim is for damages for trespass and a declaration that the appellant is entitled to the use and enjoyment of the land in dispute being determined in exclusion of the persons in actual occupation of the same piece of land. Any person who occupies any portion of the land in dispute as a bona fide owner thereof is clearly a necessary party. The suit could not have been decided in their absence on issues touching on their rights unless they are joined as parties.
Their exclusion or non-joinder is fatal to the plaintiff’s case in respect of the aspects of the claim touching on the rights of third parties who have not been joined in the action.
Thus, where a necessary party is not joined as in the instant appeal, the non-joinder will not render the proceedings void. Non-joinder per se is a procedural irregularity which does not affect the competence or jurisdiction of the trial court to entertain the case unless it leads to injustice or in any way over reaches the adversary party, in which case the judgment will be set aside on appeal.
It is difficult for one to perceive how the appellant herein could have got any of his substantive claims without affecting the rights of the persons in occupation of the land who also claim title to the same piece of land. They are necessary parties and must be joined in the suit as any determination on substantive claim must inevitably affect their right. The main claim cannot be determined behind their back. To do otherwise will certainly perpetrate injustice against them and complicate issues when they seek to contest their rights later on the same property. One wonders why the appellants were hesitant about joining them so as to dispose the matter on once-and-for-all basis. The rationale for joining a party to an action is to make him bound by the verdict of the court and the matter cannot completely be settled in the absence of such party who has an identical interest with the defendant and who ultimately shall be bound by it. However, the action cannot be totally defeated by reason of non-joinder of parties. The court may nonetheless deal with the rights or interests of parties before it that does not in any way affect or whittle down the interest of others who have not been joined as parties. Thus, failure to join the occupants of the land in question does not defeat the intra questions or issues between the appellant and the respondents being determined.
The appellant is, therefore, entitled to the alternative claim, which is exclusive to the parties herein and which the respondents have not denied and are, by the trite rule of pleadings deemed to have accepted such claim. The appellant has moreover led evidence on its entitlement to property wrongly taken over by the respondents. The appeal, therefore, succeeds partially on this score. The issue, to the extent of the alternative claim, cannot but be resolved in favour of the appellant. From the foregoing analysis the remaining issues 4 and 5, which touch on the rights of third parties who have not been joined, have been reduced to mere academic questions in to which the court would rather not delve.
The appeal is partly allowed on the resolution of issues 1 and 2 and partial resolution of issue 3 in favour of the appellant. The order made by the lower court dismissing the plaintiff’s claim, which is predicated upon non-joinder of necessary defendants is hereby set aside. In its stead judgment is hereby entered for the appellant on the first leg of its alternative claim. The second leg of the alternative claim is not specific as how much the appellant claims against the respondents and was only left at large. The court does not and cannot grant an uncertain relief.
Consequent upon entry of judgment in respect of the first leg of the alternative relief in favour of the appellant, it is hereby ordered that the respondents shall forthwith give the appellant a substitute of an equivalent piece of land in replacement of the appellants property situate at and known as Plot 2462, A6 Maitama District Abuja covered by certificate of Occupancy No. FCT/ABU/MISC/6830 dated the 10th day of March 1992. The current value of the seized land shall be considered in the substitution.
There shall be cost of Fifty Thousand Naira (N50,000) to the appellant against the respondents.
ZAINAB A. BULKACHUWA, J.C.A.: I have been privileged to read the draft of the judgment just delivered by my learned brother Mukhtar, JCA
I agree with the reasoning and conclusion reached that the appellant had adduced sufficient evidence(most particularly by Exhibit A.) to be entitled to plot No. 2462 A6 Maitama covered by Certificate of occupancy No. FCT/ABU/MIS/6830 and is therefore entitled to his alternative claim (a) before the lower court rather than a dismissal of all his claims before it.
The appeal is accordingly allowed in terms of alternative claim A. I abide by the consequential orders in the lead judgment including orders as to costs.
EJEMBI EKO, J.C.A.: The facts of this case have been adroitly summarized by my learned brother HUSSEIN MUKHTAR, JCA in the judgment just delivered which I had read before now in its draft form.
The Respondents, as defendants, did not defend the action which complained about abuse of the Appellants proprietary right to landed property in Abuja FCT by the 2nd Respondent. The Appellant had complained that his right of occupancy to the plot no 2482 A6 in Maitama District measuring about 1.7 hectares, which Right of Occupancy is evidenced by certificate of occupancy No FCT/ABU/MISC/6830, had been violated without regard to due process of the law. Section 44 (1) of the Constitution, 1999 seems to support his cause. The Section provides – 44. (1) No movable property or any interest in on immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
a) requires the prompt payment of compensation thereof; and
b) gives, to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a court of law or tribunal or body having jurisdiction that part of Nigeria.
The Respondent, particularly the 2nd Respondent, did not heed to the anti-impunity clause in the provisions of Section 44 (1) of the Constitution and the relevant provisions of the statutes on compulsory acquisition of landed property, particularly the procedural provisions and the requirement for payment of adequate compensation for the property compulsorily acquired. Notwithstanding these provisions of existing laws and the Constitution the 2nd Respondent had acted, seemingly, with impunity when he entered plot no 2462 A6 in Maitama District of Abuja FCT when the Appellant’s right of occupancy to the property was still subsisting, and is still subsisting in law. It has not been revoked.
The problem in this case, apparently mismanaged by the Appellant’s counsel at the trial court, is not per se the liability of the Defendants/Respondents to the claim. Proper and necessary parties, in respect of the substantive or first set of reliefs claimed, were not joined.
The said necessary parties are entitled to be heard under Section 36 (1) of the Constitution in the determination of their civil rights and obligations by the trial court. Their non-joinder was therefore fatal, as held by the learned trial Judge. The learned trial Judge, apparently jolted by the manner counsel for the plaintiff before him mismanaged the otherwise veritable case, had in the process dismissed the entire suit without considering the alternative reliefs that were directed largely against the present Respondents, particularly the 2nd Respondent. He was obligated to consider the alternative reliefs for whatever their worth.
Parties before the court are only entitled to the reliefs they had sought and proved. Where a plaintiff had been undone by his counsel, the court can not, out of sentiment, grant to the plaintiff the reliefs he had not proved. The only relief proved by the Appellant, as the plaintiff, is the claim for an order directing the defendants, now Respondents, to compensate the plaintiff, the Appellant, with alternative land/plot. The Appellant, as plaintiff, is entitled to this relief, and it is hereby granted in his favour against the Respondents, as defendants. The Respondents in implementing this order shall take into consideration the value of the property violated in view of its location and extent of development, which facts are undisputed and unchallenged at the trial court. That shall be the order of the trial court. The substantive reliefs claimed by the Plaintiff/Appellant are hereby struck out. The alternative relief no (b) is hereby dismissed.
The appeal is allowed by me. The orders of the learned trial Judge in the suit no FCT/HC/CV.227/2009 made on 24th March, 2009 are hereby partially affirmed and partially set aside. It is for these reasons that I concur in the lead judgment just delivered by my learned brother, HUSSEIN MUKHTAR, JCA and I do hereby abide by all consequential orders, including order as to costs, made therein.
Appearances
R. O. Atabo, Esq. with: U. Anyebe, Esq. L. M. Anenga, Esq. Amuda (Mrs), R. A. Agada, Esq.For Appellant
AND
Not represented but duly served.For Respondent
