CHIEF AYUBA RAJI & ORS v. CHIEF ELISHA OLALEKAN OYERO & ANOR
(2019)LCN/13641(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of July, 2019
CA/AK/40/2016
RATIO
PARTY: THE MAIN PURPOSE OF MAKING A PERSON A PARTY TO A SUIT
Or as Ogwuegbu, JSC puts it very graphically in BABAYEJU & ANOR V ASHAMU & ANOR (1998) 9 NWLR, PT 567, 546:
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 ….
See also PALMAROL (NIG) LTD & ANOR V ASUAN (2019) LPELR 47260 (CA) and POROYE & ORS V MAKARFI & ORS (2017) LPELR – 42738 (SC). PER PATRICIA AJUMA MAHMOUD, J.C.A.
PARTIES: NECESSARY PARTIES: EFFECT OF EXCLUDING A NECESSARY PARTY TO A SUIT
In the case of UNITED FOAMS PRODUCTS (NIG) LTD & ORS V OPOBIYI & ANOR (2017) LPELR 43166 (CA) my learned brother, Ugo, JCA held:
Now, one fundamental pillar of our judicial system is that no man shall be condemned behind his back; that a Court should only make orders against those who are before it and have had opportunity of correcting any unfavourable comment or evidence that may have been made against them. ……… PER PATRICIA AJUMA MAHMOUD, J.C.A.
EFFECT OF NON JOINDER OF AN IMPORTANT PARTY IN SUIT
The effect of non joinder in these circumstances deprives the Court of jurisdiction and any decision made is liable to be set aside. See also BOSSOM VENTURES LTD V FCDA & ANOR (2012) LPELR 14356 (CA) and MAINSTREET BANK & ORS V AMOS & ORS (2014) LPELR 23361 (CA). I find that the non joinder of the Olufon of Ifon, a very necessary party in the suit in the lower Court renders the judgment incompetent liable to being set aside.PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICE
MOHAMMED AMBI-USI DANJUMA justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD justice of The Court of Appeal of Nigeria
Between
1. CHIEF AYUBA RAJI
2. PA. TIJANI ABIONA
3. MR. YISA OYELAYO
4. MR. LATEEF OLABANJI
5. MR. HILIRU KAZEEM OLATUNJI
(For himself and on behalf of Ajibola family of Ifon)Appellant(s)
AND
1. CHIEF ELISHA OLALEKAN OYERO
2. MR IBRAHIM OKUNOYE
(For themselves and on behalf of Ooye family of Iwoye, Ifon)Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. justice A. A. Aderibigbe of the Osun State High Court sitting at Osogbo and delivered on the 28/01/2016. The 1st -5th appellants were the defendants in the Court below. The 6th & 7th appellants were joined as interested parties pursuant to leave of Court sought and granted on the 11th of January 2017. The respondents were the plaintiffs in the Court below where they had sued the 1st – 5th appellants.
The claim of the respondents against the 1st 5th appellants in the Court below as contained on page 2 of the printed records is: –
“(a) Declaration that the plaintiffs are entitled to statutory right of occupancy to the parcel of land measuring 1201.178 Hectares situate, lying and being at Iwoye and bounded as follows:
In the North West by Asalu land, North East by Arena land, East by Alawe and Alaro land, South by Asade land and West by Eleesi land all of Ifon in Orolu Local Government of Osun State which said land is more particularly delineated on plan No. LSAT/OS/75 dated 03/02/2011
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and drawn by W.T. Adeniyi, Registered Surveyor.
b. Possession of the land described in (a) above.
c. N10, 000, 000 (Ten Million Naira) damages for trespass committed by the defendants by themselves, agents privies, servants or otherwise whatsoever from committing further trespass on the land described above.
d. Perpetual injunction restraining the defendants by themselves, agents privies, servants or otherwise whatsoever from committing further trespass on the land described in (a) above.
The case of the plaintiffs/respondents at the lower Court was that they are entitled to the grant of statutory right of occupancy and exclusive possession of the land in dispute. That their ancestor, one Ojo Ibiloye, the first Ooye of Ifon settled on the land in dispute some 300 years ago with his two children, Oyeyi and Modola who succeeded him. That the old inner council of Ifon consisted of six members including Olufon, the head of the town. That the other old inner council members were Esa, Aje, Oye, Elesi and Asalu who founded the town with the original Olufon. It was also the case of the respondents that the appellants who are of the Ajibola
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family were not among the original founders of present Ifon Osun, otherwise known as Ifon Ile. That the appellants arrived in Ifon from Ara about 150 years and were led by one Ajayi Olajide to solicit for farmland on Ooye family land and were thus tenants on Ooye land.
The 1st 5th defendants/respondents on the other hand claimed that the whole land in Ifon inclusive of the land in dispute was first settled on by Olaosa Aladikun (Akogun Erujeje) who is the ancestor of the current Olufon of Ifon. That part of the land was granted to Olukuewu, the ancestor of the 1st 5th appellants and the respondents. That within this land was Igbo Ajoyeba (stool land) which exclusively belongs to whoever is the reigning Ooye of Ifon.
In proof of their case the plaintiffs/respondents called six witnesses and also tendered six exhibits which were marked as P1 – P6. 1st 5th defendants/appellants on their part called eight witnesses and tendered ten exhibits, marked as Exhibits D1 – D10.
At the conclusion of hearing the learned trial judge gave judgment in favour of the respondents granting all their claims as sought except that he reduced the
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claim for damages from N10, 000, 000 to N2,000,000.
It is against this judgment that the 1st 5th appellants by a notice of appeal dated and filed on the 03/02/2016 appealed to this Court on the following six grounds:
1. The learned trial judge erred in law in granting title and possession of the land in dispute to the Claimants/Respondents when the Claimants/Respondents failed to discharge the onus of proof a decision which is contrary to law.
2. The learned trial judge erred in law in placing any reliance on Exhibit P1 Intelligence Report of Northern District by E. R. Ward on the traditional history of the land in dispute a decision which is contrary to law.
3. The learned trial judge erred in law by awarding N2, 000, 000 (Two Million Naira) damages and possession of the land in dispute to the Claimants/Respondents a decision that is contrary to law.
4. The learned trial judge erred in law when he entered judgment in favour of the Claimants/Respondents who have failed to show the identity of the land in dispute a decision that is contrary law.
5. The learned trial judge erred in law when he held that the new Chieftaincy
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Declaration made by Olufon Exhibit P6 showed that they are not members of Ooye family and not entitled to the land in dispute a decision that is contrary to law.
6. The judgment is against the weight of Evidence.
Whereof the appellants sought the order of this Court setting aside the judgment of the lower Court and allowing this appeal.
The 6th 7th respondents, the Olufon of Ifon Osun and prince Sunmonu Olatoye (for himself and on behalf of the Olufon family of Ifon Osun) were not parties at the trial Court upon the leave of this Court sought and granted on the 11/01/2017 by a notice of appeal filed on the 30/01/2017 appealed as interested parties on five grounds:-
GROUND 1
The judgment is against the weight of evidence.
GROUND 2
The learned trial judge erred in law when he held that Exhibit P1 shows that Ifon was founded by the Olufon along with Esa, Aje, Oye, Elesi and Asalu and from there concluded that Ifon was jointly founded by the Olufon, Esa, Aje, Oye, Elesi and Asalu without giving the Olufon any opportunity to be heard before holding so.
GROUND 3
The learned trial judge erred in law when he held
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thus:- Be that as it may, the fact contained in Exhibit P1 have not been controverted by the defendants: that is, the Olufon and the older inner council of which consisted of six members, including the Olufon, the head of the town, the Esa, Aje, Oye, Elesi and Asalu founded the Ifon town.
GROUND 4
The learned trial judge erred in law when he held thus: There is also evidence before me that any reigning Ooye has exclusive possession and proprietary right to Igbo Ajoyeba (Stool Land) farmland otherwise known as Iwoye Land.
GROUND 5
The learned trial judge erred in law when he held thus:- The question then is: if the land belongs to Olufon, why did he have to acquire it all over again from the Ooye family, and why did the Olufon agree to allow the Ooye family to have exclusive possession of the land in dispute in that case, if indeed he (Olufon) is the owner of the land?
Whereof the 6th and 7th appellants sought the leave of Court to set aside the holding of the lower Court to the effect that:
1) Ifon was jointly founded by the Olufon along with Esa, Aje, Oye, Elesi and Asalu.
2) The
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Olufon and the old inner council of Ifon which consisted of six members, including the Olufon, the head of the town, the Esa, Aje, Oye, Elesi and Asalu founded Ifon town
3) Any reigning Ooye has proprietary right to Igbo Ajoyeba (stool land) farmland otherwise known as Iwoye land or any other land in Ifon and
substitute it with a holding that Ifon was exclusively founded by the Olufon and that Olufon is the overlord of all lands in Ifon including the land in dispute in this case.
In prosecuting their appeal the 1st 5th appellants filed their brief of argument on the 05/06/2017. In it they raised three issues for determination by the Court as follows:-
1. Whether the learned trial judge was not in error, when he proceeded to give judgment that the Respondents are entitled to Statutory Right of Occupancy on the land in dispute when the Respondents have failed woefully to discharge their Onus of Proof of Ownership on the land in dispute. This issue covers grounds 1, 2 and 3 of the Ground of Appeal.
2. Whether apparent contradiction in the Respondents (I. E. Plaintiffs at the lower Court) evidence on
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the identity of the land in dispute was not fatal to the claims of the Respondents and or whether the learned trial judge was right in giving judgment in favour of the Respondents having failed to identify the land in dispute. This issue covers ground 4 of the Ground of Appeal.
3. Whether Exhibit P6 (i. e. The New Chieftaincy Declaration) denies the 1st -5th Appellants as being a member of Ooye family and makes them not to be entitled to the land in dispute. This issue is distilled on ground 5 of the grounds of appeal.
The 6th and 7th appellants filed their brief of argument on the 15/08/2017.
In arguing the appeal, MR A. G. Adeniran of counsel for the 6th and 7th appellants adopted the brief as their legal arguments in support of the appeal. In it they formulated four issues for the determination of the Court:
(1) Whether the lower Court was right when he made certain findings and holdings touching on the interest of the Olufon of Ifon in a case before him in which the Olufon was not a party and without giving the Olufon any opportunity to be heard before making all the findings and holdings against his interest.
(2) Whether the
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learned trial judge was right when he relied on Exhibit P1 to hold that Ifon was jointly founded by the Olufon and five of his chiefs when the maker of the said Exhibit P1 was not called as an expert witness and there was no evidence whatever before him to show that the said Exhibit was a document generally acknowledged either in Nigeria or elsewhere as a standard work or as appropriate authority on the history of the founding of Ifon so as to enable the Court to resort, without justification, to its aid.
(3) Whether in view of the various evidence before him at the lower Court to the effect that the Olufon is the overlord of all lands in Ifon, the learned trial judge was right when he held that any reigning Ooye has exclusive and proprietary right to Igbo Ajoyeba or any other land in Ifon.
(4) Whether the learned trial judge was right when he concluded from the facts that a particular Olufon took a grant of a portion of land in Ifon from the Ooye family and from the fact that Exhibit P4 stated that the Ooye family had exclusive possession over the land in dispute in that judgment to conclude that the Olufon of Ifon was not the owner of the land in Ifon.
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Counsel submitted that the learned trial judge was wrong when he gave judgment against the respondents in the lower Court in a case in which they are not parties and thus gave them no opportunity to be heard before making damning finding and holding against them in their absence. Counsel further submitted that the learned trial judge was wrong to have relied on Exhibit P1 to hold that Ifon was jointly founded by the Olufon and five of his chiefs when the maker of the document was not called as a witness before the Court and the document was not shown to have been a document generally acknowledged either in Nigeria or elsewhere as a standard work or as appropriate authority on the history of the founding of Ifon so as to enable the Court to resort, without justification, to its aid. That the learned trial judge was wrong when he failed to act on all th
