CROSSDALE DEVT CO. LTD & ORS v. PETER & ORS (2021)

CROSSDALE DEVT CO. LTD & ORS v. PETER & ORS

(2021)LCN/15029(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, February 16, 2021

CA/C/203/2016

RATIO

ACTION: EFFECT OF LACK OF PROPER PARTIES ON THE JURISDICTION OF THE COURT

The Courts seem to have consolidated the state of the law that lack of proper parties casts a slur on the jurisdiction of the Court and that for a person to bring an action in respect of any subject matter, such a person must show that he has a legal right or special interest in that subject matter.
See AKINNUBI v. AKINNUBI (1997) 2 NWLR (Pt. 486) 144; GUDA v. KITTA (1999) 12 NWLR (Pt. 629) 21 CA; PLATEAU STATE v. A. G. FED. (2006) 3 NWLR (Pt. 967) 346. PER MOJEED ADEKUNLE OWOADE, J.C.A.

ACTION: CONSEQUENCE OF LACK OF A PLAINTIFF’S CAPACITY TO SUE

It only remains to say that where a suit is not properly constituted, as in this case, the Court does not have the jurisdiction to entertain the suit.
In OFIA v. EJEM (2006) ALL FWLR (supra) at page 1817 and more particularly at page 1824, the Supreme Court held:
“Where an action is not properly constituted, it robs the Court of jurisdiction to entertain the same. A complaint about the competence and proper Constitution of an action raises the issue of jurisdiction of the trial Court and ought to be decided first since judgment delivered in an action outside the jurisdiction of the Court amounts to a nullity irrespective of how well the proceeding was conducted…. PER MOJEED ADEKUNLE OWOADE, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. CROSSDALE DEVELOPMENT CO. LTD 2. CHIEF E.C.D. ABIA 3. STRADE E’PONTI NIG. LTD APPELANT(S)

And

BASSEY PETER 2. MONDAY JAMES NKU 3. IME JOHNSON UDO 4. INI JAMES NKU 5. IKPONG JOHN 6. THE ATTORNEY GENERAL, AKWA IBOM STATE RESPONDENT(S)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting at the Eket Judicial Division delivered by Honourable Justice Theresa I. Obot on the 30th day of June, 2015.

The Respondents as Plaintiffs filed a Writ of Summons dated 12/1/1988 claiming against the Appellants as Defendants. By an Amended Writ of Summons and a Further Amended Statement of Claim of 10/6/2008, the Respondents as Plaintiffs claimed against the Appellants Defendants as follows:
1. A declaration that the signatories to the purported agreement made by the Plaintiffs and four other persons now deceased on the first part and the 1st Defendant on the other part over a piece of land situate at Uquo Eket is false and ipso facto null and void.
2. A declaration that the said piece of land was leased under a memorandum to Grandi Lavori (Nig. Ltd.) for a term of years.
3. Cancellation of the Certificate of Occupancy No. EK/207/82 dated 21st December, 1982 issued to the 1st Defendant by the Governor of Cross River State.
4. Injunction restraining the 1st and

2nd Defendants from further interfering with the said property in (b) above.
5. The sum of N1m (One Million) Naira yearly from January 1996 till possession is given up by the 1st and 2nd Defendants for their use and occupation of the Plaintiffs land/properties, the subject matter in this suit.

In relation to the allegation of forgery and illegality, the Respondents pleaded in paragraph 12 of the same Further Amended Statement of Claim that:
12. When the plaintiffs examined the document, it was found out that the plaintiffs’ signatures were forged and or falsified. The copy of the said documents was retrieved by the plaintiffs at the meeting and shall be founded upon at the trial.
PARTICULARS OF FORGERY AND ILLEGALITY:
(a) Names of persons who had no land in the original area and whose names and signature were not on the original (genuine) lease were illegally included in the new lease which has Crossdale’s names as a lessee.
(b) The plaintiffs did not lease their land to Crossdale Development Limited.

The pleadings of the Appellants as Defendants in the case culminated in the Further, Further, Further Amended

Statement of Defence of the 1st and 2nd Defendants Statement of Defence of 4th Defendant and Counter-claim of 1st, 2nd and 4th Defendants on 24/4/2013 whereby the Appellants as 1st, 2nd and 4th Defendants counter claimed thus:
WHEREFORE the 1st, 2nd and 4th Defendants have suffered damage and hereby counter claim against the plaintiffs jointly and severally as follows:
1. A declaration of this Honourable Court that:
(a) The lease dated 29th day of December, 1977 granted by the Plaintiffs in favour of the 1st Defendant herein (CROSSDALE DEVELOPMENT CO. LTD.) is valid and subsisting.
(b) The invasion with a multitude of force by the Plaintiffs of the premises of STRADE E PONTI NIGERIA LTD and the estate of the 1st Defendant and the forceful taking over of the same by the Plaintiffs is wrongful and an unlawful interference in the business of the Defendants; and
(c) The continuous occupation and refusal to allow the Defendants entry into the forcefully occupied premises of the Defendants even for the purpose of taking an inventory of the property thereat, servicing and maintenance of its machinery, equipment and buildings is malicious and

calculated to deprive and aggravated and has aggravate the losses suffered by the Defendants.
2. An order of this Honourable Court restoring to the 1st Defendant possession of the premises known as and called STRADE E PONTI premises situate at No. 153 Eket/Oron Rod, Eket at Uqua village and comprised in Certificate of Occupancy No. EK/207/82.
3. An order of perpetual injunction restraining the Plaintiffs, their agents, privies and assigns from further trespassing on and occupying in any manner whatsoever the aforesaid premises of the 1st and 4th Defendants.
SPECIAL DAMAGES
(a) Cost of hiring tippers for 60 days at N30,000.00 per day           = 18,00,000.00
(b) Cost of hiring pay-loaders for 60 days at N35,000.00 per day       = 2,100,000.00
(c) Cost of hiring Tar Boiler for 60 days at N30,000.00 per day       = 1,800,000.00
(d) Cost of hiring Roller/Compactors for 60days at N40,000.00 per day   = 2,400,000.00
(e) Rent for 8 flats forcefully occupied by the Plaintiffs for 12years at

N300,000 per year                       = 28,800,000.00
(f) Monetary equivalent of plants, equipment, and materials listed in paragraph 12 = 255,670,000.00
(g) Rent for one (1) Warehouse at N3m per year for 12 years       = 36,000,000.00
(h) Cost of equipment in the Civil Works Laboratory taken over by Plaintiffs = 48,889,000.00
Total                                    = 377,459,000.00
General Damages               = 25,000,000.00

The 1st, 2nd and 4th Defendants Counter claim the sum of N402,459,000.00 (Four Hundred and Two Million, Four Hundred and Fifty-Nine Thousand Naira only) against the Plaintiffs jointly and severally.

All other processes were filed and duly exchanged between the Respondents and the Appellants.

The Respondents case was/is that they leased their land to a company called Grandi Lavori for 99 years at a twenty yearly advance lease. Their tenant Grandi Lavori paid the rent for the initial 20 years and also paid for economic trees/crops it had to destroy to make use of the land. There was a Memorandum of Understanding that was prepared by two lawyers each representing either party duly executed by the Respondents as the landlords and Grandi Lavori as their tenant. Grandi Lavori was to prepare and bring the real lease agreement for the Respondents to sign. It did not. Respondents later noticed that their people were being replaced with strangers as employees of Grandi Lavori which was against the term in the lease agreement. A meeting was held, it was at that meeting that they, Respondents demanded for the real

copy of the lease agreement that Grandi Lavori was to prepare based on the Memorandum of Understanding which was prepared by their respective Counsel for their signature. The 2nd Appellant Chief E. C. D. Abia, brought a Lease Agreement which had the Crossdale Development Company Ltd., the 1st Appellant in this case as the tenant and strange names included as lessors and landlords. This was how Respondents discovered the agreement that was produced for the Respondents to sign was not the agreement that they had entered with Grandi Lavori (Nig.) Ltd. Respondents were aggrieved because they felt that the 2nd Appellant had tricked them. They vehemently denied the signatures on the lease alleged to have been entered into between them and the 1st Appellant. It is Respondents case that the Certificate of Occupancy which the 2nd Appellant obtained from the Government was based on the fraudulent lease and therefore must be cancelled. They denied ever receiving rent from the 1st Appellant and prayed for N1M from 1996 being the year that the 1st, 2nd and 4th Appellants unlawfully took possession of the parcel of land which Respondents said they leased to Grandi Lavori until they deliver up possession thereof.

In their defence, 1st, 2nd and 4th Appellants testified that the land was rented by Grandi Lavori which was a sister company of the 1st Appellant. They contended that the Respondents consented to and sublet their property to the 1st Appellant per Exhibit 3. It was based on Exhibit 3 that the 2nd Appellant obtained the Certificate of Occupancy on the land. The 1st, 2nd and 4th Appellants contended that the Respondents drove them out of the premises while the tenancy subsisted, stole and destroyed their equipment. They are claiming the second hand value of these equipment.

To prove their claims, the Respondents as Plaintiffs called 4 (four) witnesses and tendered 9 (nine) Exhibits. The Appellants as Defendants called 3 (three) witnesses and tendered 4 (four) Exhibits.

At the close of trial, one of the salient points that came for determination in the Court below was “whether the suit of the Plaintiffs is properly constituted as to clothe this Honourable Court with the jurisdiction and competence to hear the suit”.

On this, it was argued by the Appellants as Defendants that the capacity in

which the action was brought is not reflected on the Amended Writ of summons which founded the suit and is nowhere pleaded in the Further Amended Statement of Claim of the Respondents Plaintiffs.

That as unlike the provisions of Order 13 Rule 12 (1) High Court (Civil Procedure) Rules, 2009, the PW1 neither offered any evidence touching on the capacity in which the action is brought nor disclose his mandate in bringing the suit with various claimants with diverse interests. Furthermore, that at various breaths under cross-examination, the PW1 stated that:
(a) “the land in dispute was not owned by individuals but was owned by the Nku Family … and was given to Grandi Lavori as a family land.
(b) “….. that it is true the land in dispute was leased to Grandi Lavori by the Plaintiffs in their individual capacities …”

In resolving this issue of competence and/or jurisdiction in the suit, the learned trial judge held first at pages 501-502 of the Record of Appeal that:
There is no denying the point competently made by the learned counsel for 1st, 2nd and 3rd Defendants that the

Plaintiffs other than the 2nd Plaintiff, neither disclosed their interest nor the capacity in which they are bringing this action. They are therefore not proper parties in this case. The relevant question however is, whether this argument can be true of the situation regarding 2nd Plaintiff Monday James Nku. Another question is whether the 2nd and only Plaintiff can maintain this action without disclosing the capacity in which he is bringing this action or by not pleading that he is bringing this action in a representative capacity.
The cause of action in this case relates to two tenancy agreements in which the 2nd Plaintiff is a signatory and another in which he is alleged to have been a signatory. It must be noted that there is no dispute on the ownership of the land in dispute. There is no dispute either as to the capacity of the 2nd Plaintiff in the lease agreement he agreed to sign. The 2nd Plaintiff testified that:
“….. the lease was for 99 years and they paid for 20years. The Directors of Grandi Lavori surveyed the land leased out to them and a survey plan was produced. A lease agreement was executed. I signed the memorandum. This is the document”.

PW1 also confirmed that there were five of them who were signatories to Exhibit 1A which he tendered into evidence without objection from the 1st, 2nd and 4th Defendants as Exhibit 1A. The Survey Plan of the subject of the land leased in Exhibit 1A in which the 2nd Plaintiff is mutually described as the lessor and the beneficial owner, he also tendered as Exhibit 1B. His interest therefore as the lessor is and as a party to the lease contract are affected by the action and claims of the 1st and 2nd Defendants in Exhibit 3 that 2nd Plaintiff leased his property to the 1st Defendant. As a consequent of Exhibit 3, 1st Defendant got title to the land he never leased to the 1st Defendant. It is thus my view that even if the action is not or was not disclosed to have been brought in a representative capacity, the case is still sustainable.
Second at pages 502-503 that:
Firstly, there is clear evidence as shown above that the 2nd Plaintiff was a party to the lease contract in Exhibit 1A. Secondly, he has established not just by his evidence but by his signature in Exhibit 1A and the denial of his signature in Exhibit 3 that he

has interest in the subject matter and that his right is affected by the claim of the 1st and 2nd Defendants. Having established these rights, the Court is under a duty to decide his interest as affected in the subject matter in issue. The Court of Appeal held this view in SHARON PAINT AND CHEMICAL COMPANY LTD. V. EZENWAKU (2001) FWLR (Pt. 43) P. 290 @ 317 para F-H when it held;
“But what is decisive of any challenge of an action being in a representative capacity is the element of flexibility that the failure of a Plaintiff to sustain an action in a representative capacity does not render the action incompetent per se as the Court is not precluded from rendering judgment on individual or personal basis rather than on a group basis if that course is dictated by the evidence that emerged at the conclusion of trial.”
See also NTA v. ANIGBO (1972) 5 SC 156, 175-176.
I uphold the objection to jurisdiction in part and overrule the objection in part. I find that the Court is clothed with the competence and the jurisdiction to hear and determine this matter regarding the 2nd Plaintiff and hereby decline jurisdiction to hear the other Plaintiffs in the case.

The learned trial judge held that the 2nd Appellant procured the forgeries of the signatures on Exhibit 3 which he fraudulently used to obtain Exhibit 4.

He entered judgment in favour of the Plaintiff (s) Respondents and granted their claims against the Appellants Defendants.

Finally, the learned trial judge dismissed the Appellants counter claims.

Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing 4 (four) grounds of appeal in this Court on 29/9/2015. The relevant briefs of argument for this appeal are:
1. Amended Appellants brief of Argument of 22/9/2020. It is settled by Chief Assam E. Assam, SAN.
2. 1st – 5th Respondents brief of Argument of 8/10/2020. It is settled by Chinelo A. Ogboke, Esq.
3. Appellants Reply brief of 30/11/2020. It is settled by Chief Assam E. Assam, SAN.

It must be noted that the 6th Respondent, the Attorney-General, Akwa Ibom State was a nominal Plaintiff in the Court below and remains here as a nominal Respondent.

Learned senior counsel for the Appellants nominated 3 (three) issues for determination. They are:

Whether the learned trial judge properly evaluated the case before him when, after having found that the 1st – 5th Respondents as Plaintiffs neither disclosed their interest in the case or the capacity in which they brought the action, he nevertheless found that the Respondent had proved their case and entered judgment in their favour. (Grounds 1 and 2).
II. Whether the learned trial judge applied the correct principles of law and appreciated the evidence before him when he held that the 1st – 5th Respondents proved that the 2nd Appellant forged Exhibit 3, the lease upon which the 2nd Appellant based his title. (Ground 3)
III. Whether the learned trial judge did not misplace the burden of proof when he found that the 2nd Appellant forged or procured the forgery of Exhibit 3. (Ground 4).

Learned counsel for the 1st – 5th Respondents (hereinafter referred to as the Respondents) nominated only 3 (three) issues for the determination of the Appeal. They are:
I. Whether the learned trial judge has the power in law to evaluate evidence as placed before him by parties in the suit. (Grounds 1 & 2).
II. Whether the learned trial

judge applied the correct principles of law and appreciated the evidence before him when he held that the 2nd Appellant forged Exhibit 3 (Ground 3).
III. Whether the learned trial judge misplaced the burden of proof when he found and held that the 2nd Appellant forged or procured the forgery of Exhibit 3 (Ground 4)

On Issue No. 1, learned senior counsel for the Appellants submitted that the 1st – 5th Respondents merely described themselves thus in paragraph 1 of the Further Amended Statement of Claim at page 169 of the Record of Appeal:
The Plaintiffs are the landlords of the land on which the structures built by Grandi Lavori (Nig.) Ltd. stands along Eket/Oron Road, in Uqua village, in Eket Local Government Area.

It was argued that the Appellants had contended that from the evidence before the lower Court, it was crystal clear that the land that the Respondents sued to recover was family land. It was also apparent on the face of the records, pleadings, and from the evidence that the Respondents commenced the action on their individual capacities as Nigerian citizens of Uqua village and certainly not in any

representative capacity nor on the face of the writ the action was commenced to protect personal rights only.

Learned senior counsel for the Appellants referred to the decision of the learned trial judge on this crucial issue of competence/jurisdiction at pages 501-502 of the Record of Appeal and the trial Court’s reliance on the decision of the Court of Appeal in SHARON PAINT AND CHEMICAL COMPANY LTD. V. EZENWAKU (2001) FWLR (Pt. 43290) 290 @ 317 in coming to the conclusion at page 503 of the Record of appeal:
I uphold the objection to jurisdiction in part and overrule the objection in part. I find that the Court is clothed with the competence and jurisdiction to hear and determine this matter regarding the 2nd Plaintiff and hereby decline jurisdiction to hear the other Plaintiffs in the case.

Learned senior counsel for the Appellants submitted that the learned trial judge completely misapprehended the law and facts in arriving at her decision that the 2nd Respondent, who never, on the pleadings and on the evidence, made any personal claim is the owner of the land in dispute. Neither was the action commenced or fought as a personal action of the 2nd Respondent.

Indeed, according to the Appellants, the 2nd Respondent, who testified as PW1 at the trial Court actually testified under cross examination to the effect that:
The land in dispute was not owned by individuals but by the Nku family …. The land in dispute was given to Grandi Lavori as family land, and the persons that signed the lease agreement signed for and on behalf of the family. Of the five persons that signed the lease agreement signed for and on behalf of the family. Of the five persons that signed the lease, there was none that did not own individual land in the area in dispute.

However, that the above piece of evidence was shown not to be true when the witness was confronted with his earlier testimony before another judge who had heard the case earlier where the witness had testified thus:
It is true that the land in dispute was leased to Grandi Lavori by the Plaintiff in their individual capacities.

Learned senior counsel for the Appellants referred to the cases of OFIA v. EJEM (2006) ALL FWLR (324) 1861 @ 1819; IRONBAR v. FEDERAL MORTGAGE FINANCE (2009) ALL FWLR 1549 @ 1551.

It was submitted on behalf of the Appellants that in the case at hand, there is absolutely nowhere in the writ of summons or the pleadings of the Plaintiffs 1st – 5th Respondents that the 2nd Respondent had any personal rights over the land in dispute. That in the absence of any such pleadings, the resort that the learned trial judge had to the documents in evidence to fashion out a tenuos connection between the 2nd Respondent and the land in dispute is erroneous. It is trite law, said the Appellants that pleadings are rock solid foundation on which cases commenced by writ of summons are contested and that a party must swim or sink with his pleadings.

Also, that it is settled law that evidence, whether oral or documentary, on facts not pleaded go to no issue. In the same vein, that which at variance with pleading of a party go to no issue and must be ignored.

On these, Appellants referred to the cases of AKANDE v. ADISA (2012) 15 NWLR (Pt. 1324) 538 @ 574; ADELEKE v. BALOGUN (2000) 4 NWLR (Pt. 651) 113 @ 121-122.

The Appellants further submitted that the case was never contested simply between the 2nd Respondent as Plaintiff and the Appellants. That the

learned trial judge therefore was in grave error when he proceeded to reformulate the collapsed case of the Plaintiffs/1st – 5th Respondents in order to enable him for them.

The Appellants added that it must be borne in mind that the case that was before the learned trial judge is a case for declaration of title to land. That the first duty of the Respondents as Plaintiffs in such an action is to plead and prove the parameters of the land over which he seeks the declaration with exactitude.

After referring on the above to the case of ADELEKE v. BALOGUN (2000) 4 NWLR (Pt. 651) 113 @ 113-127, the Appellants submitted that there was no place that it was pleaded or evidence led that the entire land that was the subject matter of the litigation belonged to the 2nd Respondent at the lower Court, instead, there was an attempt by the Respondents at the lower Court to testify that all the persons who signed the lease agreement said to have been made between the Respondents and Grandi Lavori owned different portions of the land. That being the case, the portion of the land (if any) was uncertain and undefined. It was therefore incongruous and a grave

travesty of justice for the lower Court to have entered judgment with respect to the entire land in dispute in the case where the same Court had found (erroneously we contend) that the 2nd Respondent was the only competent Plaintiff.

Learned senior counsel for the Appellants further submitted that another serious and fatal flaw which arose from the learned judge’s skewed and faulty elevation and appreciation of the case before him is that even after having held that the only competent Plaintiff was the 2nd Respondent before him, he proceeded to consider the entire case of all the Respondents as found in their favour. In this regard, immediately after holding that the 2nd Plaintiff was the only competent Plaintiff before him, the learned trial judge stated thus at page 503 of the Record of Appeal.
The next issue is whether the Plaintiffs (underlining mine) have proved the undated Deed of Lease, Exhibit 3 was not granted by them to the 1st Defendant.
Plaintiffs’ claim against the 1st, 2nd and 4th Defendants is for “A Declaration that the signatories to the purported agreement made by the Plaintiffs and four other persons now

deceased on the 1st part and 1st Defendant on the other part over a piece of land situate at Uqua Eket is false and ipso facto null and void.”

At page 507 of the Record of Appeal, the learned trial judge found as follows:
Another thing that showed that the Plaintiffs did not rent their land to the 1st Defendant is that the so called contiguous parcels of land 2nd Defendant was testifying about here is shown in the survey plan which was dated on 17th December, 1977 attached to Exhibit 3.

Again, at page 510 of the Record of Appeal, the learned trial judge held thus:
I hereby resolve issues 2 and 3 for the Plaintiffs.

These excerpts from the judgment of the lower Court said counsel make it manifestly clear that the lower Court evaluated evidence in favour of non-parties to the litigation and also made findings and entered judgment in favour of those he had positively determined to be non-parties to the litigation.

In the circumstances, said counsel, the decision of the lower Court cannot be allowed to stand, and urged us to so hold and to resolve Issue No. 1 in favour of the Appellants.

In justifying the decision of the

learned trial judge in relation to Issue No. 1, learned counsel for the 1st – 5th Respondents submitted that part of the evidence of the 2nd Respondent who testified as PW1 at pages 444 and 445 of the Record of Appeal went thus:
My name is Monday James Nku. I am a farmer. I live at No. 7 Nku Udo Eno Street, Ukwa Eket. I am the 2nd Plaintiff in this case. I know 1st, 3rd, 4th and 5th Plaintiffs in this case. The 1st Plaintiff is sick. I have heard the name of the 1st Defendant before. I know the 2nd Defendant as an indigene of Eket. I know the 3rd Defendant. I do not know the 4th Defendant, the 4th Defendant only applied to be joined in this case. I knew Grandi Lavori Nig., Ltd. Sometime in 1975, an expatriate called Dr. Pezzine who was a director in Grandi Lavori Nigeria Limited came to our family, Nku family and requested for a land to build a company and residential quarters. Our family agreed to give them the land. The land the company requested for is situate at Uqua along Eket/Oron Road, Eket. The said land was on lease to the company. The lease was for 99 years and they paid the rent for 20 years. The directors of Grandi Laovori surveyed the land

leased out to them and a survey plan was produced.

He submitted that the lease agreement and the survey plan was admitted in evidence as Exhibits 1A and 1B.

Also, that under cross examination at the trial Court, the 2nd Respondent also testified at pages 456 and 457 of the Record of Appeal thus:
My name is Monday James Nku. I concluded my evidence in Chief on the 12/4/2010. I only know the 2nd Defendant in this case as a native of Eket. I do not know the 2nd Defendant as a director in Grandi Lavori Nigeria Ltd. I do not also know whether the 2nd Defendant is a director in both the 1st and 4th Defendant companies. I do not know the 2nd Defendant because we never had any land transaction with him but with Grandi Lavori in which one Dr. Pezzini a director in Grandi Lavori signed the land agreement on behalf of Grandi Lavori. I do not know any other director in Grandi Lavori, except Dr. Pezzini. It is true that during the negotiation for the lease of the land in dispute to Grandi Lavori, Chief E. E. Eneyo was our lawyer while Chief G. A. Ikott was the lawyer for Grandi Lavori. I did not know if Grandi Lavori had any operational problems. The land in

dispute was not owned by individuals but was owned by the Nku family. The land in dispute was given to Grandi Lavori as a family land, and the persons that signed the lease agreement signed for and on behalf of the family.

Learned counsel for the 1st – 5th Respondents then submitted that from the evidence adduced at the lower Court, it is crystal clear that the land that was leased to Grandi Lavori Nigeria Limited and which the 1st and 2nd Appellants claim that same was leased to them was family land. He added that the law is that any member of the family has the capacity to sue to protect the family property.

On the above proposition of law, learned counsel for the 1st – 5th Respondents referred to the cases of ODIMEGWA v. IBEZIN (2019) 9 NWLR (Pt. 1677) 244 @ 260 per Okoro JSC, SAPO v. SUNMONU (2010) ALL FWLR (Pt. 531) 1408 @ 1425.

Learned counsel for the 1st – 5th Respondents submitted that the evidence adduced at the lower Court by the 2nd Respondent and his witnesses showed that the land subject of tenancy in Exhibit 1A was leased out as a family property and when the 1st and 2nd Appellants wrongfully interfered in the 2nd

Respondent’s family property, he sued to stop the interference. The 2nd Respondent, he said, has the power to sue in other to protect his family property.

Learned counsel for the 1st – 5th Respondents contended that the fact that in its judgment the lower Court declined to hear the 1st, 3rd, 5th Respondents for failure to disclose their interest and capacity does not on its own vitiate the suit. This he said is because non-joinder or misjoinder of a party cannot defeat a suit.

He referred on this to the provision of Order 16 Rule (1) of the High Court (Civil Procedure) Rules, 2009 and the cases of BOB v. AKPAN (2010) ALL FWLR (Pt. 501) 896; ANYANWOKO v. OKOYE (2010) ALL FWLR (Pt. 515).

He submitted that there is clear evidence shown on the record of proceedings that the 2nd Respondent who later became the sole Plaintiff, was a party to the lease agreement in Exhibit 1A. That the 2nd Respondent alongside the Plaintiffs disclosed that:
The Plaintiffs are the landlords of the land on which the structures built by Grandi Lavori (Nig.) Ltd. stands along Eket/Oron Road, in Uqua village in Eket Local Government Area.

And that the 2nd Respondent by his signature in Exhibit 1A and the denial of his signature in Exhibit 3 has shown that he has interest in the subject matter in dispute and that his right is affected by the claim of the 1st and 2nd Appellants.

On the submission of the learned senior counsel for the Appellants in paragraphs 36 to 39 of their brief that the learned trial judge after having held that the only competent Plaintiff was the 2nd Plaintiff (Respondent) before him, proceeded to consider the entire case of all the Plaintiffs and found in their favour, Respondents counsel submitted that a community reading of the entire judgment shows that the judgment was given in favour of the 2nd Respondent.

He referred to various passages on pages 504, 509, 510 and 512 of the record of appeal where the learned trial judge referred to the 2nd Respondent as Plaintiff rather than referring to the Respondents as Plaintiffs.

He submitted that reference to “Plaintiffs” rather than “Plaintiff” (that is the 2nd Plaintiff) in the course of judgment by the learned trial judge after he entered judgment in favour of the 2nd Plaintiff (Respondent) was a

mere slip and/or a mistake which does not occasion a miscarriage of justice.

Finally, learned counsel for the 1st – 5th Respondents submitted contrary to the contention of the Appellants that the case before the trial Court was not for declaration of title to land but a tenancy matter and that parties were in agreement as to the ownership of land.

He urged us to resolve the issue in favour of the Respondents.

In his reply brief, learned senior counsel for the Appellants further noted the reliance on the cases of ODIMEGWA v. IBEZIM (2019) 9 NWLR (Pt. 1677) 244 @ 260 and SAPO v. SUNMONU (2010) ALL FWLR (Pt. 531) 1408 @ 1425 by the learned counsel for the Respondent to justify the view that the 2nd Respondent having been declared by the trial Court as being the only Plaintiff to have disclosed interest in the land, he has the right in law to sue for the protection of his interest in the land.

On this, learned senior counsel for the Appellants submitted that while a person can bring an action to protect his personal interest in a land, that interest has to be identified, ascertained, and particularly pleaded in the writ or claim of the party.

After referring on the above to the cases of AIYEOLA v. PEDRO (2014) LPELR – 22915 (SC) and OWHONDA v. EKPECHI (2003) LPELR – 2844 (SC), Appellants counsel submitted further that the 1st – 5th Respondents as Plaintiffs were consistent in their claim that they are landlords of the property, and it was not whether or not the capacity in which they brought the action was one of family or whether each have individual interest in the land and if so, identify same.

This, according to the Appellants was further complicated by the 2nd Respondent’s testimony where he stated that “….. of the five persons that signed the lease, there was none that did not own individual land in the area in dispute.”

The gamut of the above testimony according to Appellants is that if all the signatories of the lease agreement had individual interests in the land for which the 2nd Respondent was declared to be the only one in the suit to have disclosed his interest in the land in dispute, then same having not been identified and alienated in the pleadings to show which part of the said land or parameter of the said land for

which he is claiming, there was no basis to give judgment in favour of the 2nd Respondent.

Learned senior counsel for the Appellants referred to the cases of AKANDE v. ADISA (2012) 15 NWLR (Pt. 1324) 538 @ 574; OHOCHUKWU v. A. G., RIVERS STATE (2012) 6 NWLR (Pt. 1295) 59 and reiterated that the law is trite that pleadings is the foundation upon which cases are built and that any evidence led which does not support the pleadings goes to no issue.

The Appellants submitted that the cases of ODIMEGWA v. IBEZIM (supra) and SAPO v. SUNMONU (supra) do not apply in the circumstance as the 2nd Respondent never in his pleading identified which portion of the land he owned, to warrant the judgment in his favour as to his own interest which he allegedly seeks to protect.

They (Appellants) added that the Court, in entering judgment in respect of the whole land was in grave error, as there was never in the pleadings or evidence adduced where it was established that the 2nd Respondent owned all of the land or had interest in all of the land in dispute.

On the contention of the Respondents that it was a slip or mistake for the learned trial judge to have

entered judgment in favour of the 1st – 5th Respondents after declaring that the 1st, 3rd 4th and 5th Respondents did not have interest in the said land, Appellants counsel submitted that it is unknown to law where a party would amend the Court’s judgment all by himself without properly filing an application, an appeal/cross-appeal.

Learned senior counsel for the Appellants referred to the case ofSTIRLING CIVIL ENGINEERING (NIG.) LTD. v. YAHAYA (2005) LPELR– 3118 (SC) and submitted that the decision of the Court is fundamental and cannot be termed a slip or clerical mistake.

On issue 1, the Appellants concluded that the learned trial judge failed to properly evaluate the evidence before him when having found that the 1st, 3rd, 4th and 5th Respondents as Plaintiffs neither disclosed their interest in the case or capacity in which they brought the action, he nevertheless found that the Respondents had proved their case and entered judgment in their favour.

A good starting point for the discussion of Appellants issue 1 is the recognition of the fact which ran through the evidence of the 2nd Respondent and reiterated in the

Respondent’s brief of Argument in this appeal that the land in dispute is owned by the Nku family. This is notwithstanding the very revealing and material contradiction offered by the same 2nd Respondent as PW1 in cross-examination first that:
“… of the five persons that signed the lease, there was none that did not own individual land in the area in dispute.”
Second that:
“… it is true that the land in dispute was leased to Grandi Lavori by the Plaintiff in their individual capacities.”
It is still pertinent to start off the discussion on the premise as stated by the 2nd Respondent as PW1 that the land is owned by the Nku family. With the above background there are two or perhaps three possibilities that are open to the Respondents when the question of capacity to sue or the need to show sufficient interest in the subject matter of the suit arose.
The first is that the family could have sued as an entity and identify itself as such as Nku family with all other description of particulars and details.
The second is that the family could have brought a representative action, in which case named

members of the family would have instituted the suit for and on behalf of the family.
The third which is properly covered by the cases of ODIMEGWA v. IBEZIM (2019) 9 NWLR (Pt. 1677) 244 @ 260 and SAPO v. SUNMONU (2010) ALL FWLR (Pt. 531) 1408 @ 1425 relied on by the learned counsel for the Respondents in this appeal is the capacity of any member of a family to protect or defend family property or his own interest in it.
It is noteworthy that the 2nd Respondent did not establish by pleading and or evidence that his capacity to institute the action on appeal fall within any of the above categories.
In the first place and as clearly pointed out by the learned senior counsel for the Appellants, there is nowhere in the pleadings or evidence in the suit where the Respondents stated that they are members of the Nku family or that any of them including the 2nd Respondent is a member of the Nku family.
For this reason, there is no justification whatsoever for the learned trial judge to have held as he did at pages 502 -503 of the record of appeal that:
“Firstly, there is clear evidence as shown above that the 2nd Plaintiff was a party to

the lease contract in Exhibit 1A.
Secondly, he has established not just by his evidence but by his signature in Exhibit 1A and the denial of his signature in Exhibit 3 that he has an interest in the subject matter and that his right is affected by the claim of the 1st and 2nd Defendants. Having established these rights, the Court is under a duty to decide his interest as affected in subject matter in issue…”
After referring to the cases of SHARON PAINT AND CHEMICAL COMPANY LTD. v. EZENWAKU (2001) FWLR (Pt. 43) 290 @ 317 and NTA v. ANIGBO (1972) 5 SC 156, 175 -176 for the proposition that:
“… the Court is not precluded from rendering judgment on individual or personal basis rather than on a group basis if that course is dictated by the evidence that emerged at the conclusion of trial.”
The learned trial judge came to the conclusion on the issue that:
“I uphold the objection to jurisdiction in part and overrule the objection in part. I find that the Court is clothed with the competence and the jurisdiction to hear and determine this matter regarding the 2nd Plaintiff and hereby decline jurisdiction to hear the other Plaintiffs in the case.”

In the first place, by the above decision, the learned trial judge misapplied the decisions in SHARON PAINT AND CHEMICAL COMPANY LTD. v. EZENWAKU (supra) and NTA v. ANIGBO (supra) and misapprehended the law and the facts in arriving at his decision that the 2nd Respondent, who never, on the pleadings and a fortiori the evidence, made any personal claim he is the owner of the land in dispute. Neither was the action commenced or fought as a personal action of the 2nd Respondent.
Interestingly, but still on the same point of capacity to sue, the pleadings of the Respondent did not anywhere or for once disclose any of the Respondents/Plaintiffs including the 2nd Respondent as a member of the Nku family. Also, the 2nd Respondent never pleaded that he is taking steps to protect or defend family property or his own interest in Nku family property. In fact, the pleadings of the Respondents did not represent the 2nd Respondent or any other Respondent/Plaintiff shown on the Writ of Summons and Statement of Claim as a member or members of the Nku family.
Again, beyond the unpleaded statement of the 2nd Respondent in

evidence that the land is owned by Nku family the only description of the capacity to sue of the Respondents/Plaintiffs in the entire further amended statement of claim of 10th June, 2008 according to paragraph 1 of the said pleadings that:
“The Plaintiffs are the landlords of the land on which the structures built by Grandi Lavori (Nig.) Ltd stands along Eket/Oron road, in Uqua village in Eket Local Government Area.”
The above pleadings by the Respondents/Plaintiffs presents a joint action or suit by Plaintiffs not being a representative action and without disclosing the relationship if any amongst the Plaintiffs/Respondents inter se and without any pleadings and/or explanation on the common interest of the Respondents in the subject matter of the suit.
In this circumstance, the learned senior counsel for the Appellants was right to have insisted that by this decision, the learned trial judge had erroneously determined the 2nd Respondent’s capacity to sue by relying on unpleaded facts. Appellant’s counsel relied on the cases ofAKANDE v. ADISA (2012) 15 NWLR (Pt. 1324) 538 and OHOCHUKWU v. AG, RIVERS STATE (2012) 6 NWLR (Pt. 1295) 59.

Indeed, there was no pleading or evidence led to support the proposition that the land, the subject matter of litigation belonged to the 2nd Respondent/Plaintiff. Rather, there was an attempt by the Respondents/Plaintiffs testify that all the persons who signed the lease agreement said to have been made between the Plaintiffs and Grandi Lavori owned different portions or individual portions of land.
The incongruity, that arose in the decision of the learned trial judge was to have granted the entire land in dispute to the 2nd Respondent who at different times in the course of evidence claimed without any supporting pleading that the land is owned by Nku family and/or that the Respondents/Plaintiffs have individual portions within the land, the subject matter of the suit.
In the case of OFIA v. EJEM (2006) ALL FWLR (324) 1861 @ 1819, the Supreme Court held thus:
“That apart, the fact that each village owns its own portion of the land in dispute shows clearly that the Appellants do not have a common interest in the land, particularly as each village cannot deal with the land owned by another villages. I therefore agree with

the Court of Appeal that this is a proper case in which the Appellants could have brought separate action against the Respondents in respect of their respective portions of land alleged trespassed unto. In the case of ORAGBAIDE v. ONITIJU (supra) at page 37, this Court stated the law as follows:- ‘On the evidence adduced for the Plaintiff, it was plain that he and others claimed to each have an individual farm of his own within the area in dispute, which means that Iferedo community as a whole, cannot claim the entire area as a communal land.”
Furthermore, in IRONBAR v. FEDERAL MORTGAGE FINANCE (2009) ALL FWLR 1549 @ 1551, the Court of Appeal held thus:
“The endorsement of the writ of summons must show the capacity in which the Plaintiff is claiming, whether as a creditor, an administrator, a legatee, a next of kin, heir at law, a successor under customary law, a devisee, etc. in the instant case, the Appellant endorsed his name both on the writ of summons and the statement of claim as “(Chief Orok I. Ironbar (suing as next of kin and/or representative of late Chief Orok Ita Orok))” without an averment that he was either

his father, Chief Orok Ita Orok or whether his father died interstate and he became a successor in customary law to the property in dispute. There was also no averment that he obtained letters of administration to administer his father’s estate or was appointed a legal representative of same. It is not for the Court to search through the pleadings to determine in what capacity the Appellant is suing.”
The case of EKPERE & ORS v. AFORIJE & ORS (1972) 1 ALL NLR (Pt. 1) 220 concerns the Jesse clan composed of the Mosogan – village community, the Jesse village community and Onyobru community. The Plaintiffs/Respondents, of Mosogan village community, sued the Defendants/Appellants of Onyobru village for a declaration that a parcel of land at Efo and Ukpekele (Mosogan) and rented in a deed of lease dated 26th September, 1953 and registered as 7th July, 1942 of Lands Registry Ibadan (now Benin City) was their exclusive property, not that of the Jesse clan community, a declaration that the purported assignment of the lease of the fifth Defendant was null and void and for the rectification and/or cancellation of the lease.

The learned trial Judge, Rhodes – Vivour J., awarded judgment to the Respondents for the three claims. The Appellants’ appeal to the Supreme Court was allowed. Lewis JSC, delivering the judgment of the Court held that the individual interests of the separate communities of Jesse clan were not necessarily the interests of the Jesse clan as an entity so that the Respondents action was not properly constituted unless the clan itself, Jesse, was made a Defendant through his representatives.
See also ONWUNALU & 2 ORS v. OSADEME (1971) 1 ALL NLR 14; AMUDA v. AJOBO (1995) 7 NWLR (Pt. 406) 170; AKHIGBE v. PAULOSA (2006) 12 NWLR (Pt. 994) 373.
The Courts seem to have consolidated the state of the law that lack of proper parties casts a slur on the jurisdiction of the Court and that for a person to bring an action in respect of any subject matter, such a person must show that he has a legal right or special interest in that subject matter.
See AKINNUBI v. AKINNUBI (1997) 2 NWLR (Pt. 486) 144; GUDA v. KITTA (1999) 12 NWLR (Pt. 629) 21 CA; PLATEAU STATE v. A. G. FED. (2006) 3 NWLR (Pt. 967) 346.

Indeed, where a Plaintiff lacks the capacity to sue and/or when such capacity is not demonstrated by pleadings, the suit becomes incompetent, and the Court lacks the jurisdiction to entertain it.
See EJIKEME v. AMAECHI (1998) 3 NWLR (Pt. 542) 456 CA; OGUNMOKUN v. MIL. ADM. OSUN STATE (1999) 3 NWLR (Pt. 594) 261 CA; AYOOLA v. BARUWA (1999) 11 NWLR (Pt. 628) 595.
In the instant case, the learned trial judge was in error to have held that the 2nd Respondent could maintain the action to protect his personal interest in the land when his interest was not pleaded, identified and ascertained in the writ of summons, statement of claim and even in legally admissible evidence in the trial Court. It only remains to say that where a suit is not properly constituted, as in this case, the Court does not have the jurisdiction to entertain the suit.
In OFIA v. EJEM (2006) ALL FWLR (supra) at page 1817 and more particularly at page 1824, the Supreme Court held:
“Where an action is not properly constituted, it robs the Court of jurisdiction to entertain the same. A complaint about the competence and proper Constitution of an action raises the issue of jurisdiction of the trial Court and

ought to be decided first since judgment delivered in an action outside the jurisdiction of the Court amounts to a nullity irrespective of how well the proceeding was conducted….
In the present case, the Appellants who were granted leave to sue in a representative capacity did not make out a case in which the action was instituted.”
In the instant case, the 2nd Respondent/Plaintiff lacked the capacity to sue and without any demonstrable interest in the subject matter of the suit and therefore the Respondents/Plaintiffs suit was not properly constituted.
Issue No. 1 is resolved in favour of the Appellants.

Appellants Issue No. 1 in this appeal, being a critical issue of jurisdiction has turned out to be a determinant issue for this appeal. For this reason, I do not find it necessary to determine any other issue(s) in the appeal.
This appeal is meritorious and it succeeds.

The judgment and orders of Hounourable Justice Theresa I. Obot sitting at the High Court of Akwa Ibom State delivered on 30th day of June, 2015 in Suit No. HEK/2/88 are a nullity and accordingly set aside.
Suit No. HEK/2/88 is struck out.
Parties to this appeal are to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA and I agree that the Court below erred when it held that the 2nd Respondent could maintain the action when his interest in the land was not pleaded. In the circumstances, I too allow the appeal and strike out the action Suit. No. HEK/2/88.
I abide by all the orders including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of previewing the judgment of my learned brother Mojeed A. Owoade, JCA. I am in agreement with the reasoning therein and conclusion arrived at. Where a plaintiff lacks the capacity to sue or when such capacity is not demonstrated by the pleadings as in the instant case, the suit becomes incompetent and the Court lack the requisite jurisdiction entertain the suit.

I too allow the appeal and set aside the judgment of the lower Court.

Appearances:

CHIEF ASSAM E. ASSAM (SAN) with him, ASSAM ASSAM Jnr. For Appellant(s)

CHINELO OGBOKE, Esq. For Respondent(s)