JOHNSON IFEACHO & ANOR V. INLAND MEDICAL COMPANY (NIGERIA) LIMITED
(1999)LCN/0478(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 2nd day of November, 1999
CA/E/227/98
JUSTICES:
NIKI TOBI Justice of The Court of Appeal of Nigeria
SULE AREMU OLAGUNJU Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
Between
- JOHNSON IFEACHO
2. GOODLUCK ADUGO Appellant(s)
AND
INLAND MEDICAL CO. (NIG.) LIMITED Respondent(s)
RATIO
THE POSITION OF LAW ON WHEN A CLAIM FOR TRESPASS TO LAND IS COUPLED WITH A CLAIM FOR AN INJUNCTION
My starting point on issue 1 is that there are authorities galore that whenever a claim for trespass to land is coupled with a claim for an injunction, the title of the parties to such land in dispute is automatically put in issue. In Odukwe v. Ogunbiyi (supra) at page 123, Iguh, JSC put it clearly beyond peradventure as follows:
“Without doubt, whenever a claim for trespass to land is coupled with a claim for an injunction, as in the present case, the title of the parties to such land in dispute is automatically put in issue. See Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508 at 515. So, too, when two parties are on a piece or parcel of land claiming possession, the possession being disputed, trespass will be at the suit of that one who can show that title to such land is in him.” PER FABIYI, J.C.A.
THE POSITION OF LAW ON JOINDER OF A NECESSARY PARTY
As for the 2nd issue relating to whether or not the Ifeacho and Nwadibie family of the appellants are necessary parties to the substantive suit, it is necessary to refer to Order 3 Rule 1 of the High Court Rules of Anambra State, 1988. It provides as follows:
“Any person in whom a right to relief exists may sue as plaintiff and any person against whom the relief exists may be sued as defendant.”
In Anabaraonye v. Nwadike (supra) at page 166, the Supreme Court pronounced that ‘a necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the question involved in the cause or matter.’ In Black’s Law Dictionary, fifth Edition, at page 750 reference is made to ‘joinder of parties’ which is said to be the act or uniting as parties to an action all persons who have the same rights or against whom rights are claimed, as either co-plaintiffs or co-defendants. Non-joinder is at page 751 defined as the omission to join some person as a party to a suit, whether as plaintiff or defendant who ought to have been joined. An omitted party may be added on motion of any party or on Court’s own motion. A necessary party is joined for the effectual and complete adjudication of all the questions involved in the case. The object is so that the party can be bound by the result of the litigation. The aim is to put an end to litigation and not to have two parallel proceedings over the same subject-matter. In Ige v. Farinde (supra) at page 300, the Supreme Court said:
“The aim is to put an end to litigation and not to have two parallel proceedings in which the self-same issue was raised, leading to different and inconsistent results. One other objective in ruling that a person is a necessary party is for him to be bound by the result of the litigation. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.”PER FABIYI, J.C.A.
WHETHER OR NOT A CLAIM FOR TRESPASS IS NOT DEPENDENT ON A CLAIM FOR DECLARATION OF TITLE TO THE LAND
It is the law that a claim for trespass is not dependent on a claim for declaration of title to the land as the former claim can succeed on proof of actual possession of the land. See Oluwi v. Eniola (1967) NMLR 339. Once the plaintiff proves exclusive possession, his action succeeds. See Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370; Udo v. Obot (1989) 1 NWLR (Pt. 95) 59; Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 297.
However, where as in this case, a party jointly claims for trespass and injunction, the issue of title is automatically in issue. See Kponuglo v. Kudadja 2 WACA 24; Ajani v. Ladepo (1986)1 NWLR (Pt. 28) 276; Odukwe v. Ogunbiyi (1998) 6 SCNJ 102; (1998) 8 NWLR (P.561) 339.
In Ogunfaolu and Another v. Mrs. Adegbite (1986) 5 NWLR (Pt. 43) 549, it was held that once title is made an issue in an action for trespass and injunction, as a result of competing claims by both the plaintiff and the defendant, the trial court has a duty to first determine the issue of title to make a specific finding on it.
Similarly, in Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, the Supreme Court held that a claim for trespass and injunction postulates that the plaintiff is the owner of the land in dispute or has had, prior to the trespass complained of, exclusive possession of it and the issue must therefore be proved on who establishes a better title, the general onus of proving which lies on the plaintiff. PER FABIYI, J.C.A.
FABIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Ernest-Egbuna, J. sitting at Awka High Court, Anambra State of Nigeria delivered on 19-2-98. The learned trial Judge, by the ruling, dismissed the application of the Appellants by which they prayed for an order allowing them to defend the suit and also prosecute their counter-claim “for themselves and on behalf of the Ifeacho and Nwadibie Family of Isiagu-Amikwo Village of Awka”.
For a proper appreciation of the issues at stake in this appeal, it is apt to recapitulate albeit briefly, the background facts of the matter. The stand of the Respondent is that the Government of Anambra State issued a statutory certificate of occupancy over the contested parcel of land within an industrial layout in Awka environ to Inland Group of Companies (Nigeria) Limited. This company, in turn, granted the Respondent an irrevocable power of Attorney in respect of the said parcel of land subject of certificate of occupancy. The Respondent thereafter commenced a building project on the land. The two appellants moved onto the land and physically stopped the Respondent’s workers on site from progressing with further work.
Consequent upon the above position/stance of the Appellants, the Respondent then filed its action claiming damages for trespass and injunction.
The two appellants on record, on their own part, maintain that the land is their family property. Their Ifeacho and Nwadibie family had been farming on the said land from time immemorial through their family members. When the family noticed the presence of the Respondent on the land, the family mandated them to stop any trespasser on the land. They complied as they went to stop the Respondent from further clearing the land preparatory to building a house. It is instructive to note here that the Appellants also counter-claimed for damages for trespass and injunction against the Respondent over the land as well.
After pleadings were exchanged and issues duly joined, the appellants filed a motion in which they prayed:
‘… For an order allowing the named defendants on record to defend and prosecute this suit for themselves and on behalf of all others, the members of Ifeacho and Nwadibie family of Isiagu Amikwo Village, Awka … ‘
The averments in the affidavit of the 1st Appellant in support of their motion point to the fact that the land belonged to their family and not to the appellants personally. In stopping the Respondent from further work on the land, they were acting under the instruction and authority of their family. They asked that the family be made a party to the suit. As well, they maintained that they have the full authority of the family to represent them.
It is also pertinent to give a resume of the ruling of 19- 2-98 now under fire. The trial Judge agreed that the appellants established clearly that the Ifeacho and Nwadibie family mandated the appellants to represent them in the suit. The Trial judge was of the view that since the claim and the counter-claim relates to trespass and injunction such is a challenge to possession and not a challenge to title to the land. That since no title is in issue, the family members have no interest to protect in the subject-matter of the suit and are not parties likely to be affected by the result of the claim for trespass and injunction. The Trial Judge felt that the effect of the application being granted would be that the named defendants would cease to be the only defendants but would appear in this case merely as representatives of their family. That the family would then supplant the named defendants on record.
The above, in a nutshell, contain the rationale of the trial Judge. Such led him to dismiss the application of the appellants for joinder of necessary parties with N500 costs in favour of the Respondent. The stated dismissal of the appellants’ application precipitated this appeal. The notice cum grounds of appeal dated 3-3-98 was filed on 4-3-98. Two grounds of appeal accompanied the said notice of appeal. They read as follows with their particulars:
‘(a) The learned trial Judge erred in law when he refused to allow the defendants on record to defend this suit for themselves and on behalf of Ifeacho and Nwadibie families on the ground that title is not in issue in this suit whereas title is in issue because trespass and injunction were claimed together.’
Particulars of Error
i. The Plaintiff/Respondent having claimed damages for trespass and injunction, whilst the defendants/appellants counter-claimed also for damages for trespass and injunction over the disputed land, title is inexorably in issue.
ii. Since the dispute revolves around which of the parties is in exclusive possession the presumption of law is that the person having a better title to the disputed land is the person in possession.
iii. In the circumstances of this case, the court cannot resolve the question of possession without first resolving the question of who has better title to the disputed land.
iv. The Ifeacho and Nwadibie families having adopted the alleged trespass of the named defendants on record, the Learned Trial Judge ought to have allowed their application to be joined and represented by the named defendants on record.
b. The Learned trial Judge erred in law when he held that if the defendants are allowed to defend the suit as representing Ifeacho and Nwadibie families, then “the Ifeacho and Nwadibie families, to which the 1st and 2nd defendants belong would supplant the 1st and 2nd defendants as defendants in this suit.”
Particulars of Error
i. When an action is commenced and/or continued in representative capacity, both the named parties and those they represent are parties to the action.
ii. If the named defendants are allowed to defend the suit as representing Ifeacho and Nwadibie families, the named defendants are not “supplanted” but are still parties in addition to the parties they represent.
The relief sought from this court is an order allowing the defendants/appellants on record to defend this suit and also prosecute their counter-claim in a representative capacity for themselves and on behalf of Ifeacho and Nwadibie families of Isiagu-Amikwo Village, Awka.
On 21-9-99 when this appeal fell due for hearing, Vin. Nwabueze Esq. (formerly Vin. Agbata) learned Counsel for the appellants, adopted the brief dated 21-12-98 and filed on 4-1-99 on their behalf. He then urged that the appeal be allowed. N.N. Onugha, Learned Counsel for the Respondent, adopted the Respondent’s brief dated 19-2-99 and filed on 22-2-99. He urged that the appeal be dismissed.
As contained on page 3 of the Appellants’ brief, the three issues upon which this appeal must stand or fall are as follows:
“i. Whether from the state of pleadings and affidavit evidence, title is in issue particularly in view of the claim and counter-claim for trespass and injunction in the substantive suit.
ii Whether or not the Ifeacho and Nwadibie family of the appellants are necessary parties to the substantive suit.
iii. What is the effect of commencing and/or continuing a suit in a representative capacity?”
In arguing issue 1 as stated above, Vin. Nwabueze, Learned Counsel for the appellants, submitted that whenever there is a claim as well as a counter-claim for trespass and injunction over a portion of land, title to the said portion of land is inextricably in issue. He referred to the case of Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 139; (1998) 6 SCNJ 102 at 123.
Learned Counsel further submitted that where there is a dispute as to which of the two persons is in possession, the presumption is that the person having a title to the land is in possession. He referred to Badejo v. Sawe (1984) ANLR 319 at p. 321, Umeobi v. Utukoya (1978) ANLR 140 at p. 153, Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt.401) 255; (1995) 7 SCNJ 55 at p. 67. Learned Counsel finally submitted on issue 1 that the learned trial judge was in error when he held that there is no issue of title in the case and that the family cannot therefore be joined.
On issue 2, Learned Counsel submitted that from the unchallenged affidavit evidence on the record the Ifeacho and Nwadibie family is a necessary party to the suit. He referred to Order 3 Rule 1 of the High Court Rules of Anambra State, 1988 as well as the case of Anabaronye v. Nwadike (1997) 1 NWLR (Pt.482) 374; (1997) 1 SCNJ 161 at p. 166.
Learned Counsel observed that the stated family mandated the Appellants to take action to protect the family interest in the land. He submitted that for any meaningful, effectual and complete adjudication of the question involved the family should be made a party to the suit as they are necessary parties. He referred to the cases of Ige v. Farinde (1994) 7 NWLR (Pt.354) 42: (1994) 7 -8 SCNJ 284 at p. 300: Atunrase v. Sunmola (1985) 1 NWLR (Pt.1) 105; (1985) ANLR 1445 at p. 162: Chinweze v. Masi (1989) ANLR 1 at p. 12.
Learned Counsel, on issue 2, finally submitted that Ifeacho and Nwadibie family is a necessary party to the suit and should therefore be joined as a party.
On issue 3 for determination, Learned Counsel observed that same raises the question of the effect of commencing a suit in a representative capacity. He observed that it is necessary to determine this issue in this appeal because in dismissing the application of the appellants to join the Ifeacho and Nwadibie family and to allow the appellants to defend the suit and also prosecute their counter-claim “for themselves and on behalf of the Ifeacho and Nwadibie family” the learned trial Judge held that to allow the application would amount to the family supplanting the appellants as defendants in the suit. Learned counsel said with greatest respect to the trial Judge, the view expressed by him is an erroneous statement of the law. He cited in aid of his stand point the case of Okotie v. Otugbor (1995) 5 SCNJ 217 at pages 225 – 226.
Learned Counsel finally submitted that the correct position of the law is that if the application is granted, the other members of Ifeacho and Nwadibie family would become parties to this suit in addition to the Appellants who remain the dominis litis until the suit is determined. He urged us to allow the appeal for the reasons that title is in issue in the suit. Ifeacho and Nwadibie family is a necessary party to the suit. In a representative action, both the named parties and those they represent are all parties to the action.
N. N. Onugha, Learned Counsel for the Respondent, on the first issue, observed that none of the parties to the suit directly claimed title both in the claim of the Respondent as well as in the counter-claim of the Appellants. The claim of the Respondent is one based on possession as imbued on them by the certificate of occupancy issued by the Anambra State Government. He referred to the cases of Joshua Ogunleye v Babatayo Oni (1990) 2 NWLR (Pt.135) 745; (1990) ANLR 341 at p. 343 Makanjuola v. Chief Balogun (1989) 3 NWLR (Pt. 108) 192; Savannah Bank of Nigeria Ltd v. Ajilo & Anor (1987) 2 NELR (Pt. 67) 421; (1987) 2 NWLR (Pt.57) 421.
Learned Counsel observed that a relief that is not claimed cannot be granted. He referred to P.C. Imoloame v. WAEC (1992) 11-12 SCNJ 127; (1992) 9 NWLR (Pt.265) 303; Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt. 167) 270 and Hon. Justice A. Ademola v. Chief Harold Sodipo & Ors. (1992) 7 NWLR (Pt.253) 251; (1992) 7 SCNJ 417.
Learned Counsel submitted that title to the said parcel of land, being one in urban area of Awka Capital Territory of Anambra State, is clearly not in issue as title is unequivocally vested by section 1 of the Land Use Act, 1978, in the Military Governor of Anambra State.
On issue 2, learned counsel further contended that since title is not an issue, Ifeacho and Nwadibie family cannot be a necessary party as they have no interest to protect in the subject-matter of the suit.
Learned Counsel referred to issue 3 as being purely academic and of little or no practical help in resolving the issue involved in this appeal. He declined to comment on this issue. He finally urged that the appeal be dismissed on the grounds that title was never in issue in the suit. The stated family is not a necessary party and has no interest to protect in the subject-matter of the suit and is not likely to be affected by the result of the claim whichever way it goes. It is here necessary to point out that Learned Counsel for the Respondent filed a further list of authority vide Order 7 Rule 4- Miscellaneous, Court of Appeal Rules, 1981. He therein cited the case of Alhaji Abdul-Salami Teniola and 5 Ors. v. Alhaji Mustapha Olohunkun (1999) 5 NWLR (pt.602) 280; (1999) 4 SCNJ. 92 at pages 99, 100, 103 and 104 to further depict the importance and purport of the certificate of occupancy which he feels the Respondent relies upon as his sole armour.
My starting point on issue 1 is that there are authorities galore that whenever a claim for trespass to land is coupled with a claim for an injunction, the title of the parties to such land in dispute is automatically put in issue. In Odukwe v. Ogunbiyi (supra) at page 123, Iguh, JSC put it clearly beyond peradventure as follows:
“Without doubt, whenever a claim for trespass to land is coupled with a claim for an injunction, as in the present case, the title of the parties to such land in dispute is automatically put in issue. See Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508 at 515. So, too, when two parties are on a piece or parcel of land claiming possession, the possession being disputed, trespass will be at the suit of that one who can show that title to such land is in him.”
In this matter, both the claim of the Respondent and the counter-claim of the appellants relate to trespass and injunction. As such, title is inexorably put in issue. Title is inextricably automatically put in issue. It will be tantamount to an eye wash to find otherwise. The position would have been different if it is trespass simpliciter. The authorities in Umeobi v. Otukoya (supra) at page 153, Anyabuisi v. Ugwunze (supra) at page 67. Badejo v. Sawe (supra) at page 321 are also very much in point as they speak the same language to arrive at the same conclusion.
Without any shred of doubt, title comes into play. The learned trial Judge goofed when he held that there is no issue or title in the case and that the family cannot be joined.
As for the 2nd issue relating to whether or not the Ifeacho and Nwadibie family of the appellants are necessary parties to the substantive suit, it is necessary to refer to Order 3 Rule 1 of the High Court Rules of Anambra State, 1988. It provides as follows:
“Any person in whom a right to relief exists may sue as plaintiff and any person against whom the relief exists may be sued as defendant.”
In Anabaraonye v. Nwadike (supra) at page 166, the Supreme Court pronounced that ‘a necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the question involved in the cause or matter.’ In Black’s Law Dictionary, fifth Edition, at page 750 reference is made to ‘joinder of parties’ which is said to be the act or uniting as parties to an action all persons who have the same rights or against whom rights are claimed, as either co-plaintiffs or co-defendants. Non-joinder is at page 751 defined as the omission to join some person as a party to a suit, whether as plaintiff or defendant who ought to have been joined. An omitted party may be added on motion of any party or on Court’s own motion. A necessary party is joined for the effectual and complete adjudication of all the questions involved in the case. The object is so that the party can be bound by the result of the litigation. The aim is to put an end to litigation and not to have two parallel proceedings over the same subject-matter. In Ige v. Farinde (supra) at page 300, the Supreme Court said:
“The aim is to put an end to litigation and not to have two parallel proceedings in which the self-same issue was raised, leading to different and inconsistent results. One other objective in ruling that a person is a necessary party is for him to be bound by the result of the litigation. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.”
In Atunrase v. Sunmonu (supra) at p. 162, the Supreme Court sounded a note or warning that ‘the courts have to be extremely careful and rather reluctant and slow in deciding the rights of persons not parties to a pending suit.
In Chinweze v. Masi (supra) at page 12 the Supreme Court further knocked the nail on the head when it pronounced as follows:
“Put in this naked form, it becomes as clear as crystal that the presence of the second defendant is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in this case. It will amount to judicial quibbling to refuse to join the second defendant. It is also the policy of the courts to avoid as much as possible a multiplicity of suits. Learned counsel for the appellants submitted that the second defendant should have come by way of third party proceedings or file a separate suit for specific performance. The simple answer to that submission is that the court has a duty to prevent the expensive luxury of having two separate suits where it can by joinder settle the whole matter in one action.”
From the unchallenged and uncontroverted affidavit evidence of the first appellant before the trial court, it is glaring that the family mandated the appellants to go and stop the Respondent’s work on the land. I have already found that title to the land is in issue. The family, no doubt, must be interested in the outcome of the suit. I strongly feel that the family is a necessary party to the suit and should be joined as a party so that all issues in contention can be decided in one fell swoop.
Mr. N. N. Onugha, Learned Counsel for the Respondent, appears to be dealing with the substantive matter for hearing, not point relating to joinder of parties. For he cited the case of Teniola and Ors. v. Olohunkun (supra) at pages 99, 100, 103 and 104; (1999) 5 NWLR (Pt. 602) 280 at p. 299 where it is stated that:
“where the Governor or the Minister (as in this case) had granted a statutory right of occupancy over a piece of land, within the area of his authority, all existing customary rights over that piece of land became extinguished, unless the statutory right so granted is set aside by a court of competent jurisdiction by due process of law. Entry into such a piece of land under the pretext that the person making the forcible entry has a Customary right to do so, is a clear actionable act of trespass.”
I strongly feel that the above position of the law, as stated, is a joker for the respondent herein, all things being equal, at the hearing of the substantive matter in the suit. But in the meantime, all necessary parties should be joined while the Respondent keeps a closer watch over his armour.
I need to touch the last issue briefly and I will be done. It relates to the effect of commencing and/or continuing a suit in a representative capacity. Mr. N. N. Onugha, Learned Counsel for the respondent, swept it aside with a wave of the hand. He thinks it is academic. But I feel otherwise since the learned trial Judge held that to allow the application would amount to the family supplanting the appellants as defendants in the suit. With due diffidence to the Learned trial Judge, such a view is an erroneous statement of the law which led him to arrive at a wrong conclusion and/or stand point. In Okotie v. Olughor (supra) at pages 225 – 226, the Supreme court made an elucidating pronouncement on the point as follows:
“In a representative action, both the named plaintiffs and/or defendants as the case may be and those they represent are parties to the action although the named representative plaintiffs and/or defendants are dominis litis until the suit is determined. And so for the purpose of initiating any process in the representative action, such process must be by and in the name or the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded … Put differently, when an action is instituted in a representative capacity and/or against persons in a representative capacity, such an action is not only by or against the named plaintiffs or defendants but are also by and against those the named parties represent who are not stated nominee. Those represented, so long as the named parties are in court, are also deemed present at the trial of the action through their representatives.”
In short, in a representative action, both named parties and those represented are all parties to the action. Those represented cannot supplant the dominis litis as erroneously stated by the Trial Judge.
In conclusion, I strongly feel that the appeal is meritorious. The appeal is accordingly allowed by me. I order that the Defendants/Appellants shall defend the suit before the trial Court and also prosecute their counter-claim in a representative capacity for themselves and on behalf of Ifeaeho and Nwadibie family of Isiagu-Amikwo Village, Awka. The Respondent shall pay N1,000 costs to the Appellants.
TOBI, J.C.A.: I agree with the judgment of my learned brother Fabiyi, JCA. Let me add this bit on the first issue. The respondent as plaintiff in the lower court, sued for trespass and injunction. The appellants as defendants asked for the same reliefs in their counterclaim. While the plaintiff claimed N1,000,000.00 for trespass, the defendants claimed half of that sum, which is N500,000.00. Apart from that difference in the amount claimed, both parties converged on the equitable remedy of injunction, albeit understandably from the standing of their cases.
In his Ruling of 15th May, 1998 the learned trial Judge said at page 55 of the Record:
“The Res in this case is the right to possession and lies on the claim for trespass. It is the possession of the plaintiffs and the possession of the Defendants that is in issue in this suit. The Nwadibie and Ifeacho families seek to join to protect title to the land, not a mere possession. The Res is different in each case. Thus, it is very clear that Ifeacho and Nwadibie families will not suffer any inconveniences by a refusal to stay proceedings to protect their claim for the title which is different from the Res in the substantive suit i.e. in the right to possession.”
It is the law that a claim for trespass is not dependent on a claim for declaration of title to the land as the former claim can succeed on proof of actual possession of the land. See Oluwi v. Eniola (1967) NMLR 339. Once the plaintiff proves exclusive possession, his action succeeds. See Ogbechie v. Onochie (1988) 1 NWLR (Pt. 70) 370; Udo v. Obot (1989) 1 NWLR (Pt. 95) 59; Ayinde v. Salawu (1989) 3 NWLR (Pt. 109) 297.
However, where as in this case, a party jointly claims for trespass and injunction, the issue of title is automatically in issue. See Kponuglo v. Kudadja 2 WACA 24; Ajani v. Ladepo (1986)1 NWLR (Pt. 28) 276; Odukwe v. Ogunbiyi (1998) 6 SCNJ 102; (1998) 8 NWLR (P.561) 339.
In Ogunfaolu and Another v. Mrs. Adegbite (1986) 5 NWLR (Pt. 43) 549, it was held that once title is made an issue in an action for trespass and injunction, as a result of competing claims by both the plaintiff and the defendant, the trial court has a duty to first determine the issue of title to make a specific finding on it.
Similarly, in Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745, the Supreme Court held that a claim for trespass and injunction postulates that the plaintiff is the owner of the land in dispute or has had, prior to the trespass complained of, exclusive possession of it and the issue must therefore be proved on who establishes a better title, the general onus of proving which lies on the plaintiff.
In the light of the above, the learned trial Judge, with the greatest respect, took a fairly miserly view of the matter, a view which materially resulted in his decision. It is for the above and the fuller reasons in the judgment of my learned brother that I too allow the appeal. I also award N1, 000 costs to the appellants.
OLAGUNJU, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Fabiyi, JCA., who has treated the three issues raised in the appeal eloquently and in detail with the conclusion and reasoning of whom I am in agreement. But I will like to make brief comments on Issues One and three for the purpose of elaboration.
On Issue One, the introduction of the Certificate of Occupancy over the land in dispute by learned counsel for the respondent who also made reference to the fact that the land is situated in an urban area of the state from which the appeal emanated are two phenomena that are at the root of the misconception about the dismissal of the appellant’s application to defend the action instituted by the respondent in a representative capacity. They became the twin myopic factors that were prowling along the corridor of the vision of learned counsel for the respondent who insisted with vigour that the document and the location of the land were the crux of this appeal. The Certificate of Occupancy and the situation of the land are matters which should be decided at the trial and not subject of a decision on an interlocutory appeal in order to avoid sliding into issue that would come up for trial at the hearing of the substantive action.
It is not necessary to speculate on how far the introduction of the two factors might have affected the attitude of the court below in dismissing the appellant’s application to defend the action by the respondent in a representative capacity. But as it will be made clearer by the conclusion to which Issue Three leads the respondent’s reliance on those two factors and the avoidance of a discussion of Issue Three by learned counsel for the respondent are tendentious as calculated to draw a red- herring across the trail.
That brings me to Issue Three on the inherent nature of a representative action and the scope of the opposition allowed to an application to sue or to defend an action in that capacity which learned counsel for the respondent bluffed as an academic question but which on an informed view or the law is the decisive issue that settles the controversy. In the leading judgment, my learned brother debunked the misconception by the learned trial judge that joinder of the appellants’ family to defend the action instituted against the appellants by the respondent could amount to supplanting the appellants by their family in aid of which he drew upon the view of the Supreme Court in Okotie v. Olugbor (1995) 3 SCNJ 217,225 -226, on the matter.
That view of the apex court on the nature of a representative action that repudiates the notion of supersession is not only instructive but also authoritative. But for a fuller assimilation of the nature of a representative action it is necessary to examine the portrait of that breed of action from another perspective, that is to say, from the point of view of the power of the court over an application to sue or defend an action in a representative capacity.
Rule 4 of Order 3 of the Anambra State High Court Civil Procedure Rules, 1988, on which the application before the trial court was made reads:
“Where more persons than one have the same interest in one suit, one or more of such persons may be authorized by the other persons interested to sue or to defend in such suit, for the benefit of or on behalf of all parties so interested.”
The provision of that rule is an ipsissima verba of the provision or rule 3 of Order IV of the Civil Procedure Rules of the High Court of the former Easter Nigeria as applicable in the defunct East-Central State except for the omission of the phrase ‘with the approval of the court’ from rule 3 reproduced above. The rule came for interpretation in Onyemeuze v. Okoli (No. 1), (1973) 3 ECSLR. (Part 1) 150, where Oputa, J., as he then was, said, at page 151, as follows:
” … the control the courts exercise over (the question of) the capacity in which an action is brought or defended is rather limited. The Court does not dictate nor does it direct nor has it any power to authorize, the parties to sue or defend in any particular capacity. Where, however there is a joint interest it is the duty of those persons jointly interested to authorize one or more of their group to sue or to defend in a representative capacity. All the court does under Order 4 Rule 3 High Court Rules is to approve the authority already given by the persons jointly interested.” (Italics Mine)
In an earlier decision on the interpretation of Order 4 Rule 3 or the old Supreme Court Civil Procedure Rules which was a replica of Order 4 Rule 3 of the Civil Procedure Rules of the High Court of the former Eastern Nigeria the West African Court of Appeal contrasted the provision of that rule with that of the parallel rule of the English Supreme Court and came to the same conclusion as Oputa, J., as he then was. See Adegbite v. Lawal, (1948) 12 WACA. 398, at page 399. See also Ubagu v. Okachi (1964) 1 All NLR. 36; and Tewotgbade v. Akande (1968) NMLR, 404.
It is clear from the interpretation of the rules of court which are in pari material with the provision of rule 4 of Order 3 of the Anambra State High Court Civil Procedure Rules, 1988, that when a plaintiff or a defendant applies to the court either to institute or defend an action in a representative capacity the duty or the court is to ascertain whether the applicant has been so authorized and, if so, to grant the application as a matter of course. After being so satisfied it is not open to the court or to the adversary to probe or challenge the right of that person either to sue or to defend the action in a representative capacity. As a corollary, in a representative action the challenge of the capacity in which the plaintiff is suing or the defendant is defending the action is limited to the challenge of his authority to institute or defend the action rather than an appeal to the court’s grace to use its fiat to override the decision to sue or defend in the party’s chosen capacity.
Applying those principles to the facts of the case on appeal the learned trial Judge is not shown to have exercised his discretion judicially and judiciously, i.e. by considering only matters which should be considered and ignoring matters which should not be considered, and, therefore, fell into a serious error.
The result is that by flaunting the Certificate of Occupancy before the trial court and making heavy weather of the Land Use Act and the situation of the land in dispute in an urban area learned counsel for the respondent had sold the dummy to the court below and without the intention to mislead that court the learned trial judge was cajoled to buy a pig in a poke.
For the foregoing reasons and the fuller reasons given by my learned brother in the leading judgment I too will allow this appeal. It is hereby ordered that the appellants shall defend the suit before the court below instituted by the respondent and prosecute their counterclaim in a representative capacity for themselves and on behalf of Ifeacho and Nwadibie family. I abide by the order of costs in the leading judgment.
Appeal allowed.
Appearances
Vin Nwabueze, Esq.For Appellant
AND
- N. Onugha, Esq.For Respondent
