IBHE & ORS v. ORU & ORS
(2022)LCN/16817(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, June 30, 2022
CA/PH/65/2019
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Between
1. CHIEF DAVID IBHE 2. CHIEF AKINYA IKURU 3. PASTOR ISAIAH IKURU 4. MR. OPAMINOLA SAMUEL IBHEMARO IBHE 5. MR. BENJAMIN IBHE 6. MR. MENIAKPARA EDUM IBHE 7. MR. RAPHAEL IKIO (For Themselves And On Behalf Of The Members Of Ibhe Family, Otuoke, In Ogbia Local Government Area Of Bayelsa State) APPELANT(S)
And
1. CHIEF AZIBOLA ORU 2. MR. INETIMI ORU 3. CHIEF AARON ORU 4. MAR. LAMABHI OKPUTU 5. MR. BRIGHT ORU 6. CHIEF EBAIMANOLOGI AGALA 7. MR. MOSES OTUMA 8. H.R.H. AKPUTU OGORI (XII) (For Themselves And As Representing The Entire Members Of The Emebuma Family, Otuoke In Ogbia Local Government Area Of Bayelsa State) Excluding Alhaji Kaashim Oru) RESPONDENT(S)
RATIO
WHETHER OR NOT A PERSON CAN SUE ON BEHALF OF HIS FAMILY IN AN ACTION FOR DECLARATION OF TITLE TO LAND
Indeed, the law is that a person has the right to protect his family interest in or title to and can sue for himself and on behalf of the family in a representative capacity. See SOGUNLE Vs. AKERELE (1967) NMLR 58, NTA Vs. ANIGBO (1972) 5 S.C 156, MELIFONWU Vs. EGBUJI (1982) 9 S.C. 145, ATANDA Vs. OLANREWAJU [1988] 4 NWLR (Pt. 89) 394. In this case, the Respondents as claimants have exercised the right to protect their family interest in the disputed lands, by bring the action leading to the present appeal. There must be proof of substantial opposition in order to deprive them of their representative capacity. The Respondents’ right to bring the suit against Appellants as members of the Emebuma Family to defend and protect what they claim as Family land cannot be questioned. That point has long been settled in SOGUNLE Vs. AKERELE (supra) and religiously followed by a long line of cases to the effect that not just principal members of a family or community but every member of a family/community has proprietary interest in family/community land and so under a duty to protect it and consequently a standing to institute action in respect of any wrong or threat to such property. According to ONYEAMA, JSC in SOGUNLE Vs. AKERELE (supra) p. 60: “(t)here is authority for the view that a member of a family may take steps to protect family property or his interest in it, if he has not the authority of the family to bring the action the family would, of course, not be bound by the result, unless for some reason the family was estopped from denying that the action was binding.” PER KOLAWOLE, J.CA.
WHETHER OR NOT THE CAPACITY TO BRING A REPRESENTATIVE ACTION TO PROTECT FAMILY OR COMMUNAL INTEREST IS EQUATED WITH THE CAPACITY TO DIVEST INTEREST IN FAMILY OR COMMUNAL PROPERTY
The statement of law handed down by the Supreme Court in LAYINKA Vs. GEGELE [1993] 3 NWLR (Pt. 283) 518 at 530, to the effect that capacity to bring a representative action to protect family or communal interest should not be equated with capacity to divest interest in family or communal property. His Lordship, KARIBI-WHYTE, JSC stated the principle thus:
“I think the proposition that the validity of sale of land on behalf of the family can only be by the head of the family and the principal members, or voidable only by the principal members alone. See Ekpendu v. Erika (1959) SCNLR 186 cannot be extended to the challenge of actions against the interest of the family. See Sogunle v. Akerele (1967) NMLR 58. …. Every member of the family has an interest in family property and is under a duty to protect such property. There is therefore a locus standi to institute an action in respect of wrong done to such a property.”
Similar reasoning was expressed by the apex Court in SAPO Vs. SUNMONU [2010] ALL FWLR (Pt. 531) 1408) 1425, where OGBUAGU, JSC held that:
“A head of family can take action to protect family property or defend an action in respect of family property, even without the prior authority of other members of the family. So also any member of the family may take steps to protect family property or his own interest in it.” (Emphasis mine). The trial judge was therefore under a duty to entertain and decide on the merits late Owolabi’s action to defend his community land and enter judgment at least in his personal capacity. That is where the submission of Mr. Oji that the rules of Court on representation are not rigid becomes relevant.” PER KOLAWOLE, J.CA.
THE CONDITION THAT MUST BE FULFILLED FOR A SUIT TO DISCLOSE A REASONABLE CAUSE OF ACTION
The position of the law is very clear that for a suit to disclose a reasonable cause of action, the claimant’s statement of claim must set out the legal rights of the claimant and the obligations of the Defendant. It must then go on to set out facts constituting the breach or infraction of the plaintiff’s legal rights or failure of the defendant to fulfill its obligations in such a way that if there is no proper defence, the Plaintiff will succeed. See RINCO CONSTRUCTION COMPANY LIMITED Vs. VEEPEE INDUSTRIES LTD. & ANOR (2005) LPELR – 2949 (SC). PER KOLAWOLE, J.CA.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Bayelsa State, Ogbia Judicial Division, delivered on 30th October, 2018 coram the Honourable Justice Raphael Ajuwa.
The Appellants had filed a notice of preliminary objection challenging the competence of the lower Court to hear and determine the suit inter alia on the grounds that (i) the Respondents lacked the requisite locus standi to sue in a representative capacity as the head and principal members of the Emebuma family since there is an elected head and principal members of the family; (ii) the Respondents’ pleadings did “not disclose an all-encompassing allegation of wrongful act(s) against the Appellants”; and (iii) the Respondents’ statement of claim do not plead the necessary facts to support the grant of any of the reliefs sought.
In its ruling, the trial Court dismissed the preliminary objection in its entirety, holding that it possesses the necessary competence to adjudicate the dispute. Dissatisfied with the decision, the Appellants invoked the appellate jurisdiction of this Court vide a notice of appeal dated 12th November, 2018. Both parties thereafter filed and exchanged their respective briefs of argument.
In the Appellants’ brief of argument dated 8th February, 2019 and prepared by Fedube Zimughan, Esq; Inemo Oruebimiekumo, Esq., and O. I. Derik-Ferdinand, Esq., four issues were formulated for determination as follows:
1. Whether the trial Court’s failure to deliver its decision within the mandatory constitutional period of ninety (90) days has not occasioned miscarriage of justice and therefore a nullity?
2. Whether the trial Court’s decision on issues raised suo motu without been heard from the parties is not perverse and ought to be set aside for occasioning miscarriage of justice?
3. Whether the trial Court was right when it held that the Respondents’ statement of claim disclosed a reasonable cause of action against the Appellants?
4. Whether this Honourable Court has the legal competence to determine an issue that was wrongly ignored determination by the trial Court despite its proper presentation and argument canvassed thereon before it?
In the Respondents’ Brief of Argument dated 25th May, 2019 and filed 27th May, 2019 but was deemed 22nd May, 2022 and settled by Delime Julius, Esq., Barry Amos Ayibapretei, Esq., and Ameri Ifiemi, Esq., four issues were also formulated for determination and they read thus:
1. Whether the trial Court’s failure to deliver its decision/ruling within the constitutionally prescribed period of ninety (90) days has not occasioned miscarriage of justice and therefore same will not render the decision valid?
2. Whether the trial Court was not right when it held that the Appellants, not being members of the Emebuma Family the Respondents purport to represent cannot challenge the locus standi of the Respondents to sue on behalf of the Emebuma family, and therefore same has occasioned miscarriage of justice?
3. Whether the trial Court was not right when it held that the Respondent’s statement of claim disclosed a reasonable cause of action against the Appellants?
4. Whether the trial Court breached the fair hearing right of the Appellants by its failure and/or refusal to consider all the issues brought before it for adjudication as contained in the processes filed by the Appellants?
Having carefully considered the grounds contained in the notice of appeal, the issues formulated by the respective parties in this appeal, the arguments canvassed by the counsel, as well as the ruling of the lower Court, I am of the respectful view that the issues nominated by the Appellants are apt for the determination of the appeal. It is to this extent, the Appellants’ submissions at paragraphs 1.01 to 1.09 of the reply brief dated and filed on 9th April, 2019, and touching on the competence of the issues formulated by the Respondents on the ground that they do not relate to the complaints in the grounds of appeal, is of no moment. A fortiori, it is obvious that the arguments canvassed by the Respondents’ Counsel on each of the said issues are directly in response to the submissions made by the Appellants in their brief of argument.
I shall therefore waste no more judicial time on the said challenge to the competence of the issues raised by the Respondents.
ISSUE ONE
The summation of the Appellants’ argument under this issue is that the learned trial Judge delivered the ruling being appealed against after about two hundred and seventy days (nine months) after arguments were made before the Court. It is the contention of counsel that this is contrary to the provision of Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”). Appellants’ counsel noted that the trial Court completely lost grip, mastery and control of the facts, evidence and circumstances of the case presented before it, and relied on extraneous issues that were never canvassed by neither of the parties. This, the Appellants’ counsel argued, has occasioned miscarriage of justice against the Appellants and the decision should be treated as a nullity in line with Section 294 (5) of the Constitution. The decision in the cases of THE STATE Vs. OLADIMEJI [2003] 14 NWLR (Pt. 839) 57 SC, H.D.P. Vs. OBI [2011] 18 NWLR (Pt. 1278) 80 SC, paras G – H, UGBOJI Vs. THE STATE [2018] 10 NWLR (Pt. 1627) 346 SC, paras 380 – 381, paras F – A, COCACOLA (NIG) LIMITED Vs. AKINSANYA [2017] 17 NWLR (Pt. 1593) 74 SC, paras 126 – 127, paras H – A, UMAR Vs. GEIDAM [2019] 1 NWLR (Pt. 1652) 29 SC, paras B – C, ODIBA Vs. AZEGE [1998] 9 NWLR (Pt. 566) 370 SC, paras D – E, OWOYEMI Vs. ADEKOYA [2003] 18 NWLR (Pt. 852) 307 SC at 340 were relied upon by the Appellants’ Counsel in support of the arguments canvassed under this issue.
On the part of the Respondents, it was argued that the trial Court’s failure to deliver its decision within the constitutionally prescribed period of 90 days has not occasioned miscarriage of justice, and therefore cannot be set aside for being nullity. The decisions in the cases of EMMANUEL ATUNGWU & ANOR Vs. ADA OCHEKWE (2013) LPELR – 20935 (SC), DENNIS AKOMA & ANOR Vs. OBI OSENWOKWU & ORS (2014) LPELR – 22885 (SC). The Respondents’ counsel argued that the Appellants have not been able to demonstrate that the non-compliance with the provision of Section 294 (1) of the 1999 Constitution by the trial Court affected the perception, appreciation and evaluation of the evidence, in view of the facts that the case was decided purely on documentary evidence. The learned Counsel further argued that the Appellant grossly misconstrued the facts, issues and circumstances which made the trial Court arrived at its decision. It is the submission of counsel that the trial Court rightly stated that going by the capacity the Appellants have been sued as endorsed on the originating process, it is clear that the Appellants are not members of the Emebuma Family which the Respondents represents, and therefore the Appellants cannot challenge the Respondents’ representative capacity. Learned counsel submits that in line with the dictate of the law, the trial Court properly considered and evaluated the writ of summons and statement of claim before arriving at its decision. Counsel noted that the decision of the trial Court was predicated on the fact that the issue of the status of the Respondents as heads and principal members of the Emebuma family are in dispute between Alhaji Kashim and the Respondents in Suit No. OHC/20/2014 – Exhibit CPL5. Consequently, the Court took judicial notice of the fact that since the said Alhaji Kashim is not a party to the suit, the issue cannot be determined in this case.
The summary of the Appellants’ argument in their Reply Brief is that the reasoning, deductions and conclusions made by the trial Court that the Appellants admitted in their affidavit in support that the Respondents are members of Emebuma Family and therefore cannot challenge the capacity of the Respondents cannot be predicated upon any of the averments contained in the Respondents’ Statement of Claim and thus, not based on the evidence adduced by the parties. The Respondents learned Counsel then argued that this issue should be resolved in the Appellants’ favour.
RESOLUTION
Indeed, by Section 294 (1) of the Constitution on which this issue rests, “every Court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. However, by Section 294 (5) of the said Constitution, it is provided that: “the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of the Section, unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
In view of the above provision, it is obvious that the delay in delivery by a Court in the delivery of its decision does not per se result in the said decision being automatically vitiated. As the learned Respondents’ Counsel rightly posited, such a delay must be such that has occasioned a miscarriage of justice to result in the setting aside of the decision on appeal. In the instant case, it is not in dispute that the ruling of the trial Court being appealed against had been delivered about 270 days (9 months) after arguments were taken on the preliminary objection, in contravention of Section 294(1) of the Constitution. However, it is instructive that the ruling was delivered in respect of a notice of preliminary objection, in respect of which several supporting affidavits and counter-affidavits as well as written addresses were filed by the respective parties and considered by the trial Court.
Based on the state of the law, it has to be established that the delay occasioned a miscarriage of justice in that the trial Judge did not take a proper advantage of having seen or heard the witnesses testify or that he had lost his impressions of the trial due to such inordinate delay. See AKOMA & ANOR Vs. OSENWOKWU & ORS [2014] 11 NWLR (Pt. 1419) 462. It is beyond dispute that all that the learned trial Judge considered in his ruling at the lower Court are documentary processes, i.e the affidavits filed and the accompanying annexure. The question that readily comes to mind is: how could the delay in the delivery of the ruling have caused miscarriage of justice when despite the delay in handing down the ruling, the documents including the written addresses filed were still there for the learned trial Judge to read and refresh his memory at the relevant time from the moment the arguments were taken up to about nine months thereafter when the ruling was delivered. I must say that the fact that an adverse decision was handed down against a party cannot automatically lead to an inference that the said decision is perverse. It seems to me in this case that the Appellants’ complaint under this issue is premised on the adverse findings and conclusions made by the learned trial Judge in relation to the issues submitted before it. It has not been clearly shown that facts were not correctly recalled and analysed, and this cannot be the situation in this case where there was no plenary trial by a viva voce hearing of witnesses but the ruling delivered was based on a preliminary objection fought on the basis of affidavit and documentary evidence. It is my view that the learned trial Judge cannot be said to have lost touch with the case or that his perception and evaluation of the issues simply due to the delay in handing down the ruling. In a considered judgment of this Court in CA/PH/317/2020: HON EMMANUEL UCHE OGBUAGU V. H.R. EZE EKE OGEDI GEORGE delivered on 31st March, 2022 by my learned brother, Ridwan Maiwada Abdullahi, JCA, in my contribution, I expressed the view that:
”Let me just make a little additions garnered by a coalition of my modest understanding and thoughts on extant decisions on this area of our constitutional law by saying that by the provision of Section 294(1) & (5) of the Constitution, 1999 as amended, it is not the law that once a judgment was not delivered within the 90 day period prescribed by the Constitution, such judgment ipso facto, perhaps almost automatically and invariably will be set aside on appeal. Having regard to considered decisions of the apex Court on the application and implication of judgments not rendered within the 90 day period after the conclusion of hearing, the appellate Courts invited to review such Judgments must be persuaded by the party complaining about the delay, that the delay in delivering the Judgment outside the 90 day period has occasioned him a miscarriage of justice that cannot be overlooked or brushed aside as if it’s a non-issue, it must be substantial.
Let me state clearly lest, I may be misunderstood and for the avoidance of any doubt, that the judicial position in this regard, was never intended to encourage instances on the part of Judges and Justices in terms of getting Courts reserved Judgments delayed, but it’s decision taken in my view by a practical recognition of basic facts and realities of life and of our peculiar environment, when there may arise compelling occasion when a Judge for good reasons not borne out of act of sheer indolence may miss out the delivery of his decision within the prescribed period, for instance, ill health of the Judge, incident of bereavement, other compelling judicial official assignments that necessarily take the Judge out of his station or even out of the country or even, sometimes, unexpected corruption of the computer system by virus on which the draft judgment was prepared are possibly a few of the legitimate reasons which are not exhaustive, that may occasion such delay as provided in the Constitution and this possibly may have explained in my view, why the drafters of the Constitution, had by the provision of Section 294(6) thereof further provides that the concerned judicial officer “as soon as possible after hearing and deciding any case in which it has been determined that there was non-compliance with the provisions of Subsection (1) of this Section, the persons presiding at the sitting of the Court shall send a report in the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit”. What action or decision the council may take is in my view, part of the overall powers of the council as stated in Section 21 of the Third Schedule, Part 1 of the Constitution, 1999 As Amended. This provision, in my view, constitutes a subtle “yellow amber light” warning intended to serve as a deterrence to habitual incidents by judicial officers of “every Court established under this Constitution” that delaying delivery of judgments outside the 90 day period stipulated by Section 294(1) of the Constitution As Amended will be unacceptable and had deliberately, perhaps consciously used the word “shall” in order to convey the mandatory need to file such a report with the Chairman of the National Judicial Council who incidentally is the Chief Justice of Nigeria. The Appellant who has raised the issue of the delay in delivering of the Judgment under review, is required to demonstrate in real terms and by facts that are borne out of the record of appeal, how the delay has occasioned him a miscarriage of justice in order to necessitate a compelling need by the appellate Courts to set aside the said Judgment. Let me add that judgments of a superior Court of record are solemn decisions taken after so much efforts and resources have been expended by the parties and the Courts in reaching the said decisions, and should not be so casually set aside on application by a party who has lost the case on account that the delivery of the Judgment was delayed beyond the period of 90 days prescribed by Section 294(1) of the Constitution, 1999 As Amended. The rationale for this proposition being that Judgment of every superior Court of record is by the provisions of Sections 168(1) & (2) and 173 of the Evidence Act, 2011 presumed to be regular and correct (See the Court of Appeal’s decision in ACHU V. C.S.C. CROSS RIVER STATE (2009) 3 NWLR (Pt. 1129) 480 and invariably the legal concept of void or voidable decision as known in Administrative Law, which is applicable to decisions of administrative bodies and inferior Tribunals (See Lord Radcliffe’s seminal decision in SMITH V. EAST ELLOE RURAL DISTRICT COUNCIL (1956) A. C. 736) will not be applicable to judgments of Courts created and established pursuant to the provisions of the Constitution, 1999 As Amended because, such Judgment do not as it were, “bear a brand of invalidity upon its forehead” to make it ex facie invalid and unenforceable. See the Supreme Court’s decisions in IZEZE V. INEC (2018) 11 NWLR (Pt. 1629) 110 and in ROSSEK V. ACB Ltd. (1993) 8 NWLR (312) 382.” On the basis of this reasoning, I am unable to accede to the Appellants’ contention that they have suffered miscarriage of justice as a result of the said delay, thereby rendering the ruling delivered out of the 90 days as prescribed by the Constitution as a nullity and liable to be set aside. On the main, this issue is resolved against the Appellants.
ISSUE TWO
Learned Appellants’ counsel submits that the lower Court suo motu raised the issues that (a) the Appellants are not members of the Respondents’ family, to wit, Emebuma Family, (b) that Alhaji (Dr.) Kashim Oru is not a party to the litigation, (c) that the Appellants stated categorically that they are members of the Ibhe family and have admitted that the land in dispute belongs to the Emebuma’s family. The Appellants’ Counsel argued that there is no evidence on record to justify the lower Court’s reasoning and the conclusion reached, hence the decision is perverse in the absence of prior hearing and evidence led by the parties on the said issues. Appellants’ Counsel relied on the decisions in KRAUS THOMPSON ORGANISATION LIMITED Vs. UNIVERSITY OF CALABAR [2004] 9 NWLR (Pt. 879) 631 SC, MENAKAYA Vs. MENAKAYA [2001] 16 NWLR (Pt. 738) 203 SC, THE STATE Vs. OLADIMEJI (supra), OMONIYI Vs. ALABI [2015] 6 NWLR (Pt. 1456) 572 SC, C.K. & W.M.C. LIMITED Vs. AKINGBADE [2016] 14 NWLR (Pt. 1533) 487 SC, KUTI Vs. BALOGUN (1976) 1 SC 53 at 60, OBAWALE Vs. WILLIAMS [1996] 10 NWLR (Pt. 477) 146 SC, STIRLING CIVIL ENGR. NIG. LIMITED Vs. YAHAYA [2005] 11 NWLR (Pt. 935] 181 SC, OMOKUWAJO Vs. FRN [2013] 9 NWLR (Pt. 1359] 300 SC.
It is the submission of the Appellants’ counsel that the evidence adduced by the Appellants was that they are all members of the Ibhe unit of Emebuma family, referring paragraph 1 of the affidavit in support of preliminary objection at pages 124 – 125 of the record of appeal. Rather, the Respondents admitted and corroborated this fact in paragraphs 4 (1) and 4 (e) of the counter-affidavit and further counter-affidavit. He cited the decisions in the cases of DIKE Vs. THE STATE [2018] 13 NWLR (Pt. 1635) 35 SC, SKYE BANK PLC Vs. AKINPELU [2010] ALL FWLR (Pt. 526) 460 SC, NZERIBE v. DAVE ENGR. CO. LIMITED [1994] 8 NWLR (Pt. 361) 124 SC on the position of the law is that fact admitted requires no further proof. It is the further submission of Counsel that if the trial Court had considered Exhibits CLP1 to CLP5 annexed to the Appellants’ affidavit in support, its decision would have been tilted in favour of the Appellants, citing OLOWU Vs. BUILDING STOCK LIMITED [2018] 1 NWLR (Pt. 1601) 343 SC. The Appellants’ Counsel submits that the said Exhibits CLP1 to CLP5, which showed how the head and principal members of Emebuma family were selected, were not controverted by the Respondents and can only be challenged by documentary evidence. According to counsel, the trial Court is bound to act on the unchallenged evidence in the Appellants’ affidavit in support and Exhibits CLP1 to CLP5, relying on the decision in the case of OMOREGBE Vs. LAWANI (1980) 3 – 4 SC 70.
The Appellants’ Counsel maintained that the evidence before the Court established that the Respondents are not the head and principal members of the Emebuma family, and therefore lacked the locus standi to sue as the family representatives. He urged this Court to activate its jurisdiction under Section 15 of the Court of Appeal Act to rehear the issues raised suo motu by the lower Court, and relied on the decision in D.M.V. (NIG) LTD Vs. NPA [2019] 1 NWLR (Pt. 1652) 163 SC, EIMSKIP NIG. LIMITED Vs. EXQUISITE IND. LIMITED [2003] 4 NWLR (Pt. 809) 88 SC and a host of other authorities to urge this Court to resolve the second issue in the Appellants’ favour.
As for the Respondents, it is submitted that the trial Court did not raise any issue suo motu and no principle of fair hearing was breached. Counsel noted that the Appellants’ Counsel woefully misconstrued the principles relating to locus standi of a party to bring an action. Whilst relying on the decisions in the cases of OPOBIYI & ANOR Vs. MUNIRU (2011) LPELR – 8232 (SC), REV. PHILIP MICAH DOPAH & ORS Vs. REGISTERED TRUSTEES OF THE UNITED METHODIST CHURCH OF NIGERIA (UMCN) (2017) LPELR – 43624, counsel submitted that all that is required of a claimant is the nexus between him and the disclosed cause of action and this is determined by examining only the statement of claim. It was also further argued that a defendant who challenges in limine the locus standi of the claimant is deemed to have accepted all the averments contained in the statement of claim, as pleaded. The Respondents’ learned counsel argued that it is incorrect for the Appellants to contend that the lower Court raised issues suo motu when the Court arrived at its decision by looking at the averments contained in the statement of claim and from Exhibit F, a letter authored on behalf of the Appellants, 1st Respondent was unequivocally stated to be the head of the Ibhe Family. Counsel relied on S.P.D.C. Vs. EDAMKUE (2009) 6 – 7 SC t4 at 92, lines 12 – 28 and OBA ABDULAZEEZ SHOLA AGBOOLA Vs. BAALE AUDU (2018) LPLER – 44981 (CA), to submit that an opposing party cannot object to the representative capacity of a Plaintiff.
In the reply brief, the Appellants’ Counsel argued that the preliminary objection was never argued on the basis of the statement of claim but on the affidavits filed in connection with the preliminary objection. He further submitted that the trial Court has no investigative powers to comb the statement of claim, which is a document placed before it for another purpose, citing the case of BALARABE Vs. FRN (2019) 1 NWLR (Pt. 1652) 100 SC. It is the further submission of counsel that the fact in issue in this appeal is not on the issue of locus standi but on the proper parties to institute the action. The Respondents’ Counsel contends that the material arguments canvassed by the Appellants under this issue were not responded to by the Respondents.
RESOLUTION
It seems to me that even in the face of the complaint that the lower Court raised certain issues suo motu without affording the parties the opportunity to address it on the said issues, the crux of the complaint here is that the learned trial Judge erred when he held that the suit before the Court was properly brought even in the face of the evidence before the Court that the Respondents are not the head and principal members of the Emebuma Family. While giving the reason for his conclusion on this issue, the learned trial Judge held at pages 140 to 142 of the record of appeal, held as follows:
“… A cursory look at the Statement of Claim shows that the Claimants are members of the Emembuma Family, and this much has been admitted by the Defendants in their Affidavit in Support of the objection. It is equally clear (and the Defendants have admitted) that the declarations sought concerning the subject matter of the suit (the disputed parcels of land) are in favour of the said family. The law is trite (and the Defendants have not disputed it) that every member of a family has the locus to sue to protect the family’s interest in a family property… However, if he has not the authority of the family to bring the action, the family will not be bound by the result, unless for some reason, the family is estopped from denying that the decision was binding… Thus, a member of a family requires the consent/authority of the family, or where he does not have, he need the ratification by the family, for the result of an action instituted as representing the family to be binding on that family. On the other hand, the head of family can take out an action to protect family property or defend an action in respect of family property, even without the prior authority of other members of the family and the result shall be binding on the family…”
My noble Lords, from the above excerpt, it is evident that the learned trial Judge was on a proper standing and correctly stated the position of the law in connection with the extant issue. As the learned trial Judge subsequently noted in his ruling, the dispute between the parties does not border on the right of the Respondents to sue to protect the Emebuma Family’s interest in the disputed lands; and also not that, as members of the Emebuma Family, the Respondents do not have the authority to sue, the Appellants’ complaint as enumerated in one of the grounds of the preliminary objection is that since the Respondents are not head and principal members of the Emebuma Family, they lacked the capacity, in the absence of authority from the family or the head and principal members, to initiate this suit as representatives of the family.
Indeed, the law is that a person has the right to protect his family interest in or title to and can sue for himself and on behalf of the family in a representative capacity. See SOGUNLE Vs. AKERELE (1967) NMLR 58, NTA Vs. ANIGBO (1972) 5 S.C 156, MELIFONWU Vs. EGBUJI (1982) 9 S.C. 145, ATANDA Vs. OLANREWAJU [1988] 4 NWLR (Pt. 89) 394. In this case, the Respondents as claimants have exercised the right to protect their family interest in the disputed lands, by bring the action leading to the present appeal. There must be proof of substantial opposition in order to deprive them of their representative capacity. The Respondents’ right to bring the suit against Appellants as members of the Emebuma Family to defend and protect what they claim as Family land cannot be questioned. That point has long been settled in SOGUNLE Vs. AKERELE (supra) and religiously followed by a long line of cases to the effect that not just principal members of a family or community but every member of a family/community has proprietary interest in family/community land and so under a duty to protect it and consequently a standing to institute action in respect of any wrong or threat to such property. According to ONYEAMA, JSC in SOGUNLE Vs. AKERELE (supra) p. 60: “(t)here is authority for the view that a member of a family may take steps to protect family property or his interest in it, if he has not the authority of the family to bring the action the family would, of course, not be bound by the result, unless for some reason the family was estopped from denying that the action was binding.”
In the present case, the Respondents are claiming that the disputed lands belonged to their family – the Emebuma family, it would be odd if, even as a result of a misunderstanding or unsettled issues between the Respondents and the Appellants (even if accepted that they are members of the same family) that the respondents could not protect family rights in the family land because the Respondents are not head and principal members of family.
The statement of law handed down by the Supreme Court in LAYINKA Vs. GEGELE [1993] 3 NWLR (Pt. 283) 518 at 530, to the effect that capacity to bring a representative action to protect family or communal interest should not be equated with capacity to divest interest in family or communal property. His Lordship, KARIBI-WHYTE, JSC stated the principle thus:
“I think the proposition that the validity of sale of land on behalf of the family can only be by the head of the family and the principal members, or voidable only by the principal members alone. See Ekpendu v. Erika (1959) SCNLR 186 cannot be extended to the challenge of actions against the interest of the family. See Sogunle v. Akerele (1967) NMLR 58. …. Every member of the family has an interest in family property and is under a duty to protect such property. There is therefore a locus standi to institute an action in respect of wrong done to such a property.”
Similar reasoning was expressed by the apex Court in SAPO Vs. SUNMONU [2010] ALL FWLR (Pt. 531) 1408) 1425, where OGBUAGU, JSC held that:
“A head of family can take action to protect family property or defend an action in respect of family property, even without the prior authority of other members of the family. So also any member of the family may take steps to protect family property or his own interest in it.” (Emphasis mine). The trial judge was therefore under a duty to entertain and decide on the merits late Owolabi’s action to defend his community land and enter judgment at least in his personal capacity. That is where the submission of Mr. Oji that the rules of Court on representation are not rigid becomes relevant.”
Meanwhile, it is instructive that, in support of their contention that the Respondents are not the head and principal members of the Emebuma Family and therefore lacks the capacity to bring the action in a representative capacity, the Appellants relied on Exhibits CLP1 to CLP5. Exhibits CLP1 to CLP4, which include minutes of meetings and elections of the head and principal members of the Emebuma Family; Report of elections; Administered Oath of Office as well as letter of introduction/presentation; are documents purportedly showing the processes leading to the election and appointment of the said head and principal members from July, 2015 and September, 2015. It is from this process that one Alhaji Kashim Oru purportedly emerged as the head of the Emebuma Family, as touted by the Appellants. On the other hand, Exhibit CLP5 is the writ of summons in connection with the suit commenced at the instance of the Respondents herein, seeking inter alia an order of Court declaring that the Respondents “constitute the leadership of Emebuma Family”. The said suit was commenced and constituted in Suit No. OHC/2014 on 10th September, 2014. What this shows is that not only was the purported election/selection/appointment of the head and principal members of the Emebuma Family being touted by the Appellants, done during the pendency of a suit touching on the subject of the proper person(s) to act in that capacity; it is also obvious that the said Alhaji Kashim Oru was sued by the Respondents as 4th Defendant in Suit No. OHC/20/2014 and cannot therefore feign ignorance of the pendency of the said action.
It is indeed disheartening that the Appellants are touting the appointment of some persons as head and principal members of the Emebuma Family done ostensibly without due regard to the fact that a dispute in connection with that subject is before a Court of law, and in apparent defiance of the authority, justice, and dignity of the Court. Of course, I do not see any justifiable reason for which the trial Court would have countenanced the said Exhibits in considering the issue at hand. As a matter of fact, the learned trial judge was on the right judicial footing when he held that the issue as to who the head and principal members of the Emebuma Family was, is in dispute between the Respondents and Alhaji Kashim Oru in Suit No. OHC/20/2014.
In a nutshell, I am unable to accept the arguments canvassed by the Appellants on this issue, as well founded; they are in my view, misconceived. The decision of the learned trial Judge on this issue in my respectful view, reflects the correct position of the law, and I think that its incumbent on the Appellants to cue behind the reasoning and conclusion therein. In the circumstances, this issue is resolved against the Appellants.
ISSUE THREE
The Appellants’ counsel argued, in the main brief and the reply brief, contended that the learned trial judge erred when he held that the Respondents have disclosed an all-encompassing cause of action against the Appellants in respect of the four (4) expanses of land (to wit: Agbamini, Owerewala (Orewalah), Isionogono and Elabio), for which the action was commenced against the Appellants. Relying on the decision in the case of THOMAS Vs. OLUFOSOYE (1986) 1 NSCC 323, WILLIAMS Vs. WILLIAMS [1995] 2 NWLR (Pt. 375) 1 SC, GREEN FINGER AGRO IND. Vs. YUSUF [2003] 12 NWLR (Pt. 835) 488 and LUNA Vs. C.O.P., RIVERS STATE [2018] 11 NWLR (Pt. 1630) 269, Counsel submits that allegation of wrongful act linking the Appellants was only made with respect of one (1) of the large expanse of land known as “Owerewala also known as Orewalah” at paragraph 46 of the statement of claim.
In response, it is the submission of the Respondents’ Counsel, relying on SAVAGE & ORS Vs. UWECHIA (1972) 3 SC (REPRINT) 206 at 257 and REV. PHILIP MICAH DOPAH & ORS (supra) in so far as the statement of claim raise some questions fit to be decided by a judge, the mere fact that the case is not likely to succeed is not a ground for striking it out. The learned Respondents’ Counsel argued that a community reading of the relevant paragraphs of the statement of claim, shows that the Appellants have continued to lay exclusive claim to the parcels of land belonging to the Emebuma Family, and the trial Court was right to have held that the Respondents’ statement of claim discloses reasonable cause of action fit for trial.
RESOLUTION
The position of the law is very clear that for a suit to disclose a reasonable cause of action, the claimant’s statement of claim must set out the legal rights of the claimant and the obligations of the Defendant. It must then go on to set out facts constituting the breach or infraction of the plaintiff’s legal rights or failure of the defendant to fulfill its obligations in such a way that if there is no proper defence, the Plaintiff will succeed. See RINCO CONSTRUCTION COMPANY LIMITED Vs. VEEPEE INDUSTRIES LTD. & ANOR (2005) LPELR – 2949 (SC).
The reasoning of the learned trial Judge leading to the conclusion that the Respondents’ statement of claim discloses reasonable cause of action is found at pages 146 to 147 of the record of appeal, and the relevant portion in the said ruling is reproduced below:
“Upon a careful scrutiny of the statement of claim, it is clear that in paragraph 10 thereof, the Claimants state that the disputed lands were founded by Emebuma, the common ancestor of both parties; in paragraph 46, they aver thus:…
… Here, the wrongful act of the Defendants is the claim to exclusive ownership of the disputed land and the sale of 576 plots to the 8th and 9th Defendants without the consent and authorization of the 1st Claimant and other Principal members of the Emebuma Family, while the consequent damage is the sale of the land without the consent of the family. The above reproduced averment sufficiently discloses two important elements of a reasonable cause of action. The Statement of Claim therefore discloses a reasonable cause of action….”
I have taken a careful look at the 49 paragraphed statement of claim filed on behalf of the Respondents as Claimants at pages 5 to 15 of the record of appeal, and I am in agreement with the learned trial judge that the averments contained therein disclose reasonable cause of action. Perhaps, of relevance, the Respondents averred thus:
“5. The Emebuma Family is the lawful owner of all the parcels of land known and called Owerewala, Agbamini, Elabio and Isionogono bushes respectively, all lying and situate in Otuoke Community in Ogbia Local Government Area of Bayelsa State as described herein below….
9. The Claimants aver that Owerewala, Agbamini, Elabio, and Isenogono bushes, respectively were all founded by Emubuma, also known as Amayebimo, one of the co-founders of Otuoke Community…
22. As stated supra, Emebuma, the progenitor of both the Claimants and the Defendants founded many bushes including Owerewala, Agbamini, Elabio and Isenogo bushes respectively, which are well known to both the Claimants and the Defendants. From time immemorial the possession and ownership of these lands/bushes have been in control and management of the respective heads of Emebuma family and same, have never anytime in the history of the Emebuma family been partitioned customary or otherwise among the units…
33. The Claimants aver that the Emebuma family had exercised undisturbed acts of ownership, control and possession variously over the parcels of land by selling, farming, erecting building without any form of rival claim from any person or group of persons from Otuoke Community including the Defendants…
37. The Claimants aver that when the Federal University, Otuoke was to be sited, the Government of Bayelsa State approached the Emebuma family for the acquisition of part of Agbamini and Elabio bushes for skill acquisition and Federal University, Otuoke. Part of Elabio and Agbamini bushes were acquired, and compensation was equally paid to the Emebuma family and not to a sub-unit within the Emebuma family. And ever since the acquisition of part of the two bushes mentioned supra, now in dispute, the Federal University, Otuoke, had been inviting the Emebuma family for a meeting of landlords. Recently, the Federal University, Otuoke, invited the Emebuma family for a meeting on the Environmental Impact Assessment, comprising the landlords and other stakeholders of the Otuoke Community….
41. The Claimants aver that without recourse to the legitimate rights of majority of the principal members of the Emebuma Family and also the head of the family who appointed them, the family management committee, in connivance with few individuals unlawfully sold Emebuma family lands without the consent and authorisation of the family head then. The money realised from the unlawful and illegal sale of the parcels of lands belonging to the Emebuma family were not accounted for by some of the Defendants and their cronies who constitute the family land management committee.
42. It was clear at that point that the Emebuma family properties were depleting through the illegal and unlawful sale of the family land by the Defendants and their cronies. The committee sold parts of Agbamini, and large chunks Owerewala and other lands in dispute. In all these parcels of land the committee sold, they sold it in the name of the Emebuma family and did not claim it as their personal inheritance. The issue of the purported exclusive claim of these parcels of land in dispute by the Defendants came as a result of the dissolution of the land management committee by the Emebuma family sometimes in 2010 in a meeting called by the head of the family then, Chief Osain Solomon Oru…
46. The Claimants aver that the Defendants having attempted in their bid to take over the property of late Solomon coupled with the dissolution of the land management committee, the Defendants decided to break away from the Emebuma family to form their own Ibhe family. Consequently, the Defendants are not claiming exclusive ownership of the parcels of land now in dispute, which they know belong to the larger Emebuma family. In so doing, the Defendants illegally and unlawfully sold more than 570 (Five Hundred and Seventy) plots of Owerewala bush to the 8th Defendant and 6 plots to the 9th Defendant at the same Owerewala bush without the consent and authorisation of the 1st Claimant and other principal members of the Emebuma Family.”
It’s my view that a cumulative reading and consideration of the above reproduced averments ought to leave no one in doubts as to the legal rights asserted by the Respondents as Claimants against the Appellants as Defendants. The Respondents’ complaint against the Appellants is very explicit and it can be summed up to be the Appellants’ interference and threatened interference in the Respondents’ enjoyment of the right/interest in the four disputed lands. Indeed, the fact that only a part of one of the disputed land – Owerewala land – has been alleged to have been unlawfully sold by the Appellants, is not a sufficient reason to sustain an inference that the Respondents’ complaint of allegation of wrongdoing on the Appellants’ part is limited to the Owerewala land. As a matter of fact, the Respondents have copiously averred that the consequent upon the breakaway of the Appellants’ Ibhe family from the Emebuma family, the Appellants’ family are asserting exclusive ownership of the “parcels of land now in dispute which they know belong to the larger Emebuma family”.
Instructively, Exhibit F annexed to the Respondents’ counter-affidavit filed in connection with the preliminary objection, and found at pages 91 to 92 is a letter dated 6th July, 2015 written by a solicitor (instructed by the 1st to 3rd Appellants) on behalf of the Appellants’ Ibhe family to the Vice Chancellor, Federal University, Otuoke, Bayelsa State, whereby the Ibhe family asserts their exclusive bonafide ownership of “that expanse of land known and called Agbamini Bush situated around Otuoke Town in Ogbia Local Government Area of Bayelsa State which was originally donated for the Skill Acquisition Centre, Otuoke, now intended to be converted into the Faculty of Engineering in your Institution”. In the same letter, it was stated on behalf of the Appellants’ Ibhe family that “any arrangement, negotiation for an understanding that includes the defunct Emebuma family without our clients Ibhe family should be suspended forth with…”. My Lords, it is noteworthy that the expanse of land referenced in this letter is also part of the four disputed lands in respect of which the action at the lower Court was commenced by the Respondents. Specifically, the Respondents have averred that the land acquired by the Federal University, Otuoke for its skill acquisition and University was part of Agbamini and Elabio, which the Appellants are asserting adverse right vide Exhibit F.
In the case of Yusuf v. Akindipe [2000] 8 NWLR (Pt. 669) 376, the Supreme Court, per Ogwuegbu, JSC held that a reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleadings (statement of claim) are considered. So long as the statement of claim discloses some cause of action or raises some questions fit to be decided by a Judge as in this case. Premised on all I have said, I am in agreement with the learned trial judge that the Respondents’ statement of claim disclosed reasonable cause of action. Therefore, this issue is resolved against the Appellants.
ISSUE FOUR
Relying on the provisions of Section 15 of the Court of Appeal Act, and Order 4(1) of Court of Appeal Rules, 2016; OSAFILE Vs. ODI (No. 1) [1991] 3 NWLR (Pt. 137) 130 SC, YUSUF Vs. ADEGOKE [2007] ALL FWLR (Pt. 385) 384 SC, the learned Appellants’ counsel submitted that the refusal of the learned trial Judge to determine the third issue formulated by the Appellants in connection with the preliminary objection is wrong and this Court is empowered to determine the said issue, which was properly raised. The Appellants’ Counsel further relied on the ratio of the decisions in AKINTOLA Vs. SOLANO [1986] 2 NWLR (Pt. 24) 598 SC and WILLIAMS (JNR) & ANOR Vs. WILLIAMS (1995 – 1996) ALL NLR 283 to argue that where the averments contained in the statement of claim do not contain the necessary material facts to support the granting of the reliefs sought by the Respondents. The Appellants’ Counsel argued the Court cannot grant the reliefs sought by the Respondents, which is for declaration that the disputed lands belong to the Emebuma Family; damages for trespass and injunction, since the Respondents did not plead material facts in the entire 49 paragraph statement of claim. Counsel maintained that the allegation of wrongful act made against the Appellants was only in respect of one out of the four parcels of land; there was no fact to ex-facie to show actual exclusive possession of the disputed land; and also that injunctive relief cannot be granted in a claim where the land is not identified and defined with exactitude of precision with designated global coordinates, relying on Section 39(1)(a) and 40 of the Land Use Act; BUHARI Vs. INEC [2009] ALL FWLR (Pt. 459) 419, OGUNBIYI Vs. ADEWUNMI [1988] 5 NWLR (Pt. 93) 215, ROTIMI Vs. MACGREGOR (1970) ALL NLR 320 at 323, ODIBA Vs. AZEGE [1998] 9 NWLR (Pt. 566) 378 SC. The learned Counsel cited the decisions in OBIUWEUBI Vs. CBN [2011] 7 NWLR (Pt. 1247) 465 SC, REGD. TRUSTEES, A.O.N. Vs. N.A.M.A [2014] 8 NWLR (Pt. 1408) 1 SC; UMAR Vs. APC [2018] 18 NWLR (Pt. 1560) 139 SC in support of his contention that since all the decisions relied upon in support of the Appellants’ case are the Supreme Court’s decisions and are therefore binding on every Court. The learned Appellants’ Counsel also made the point that the provisions of the Land Use Act are deemed by Section 315 of the Constitution as an integral section of the Constitution.
The Respondents’ counsel in response submitted that the cases relied upon, and principles referred to by the Appellants, bordering on reasonable cause of action, are inapplicable in the instant case. He argued that even though a Court has a duty to consider all the issues pleaded before it, where it is of the view that a consideration of one issue is enough to dispose of the matter, the Court is not under any obligation to consider all the other issues posed by the parties, citing the decision in 7UP BOTTLING CO. LIMITED Vs. ABIOLA & SONS BOTTLING CO. LIMITED [2001] 13 NWLR (Pt. 730) 469 at 499. It is the submission of the Respondents’ counsel that the issue of non-compliance with the ipsissima verba of Section 40 of the Land Use Act is purely hypothetical or academic and has nothing to do with the matters in contention between the Appellants and the Respondents, thus the learned trial Judge was right not to have wasted his judicial time to make any pronouncement thereon. The decision in the case of OJAH Vs. OGBONI [1996] 6 NWLR (Pt. 454) 273 at 292, was relied upon by the Respondents’ Counsel in support of his submission. He finally argued that all the cases cited by the Appellants’ Counsel are inapplicable.
In the reply brief, Appellants’ Counsel maintained that the third issue in connection with the preliminary objection was neither subsumed nor considered along with any other issue(s) and there was no pronouncement that same was hypothetical or academic. It is the submission of Counsel that the case of OJAH Vs. OGBONI (supra) is in support of the Appellants’ case that the only right left for Nigerians in land litigations under the Land Use Act is right of occupancy and none other, and also that the decision in the case of SALAMI Vs. OKE (supra) is an attempt to vary, amend or jettison the express and mandatory provisions of an Act of the National Assembly, which power the Court does not possess, relying on AMOSHIMA Vs. THE STATE [2011] 14 NWLR (Pt. 1268) 530 SC. The Appellants’ counsel further relied on the decisions in UGBOJI Vs. THE STATE [2018] 10 NWLR (Pt. 1627) 346 SC, MENAKAYA Vs. MENAKAYA (supra), ABBEY Vs. THE STATE [2018] 1 NWLR (Pt. 1600) 183 SC on the need to comply with the procedure prescribed by statute. He finally submitted that the case of SALAMI Vs. OKE (supra) can no longer stand the contemporary periods that statutory prescriptions cannot be varied except it is amended, repealed or declared void for being inconsistent with the principal organic law which is the Constitution, supra.
RESOLUTION
From a careful study of the ruling delivered by the learned trial Judge, it is obvious that the trial Court did not consider and make pronouncement on the third issue formulated by the Appellants in the written address filed in support of the preliminary objection bordering on the question that it is legally impossible from all known established principles of law and equity for the Court to grant any of the reliefs sought by the Respondents. It is not in dispute that this Court is empowered to consider and determine the said issue on the backdrop of Section 15 of the Court of Appeal Act.
Now, the reliefs sought by the Respondents is trenchantly stated in the statement of claim and can be found at pages 14 to 15 of the record of appeal, they read thus:
1. “A declaration that the parcels of land known and called Agbamini, Owerewala, Isionogono and Elabio bushes respectively, lying and situate at Otuoke Community in Ogbi Local Government Area of Bayelsa State is a property of the entire Emebuma family.
2. A declaration that the sale of about 570 and 6 plots of land at Owerewala bush by the 1st – 7th Defendants to the 8th and 9th Defendants without the consent and authorisation of the Claimants and the other principal members of the Emebuma family is unlawful, illegal, null and void, and therefore constitute trespass.
3. An order of perpetual injunction restraining the 1st – 7th Defendants, their privies, agents, servants or whosoever claiming through them from further entering or selling or claiming ownership of any of the parcels of land at Agbamini, Owerewala, Isionogono and Elabio bushes, respectively, property of the Emebuma family, and the 8th and 9th Defendants from entering or selling or carrying out further development on the parcels of land at Owerewala Bush, all lying and situate at Otuoke community in Ogbia Local Government Area of Bayelsa State.
4. Award of damages in the sum of One Hundred Million Naira (N100,000,000.00) naira only for the Defendants’ acts of trespass.”
The kernel of the Appellants’ complaint is that the trial Court cannot grant the reliefs sought by the Respondents since the Respondents have not sought for a declaration of right of occupancy which the Court is empowered to grant by virtue of Sections 39(1)(a) and 40 of the Land Use Act. The Appellants have contended that relief for a declaration that the disputed lands are owned by the Respondents cannot be granted by the Court. In my opinion, which I believe is based on the state of law on this issue, the Appellants’ contention is not well founded. In SALAMI & ORS Vs. OKE (1987) LPELR – 2982 (SC), the Apex Court, per OPUTA, JSC Rtd and of blessed memory, stated the categorically the correct position of the law as follows:
“…There is nothing in the Land Use Act precluding a trial Judge from awarding declaration of title, forfeiture and injunction. The only innovation introduced by the Land Use Act was to divest any claimant of radical title and limit his claims to “a right of occupancy”. A claimant can be entitled to a declaration of title to the right of occupancy of a piece of land. That was exactly what the trial Court awarded the present Plaintiffs/Respondents. Even before the inception of the Land Use Act, in many areas of the Rivers State of Nigeria where land was owned by the “polo” or “compound”, all an individual member could claim was “a declaration of title to the right of occupancy” of the land in dispute.”
The Respondents’ counsel has aptly in my view, commended this Court to the decision of the Supreme Court in the case of OJAH Vs. OGBONI (supra), where the Court followed its earlier decision in SALAMI & ORS Vs. OKE (supra). In the words of IGUH, JSC:
“I think the first point that ought to be made is that the power of the Court to make declaratory Judgments is now virtually accepted as unlimited. See Madumere vs. Okafor [1990] 3 NWLR (Pt. 138) 327. It also seems to me well settled that notwithstanding the coming into force of the Land Use Act, a successful claimant may be entitled to, and the trial Courts are not precluded in appropriate cases from awarding declaration of title, forfeiture and/or injunction in a land case. As Oputa, J.S.C. put it, and I am in total agreement with him, the only innovation introduced in land cases by the Land Use Act was to divest a claimant of radical title to the land claimed and limit his entitlement to a right of statutory or customary occupancy in respect of such land… Accordingly, a claimant may still be entitled to a declaration of title to the right of occupancy of a piece or parcel of land in dispute… Indeed, where the circumstances of a case warrant it, a declaration of title simpliciter may be varied by the Courts to read a statutory right of occupancy as the Courts have not, in appropriate cases, departed from the path of doing substantial justice in matters before them simply because a successful party has in drafting his claims failed to employ the ipsissima verba of Section 40 of the Land Use Act….”
See also FASORO Vs. BEYIOKU [1988] 2 NWLR (Pt. 76) 253.
Contrary to the erroneous submissions made by the Appellants’ Counsel in the reply brief, the decision of the Supreme Court has firmly stated the position of the law in relation to the issue at hand and this Court is bound to follow same on the principle of stare decisis. It is quite disheartening that the Appellants have argued in the reply brief that the decisions of the Supreme Court, referred to above, handed down in the exercise of its judicial powers conferred upon it by the Constitution, is an attempt to vary, amend or jettison the express and mandatory stipulation of the Act of the National Assembly and can no longer stand the contemporary periods. God forbid the day this Court will sit on appeal against the decision of the Apex Court on an issue which had been firmly settled. This Court, and indeed every lower Courts in the land, is mandated to abide, and follow the decisions of the Apex Court which are founded on similar facts to the one before the Court. The decision of the Apex Court in the cases of SALAMI & ORS Vs. OKE (supra) and OJAH Vs. OGBONI (supra) is the authority on the unlimited powers of the Court to make declaratory Judgments as equitable remedies, and in this case to grant the first reliefs sought by the Respondents in the context of the provision of the Land Use Act.
In relation to the other reliefs sought by the Respondents, a study of the relevant averments of the Respondents’ statement of claim clearly disclosed foundational facts upon which the said reliefs are sought, particularly in relation to the Appellants’ act of selling part of the disputed lands to the 8th and 9th Appellants, an act which the Respondents alleged, constitute trespass into their properties, and in respect of which they are entitled to damages and a relief for injunction. I must say that it is not the business of the Court to consider the perceived strengths or weaknesses of the Respondents’ claims, at the preliminary stage of the hearing in the absence of evidence led; rather as noted above, to the extent that there are facts the basis upon which the Respondents can proceed in their claim against the Appellants, the Appellants’ contention under this issue cannot in my view, hold sway. As a result, just as in the other issues considered in this appeal, this issue is also resolved against the Appellants.
In the end, it is my humble view that this appeal is devoid of merit, and it is hereby dismissed in its entirety. The decision of the High Court of Bayelsa State, Ogbia Judicial Division coram Honourable Justice R. Ajuwah delivered on 30th October, 2018 is hereby affirmed. Costs of N150,000.00 is awarded in favour of the Respondents against the Appellants.
The appeal is hereby dismissed.
TANI YUSUF HASSAN, J.C.A.: I read in draft the lead judgment of my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA. I agree with the reasoning and conclusion in dismissing the appeal. I abide by the order as to costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: The leading judgment just delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA was presented to me in its draft which I perused.
I agree with the reasoning and conclusion contained in the lead judgment with nothing useful to add thereto.
The appeal as constituted lacked merit and dismissed by me as done in the leading judgment. Therefore, the decision of the Court below delivered by Hon. Justice R. Ajuwah on the 30th day of October, 2018 is affirmed.
I abide by the consequential order as to costs.
