LYCIOUS AMININAOWUKA & ORS v. RUFUS DEREGO & ORS (2011)

LYCIOUS AMININAOWUKA & ORS v. RUFUS DEREGO & ORS

(2011)LCN/4553(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of May, 2011

CA/PH/600/2008

RATIO

NOTICE OF APPEAL: NATURE OF A NOTICE OF APPEAL ; EFFECT OF A DEFECTIVE NOTICE OF APPEAL

A valid notice of appeal “can be likened to a key by which entry is gained into a house or an apartment, without the right key the door to the house or apartment remains shut” per Oguntade JSC in IKWEKI v. EBELE (2005) 15 WLR 42 at 69. The Notice of Appeal, it is now trite law is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate court will lack jurisdiction to entertain it. see UWAZURIKE V. A.C. FED. (2003) 8 NWLR (pt.1035) 1. The appeal would then be struck out. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS (1999) 9 NWLR (pt. 618) 187. PER T. O. AWOTOYE, J.C.A.

INTERPRETATION OF STATUTE: THE INTERPRETATION OF PROVISIONS OF ORDER 6 RULE 2(1) OF THE COURT OF APPEAL RULE 2007 AND 243(A) OF THE 1999 CONSTITUTION AS IT RELATES TO PROVISION OF THE NAMES AND ADDRESSES OF ALL PARTIES DIRECTLY AFFECTED BY THE APPEAL IN THE NOTICE OF APPEAL

REPRESENTATIVE ACTION: WHO IS THE REAL PLAINTIFF IN A REPRESENTATIVE ACTION

This question was considered by the Supreme Court in LADEJOBI v. OGUNTAYO (2005) 7 WRN 22 at 41 where Uwaifo JSC; in delivering the lead judgment held thus:- “It is right to say that when an action has been instituted by representatives of a family or a ruling house either in land matters or chieftaincy matters as appropriate and facts are pleaded and reliefs are claimed indicating that it is in respect of the representative or corporate interest in the subject matter then the real plaintiff or plaintiffs should be seen as the family or ruling house AND Not the individuals who have sued in a representative capacity such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should, therefore, not be any confusion as to who is the entity suing. See OTAPO V. SUNMONU (1983) 2 NWLR (pt. 58) 587.” See also the decision of this court in EZEKIEL ISAIAH AND ORS V. EMMANUEL ASSOR & ORS (unreported) in Appeal NO. CA/PH/329/2007 delivered on 3/3/2011. PER T. O. AWOTOYE, J.C.A.

PROOF TITLE TO LAND: WHAT A PARTY RELYING ON TRADITIONAL HISTORY IN PROOF OF HIS TITLE TO THE LAND IN DISPUTE MUST PLEAD AND PROVE

The party who relies on traditional history must plead and prove. (i) who founded the land (ii) how the land was founded (iii) The particulars of the intervening owners through whom he claims. PER T. O. AWOTOYE, J.C.A.

DECLARATION OF TITLE TO LAND: WHETHER IN A CLAIM FOR DECLARATION OF TITLE TO LAND THE ONUS OF PROOF IS ON THE PLAINTIFF

INTERFERENCE WITH FINDINGS OF FACT OF A TRIAL COURT: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF FACT MADE BY A TRIAL COURT

Now an appellate court will not interfere with the findings of fact made by the trial court where there is sufficient evidence in support of such findings and where there is no substantial error apparent on the record of proceedings that has led to miscarriage of justice or violation of some principles of law and procedure. See SHITTU V. EGBEYEMI (1996) 6 NWLR (Pt.457) 650; BADUGA v. THE STATE (1996) 7 NWLR (Pt.640)279. PER T. O. AWOTOYE, J.C.A.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. LYCIOUS AMININAOWUKA
2. ADOLPHUS ELIJAH
3. ALBERT AJOKU
4. SYLVANUS ELIJAH
(For themselves and on behalf of Gudi House of Abuloma). Appellant(s)

AND

1. RUFUS DEREGO
2. FRIDAY CHARLIE
3. IGBIKIOWUBO WILFRED
(For themselves and as representative of MBO-PAPAMIE HOUSE IN Abuloma) Respondent(s)

T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal and cross-appeal lodged against the judgment of Rivers State High Court presided over by Hon. Justice T.S. Oji which was delivered on 19/5/2008. The appellants who were the defendants at the court of trial appealed against the judgment by a Notice of Appeal dated 21/7/2008 which was subsequently, amended by order of court.
The cross-appellants also cross-appealed vide the Notice of Appeal filed on 18/8/2008.
Parties exchanged brief of argument. Before going into the briefs I wish to point at that the appellants in this case as listed out in the appellants notice of appeal who are supposed to be defendants in the lower court are different from the defendants in the lower court for the following reasons.
(1) The defendants in the lower court as per the record of appeal are:
(i) Chief Elliot T. Gudi (JP)
(ii) Lycious Amnina Owuka
(iii) Adolphous Elijah
(iv) John Batubo
(v) Johnson Gudi (deceased)
(vi) Albert Ajoku
(vii) Eglington Gudi
(viii) Syvanus Elijah
(for themselves and on behalf of Gudi House of Abuloma)
(2) The defendant defended in a representative capacity. But their names were listed on the Notice of Appeal in their individual capacity.
(3) So also the names of the defendants as listed on the Notice of Appeal differ from the names on the process in the lower court.
In the notice of appeal the persons directly affected by the appeal are:-
(i) Rufus Derego
(ii) Friday Charlie
(iii) Igbikiawubo Wilfred.
The family (Gudi House of Abuloma) is excluded.
The same applies to the Cross-Appellants Notice of Appeal where the real plaintiffs and the defendants in the lower court have been excluded.
There is need to pause at this stage to consider the consequence of the above.
A valid notice of appeal “can be likened to a key by which entry is gained into a house or an apartment, without the right key the door to the house or apartment remains shut” per Oguntade JSC in IKWEKI v. EBELE (2005) 15 WLR 42 at 69. The Notice of Appeal, it is now trite law is the foundation and substratum of every appeal. Any defect therein will render the whole appeal incompetent and the appellate court will lack jurisdiction to entertain it. see UWAZURIKE V. A.C. FED. (2003) 8 NWLR (pt.1035) 1. The appeal would then be struck out. See A.G. FEDERATION V. GUARDIAN NEWSPAPERS (1999) 9 NWLR (pt. 618) 187.

Order 6 Rule 2(1) of the court of Appeal Rule 2007 specifies the mandatory contents of a notice of appeal to include “the exact nature of the relief sought and THE NAMES AND ADDRESSES OF ALL PARTIES DIRECTLY AFFECTED BY THE APPEAL which shat be accompanied by a sufficient number of copies for service on at such parties, and it shall also have endorsed on it an address for service.”
Have the notice of appeal and the notice of cross-appeal in this appeal complied with the provision of Order 6 RULE 2 (1) of the court of APPEAL RULES?
who are parties directly affected by the appeal? They are the parties to the civil proceeding at the lower court.
Section 243(a) of the 1999 Constitution puts it this way “Any right of appeal to the court of Appeal from the decisions of the Federal High Court or a High Court conferred by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto.”
Any other party in an appeal is an Interested affected party and is not directly affected by the appeal in which case such a person requires leave of court to appeal against such decision. see section 243(a) of the 1999 Constitution which continues thus “…. Or with the leave of the Federal High Court or the High Court or the Court of Appeal at the instance of any other person having an interest in the matter….”
It follows from the above that a party directly affected by an appeal as stipulated under Order 6 Rule 2(1) of the rules is a party who qualifies to institute an appeal against the decision without leave of court i.e. a party to the proceeding in the lower court. It therefore seems clear that Order 6 Rule (2) (c) of the Rules requires that the names of all parties to the proceeding in the lower court and their respective addressee be stated in the Notice of Appeal for it to be valid.
The next question to consider is, in an action instituted in a representative capacity, who are the real parties?
This question was considered by the Supreme Court in LADEJOBI v. OGUNTAYO (2005) 7 WRN 22 at 41 where Uwaifo JSC; in delivering the lead judgment held thus:-
“It is right to say that when an action has been instituted by representatives of a family or a ruling house either in land matters or chieftaincy matters as appropriate and facts are pleaded and reliefs are claimed indicating that it is in respect of the representative or corporate interest in the subject matter then the real plaintiff or plaintiffs should be seen as the family or ruling house AND Not the individuals who have sued in a representative capacity such individuals appear on record as suing for the class or family or ruling house (as in this case) of which they are members. There should, therefore, not be any confusion as to who is the entity suing. See OTAPO V. SUNMONU (1983) 2 NWLR (pt. 58) 587.” See also the decision of this court in EZEKIEL ISAIAH AND ORS V. EMMANUEL ASSOR & ORS (unreported) in Appeal NO. CA/PH/329/2007 delivered on 3/3/2011.
In the light of the above it is clear that the family of GUDI HOUSE OF Abuloma House of is not the appellant as it is not listed as being directly affected in this appeal. It also means the family of Mbo – papamie House of Abuloma is not the respondent and the two families are not directly affected by the appeal, as contained in the Notice of Appeal and Notice of cross-appeal.
Similarly the family of Mbo-papemie House of Abuloma is not the cross-appellant in this cross- appeal and GUDI House is not the respondent and are not listed as parties directly affected by the cross-appeal.
It seems to me that the individual members who sued in representative capacity on behalf of their respective families are not themselves parties but interested parties while their respective families are the real parties to the action.
If the individual members representing the family withdraws from the action as in OKAFOR v. NWUDE (2001) 3 WRN 105 at 121 – 122 or die as in RE EGBO (2002) 10 NWLR 41, the OTAPO action is not vitiated. see also OTAPO V. SUMMONU (1987) 2 NWLR (pt. 58) page 587 at 59, AFOLABI V. ADEKUNLE (1983) BSC 98. In which case in my respectful view, such individual members require leave of court to appeal against such decision in an action instituted or defended in a representative capacity. This has not been done in this appeal. This to my mind vitiates the cross-appeal.
The proceeding at the lower court now on appeal was afflicted by a cocktail of errors. It seems the errors trailed the proceeding to this court unfortunately.
The errors appear to have strange ability of becoming invisible to the experienced perusing and meticulous eyes of learned senior counsel on both sides.
In case I am wrong I shall now consider the submissions of counsel as per their respective briefs of argument.
In the appellants brief of argument Oso SAN learned senior counsel formulated 3 issues for determination as follows:-
“(1) whether the learned that Judge was justified when she considered Suo motu the competence of the Appellants Amended statement of Defence and counter claim No. 2 filed in this suit and to have struck out the said pleading without affording the Appellants a hearing on the point. (Ground 10 of the grounds of appeal).
(2) whether the learned trial judge properly evaluated the traditional history of the parties in the case before arriving at her decision preferring the Respondents traditional history to that of the Appellants. (grounds 1, 2,4,5,9, 11, 12, 13, 14, 15, 16, 18, 19,20 and 21 of the grounds of appeal).
(3) whether the learned trial judge was justified when she declined jurisdiction to determine the Appellants counter claim concerning the area of the land in dispute called Turuja swamp on the ground that that area of land exceeded the area of land claimed by the Respondents.
(grounds 17 of the grounds of appeal).”
Learned senior counsel urged the court to allow the appeal, set aside the entire judgment except the portion of the judgment which granted the area of the land verged BLUE in Exhibit P. to the appellants and to dismiss the Respondent’s claim because:
(1) The learned trial judge was not justified in law when the suo motu and without hearing the appellants first struck out the last pleading filed by the appellants. He further submitted that learned counsel was also not justified to have based the appellant’s case on pieces of previous pleadings that appellants had amended. He cited the following case.
NSIEGE V. NGBEMENA (2007) ALL FWLR (pt. 372) 1769 at 1782 – 1783.
(ii) OJU LOCAL GOVERNMENT V. INEC (2007) ALL FWLR (Pr 383) 101 at 125.
(iii) DALKO V. UNION BANK OF NIGERIA PLC (2003) FWLR (PT. 180) 1500 at 1534 and other cases.
Learned senior counsel on issue (2) submitted that the learned trial judge did not properly evaluate the traditional history of the parties before arriving at her decision whereby she preferred the Respondents traditional history to that of the appellants where there was consensus that Abuloma Town or community was founded by the common ancestor of the parties called OBULOM Learned Senior counsel referred to the following cases among others.
(i) OKANHURO V. KPAJIE (1992) 2 NWLR (pt.226) 633 at 655.
(ii) ABUBAKAR V. YARADUA (2009) ALL FWLR (pt.457) 1 at 139.
(iii) ODUTOLA V. SAIYA (2008) ALL FWLR (pt. 400) 780 at 793.
On the 3rd issue learned senior counsel submitted that the learned trial judge was not justified not to have determined the entire counter claim of the appellants which included a portion of the land called Turuja Swamp or land and which was duly proved before her. He further submitted that the learned trial judge ought not to have declined jurisdiction to determine the counterclaim holding that the extent of the land counterclaim exceeded the area of land claimed for by the Respondents in their claim in view of the position of the law which was that a counterclaim was an independent claim which needed not be related or connected to the Respondents, claim, He referred to the following cases.
(i) LEWIS v. UBA (2006) 1 NWLR (pt. 962) 546 at 566
(ii) MUSA v. YUSUF (2006) 6 NWLR (pt. 977) 454 at 475.
In the Respondents’ brief/cross-appellants learned brief senior counsel for the Respondents adopted the issues as formulated by the appellants.
He urged the court to dismiss the appeal and allow their cross-appeal (which I will come to later in this judgment) for the following reasons:-
(1) The learned trial judge properly raised and determined the issue of competence of the amended statement of defence and counterclaim No. 2 suo motu and miscarriage was thereby occasioned.
(2) That the learned trial judge rightly declined jurisdiction to entertain the counterclaim of the plaintiffs in respect of Turuja Swamp as the Abuloma community the areas of the said swamp were not made parties to this suit and the Respondents were not in possession and had no claim over the said swamp.
(3) That the learned trial court having found that the appellants evidence of traditional history inconclusive and unreliable had to dismiss the counterclaim and could not in law have relied on the same unreliable evidence to declare title to that portion of the land.
(4) That the learned trial judge proceeded under the wrong impression that the 2nd claim/relief sought by the claimants affected the interests of the wider Abuloma Community who were not parties and thereby failed to evaluate the evidence, pafticularly Exhibit p2.
(5) That the lower court ought to have struck out the 2nd claim/relief having found that proper parties were not before the court instead of an outright dismissal.
Learned senior counsel relied on several judicial authorities among which are:-
(i) OJUKWU v. OBASANJO (2003) FWLR (pt. 182) 1766 at 1807.
(ii) EMEGOKWE V. OKADIGBO (1973) 4SC 113 at 117 among others which shall be considered in this judgment, The appellant also filed a Reply brief as well as Cross-Respondent’s brief where two issues were formulated viz:-
“(1) Whether the learned trial judge was justified to have granted the cross- Respondents the right
of occupancy to the piece of land verged Blue in Exhibit P1
(2) Whether the learned trial judge was justified when she dismissed the 2nd claim/relief of the cross-appellants.”
Learned senior counsel after reviewing the facts of the case urged the court to discountenance the cross-appellants issue No.1 and the arguments canvassed in respect thereof and answer cross-Respondents issue No.1 in the affirmative and hold that the learned trial judge declared was justified when she declared title on the cross-Respondents over the area verged blue in Exhibit P1.
On issue 2, counsel for the cross-Respondent urged the court to hold the cross-Appellant’s 2 and to answer the cross- respondent’s issue No. 2 in the affirmative and hold that the trial judge was justified, when she dismissed the 2nd claim/relief of the cross – appellants.
The cross-appellants also filed a reply brief urging the court to discountenance the arguments of the cross-respondents and allow the cross-appeal.
I have carefully considered all the submissions of learned senior counsel on both sides as well as the contents of the record of appeal before me.
Did the learned trial judge properly evaluate the traditional history of the parties in arriving at her decision?
In resolving this issue one needs to first identify the relevant pleadings which defined the confines of the evidence before the trial court.
(1) The plaintiffs filed amended statement of claim on 17/12/99 – pages 162- 166 of record of appeal.
(2) The defendants in response filed further amended statement of defence on 13/5/2005 – see pages 239 – 250 of record of appeal.
(3) The defendants later, by their motion on notice filed on 16/8/06 sought and obtained leave of court to amend paragraph 18 of the further amended statement of defence and counter-claim dated 13/5/2005.
(4) Amended statement of defence and counter-claim No. 2 was consequently filed see pages 290 – 301 of record of Appeal.
(5) The plaintiffs fired amended Reply and defence to counter-claim No.2 on 22/1/2007.
The contention of the plaintiffs was that the land in dispute (OMANI EKEREMA – OKUNOKURUOWULE) formed part of the land original founded by Mbo the founder of Mbo -papamie House several hundred years ago through first settlement on the said land (daforestation). It was their contention that under Abuloma native law and custom Mbo, (plaintiffs, great ancestor) become the owner of the land through deforestation and being the first settler on it.
Paragraph 5 – 8 of the amended statement of claim of the plaintiffs are very pertinent. They read as follows:
“(5) The said OMANIEKEREMA-OKUNOKURUOWULE land (land – in – dispute)
forms part of the land originally founded by Mbo the founder of Mbo-papamie House several hundreds of years ago though first settlement on the said land (deforestation). In accordance with Abuloma native law and custom, Mbo (plaintiffs’ great ancestor) became the owner of the rand in dispute through deforestation and being the first settler thereon.
(6). Mbo in his life time set aside the land in dispute for farming purposes and the same was extensively cultivated by Mbo and his entire household. Mbo begat Papamie, Papamie begat Nda (Male) Alangeibi and Abugerereke (both women), Abugerereke in turn begat Charles Bekeni Papamie under Igwa system of customary marriage, under which the issues of the marriage belong to their mothers’ family.
The descendants of these children of Mbo now constitute the present Mbo-Papamie House of Abuloma, headed by the is Plaintiff.
(7) Upon the death of Mbo, the land in dispute devolved upon the Mbo-Papamie House as her exclusive property in accordance with the native law and custom of Abuloma and since the said devolution, the Mbo-Papamie House has maintained a long and unbroken possession of the land in dispute inclusive of the areas verged yellow on the survey plan and exercised maximum acts of ownership over the said land by farming on it, cutting economic tress on it, leasing out portions for use as borrow Pit, stock-pilling of dredged sand and for farming.
(8) The plaintiffs say that in exercise of the plaintiffs right ownership over the land in dispute, their ancestors granted portion of it (i.e. the area verged Blue on the survey plan) to the defendants family for farming purposes only and on temporary basis.”
The plaintiffs therefore claimed as per paragraph 21 of their amended statement of claim thus:
i) A declaration that the land in dispute known as OMANIEKEREMA-OKUNOKURUOWULE lying and situate between the Abuloma Traditional burial ground (originally owned by the Pina House and granted to the Abuloma Community for burial purposes) and the Obu House land is the property of the Mbo House of Abuloma represented by the Plaintiffs.
ii) A declaration that under the Resolution on water fronts signed by the chiefs of Abuloma Community including the 1st Defendant, Plaintiffs are entitled the to 20% of the proceed accruing from the lease or use of the sand-filled area of Turuja front adjoining the land in dispute.
iii) N3,000,000.00 (Three Million Naira) being damages for trespass committed by the Defendants on the plaintiffs land in dispute.
iv) An order of perpetual injunction restraining the defendants by themselves or by their servants,
agent or privies from continuing to trespass on the plaintiffs land in dispute or in any manner interfering with the plaintiffs rights over the adjoining Water Front.
In their further amended statement of defence the defendants in paragraphs 3 -4 denied paragraphs 5 – 8 of the amended statement of claim of the plaintiffs and further averred as follows:
“3. The defendant deny paragraphs 5 and 6 of the statement of claim and put the plaintiffs to the strictest proof of same. Further, defendants aver as follows:-
(a) MBO, the ancestor of the plaintiffs House did not settle at Abuloma but at a place originally called Osouogu which is being settled on by the people of OZUBOKO village. It is about 4KM from Abuloma. At the time MBO settled at OSOUOGU, the ancestors of the defendants and others such as Gobi and Gosu had long settled on and founded Abuloma.
4. Further to paragraph 4 above, the defendants aver that the Mbo Papamie House in Abuloma came about the following manner:-
i. The entire Abuloma community was originally founded, owned and settled on many many years ago by the parties (plaintiffs and defendants) ancestor, known as and called OBULOM from whom the name of Abuloma derived.
ii. OBULOM the commo ancestor of the parties migrated from IKIBIRI town in EPETIAMA Clan in the modern day Yenagoa Local Government Area of Bayelsa State. He first of all stopped and settled at OBOMOTU south of Port Harcourt and at OKEIN-ODO i.e. Old Abuloma town, which is now known as Rainbow town of today in the Port Harcourt Local Government Area of River State.
iii. while OBULOM was staying at OKEIN-ODO (present day Rainbow town) his children; twelve of them i.e. GOBI, GOSU, ELIBHIA (GUDI) OTOPO, EKPELI, ADDA, IGBILE, GEBU, PINA, OBU, GEIN AND MBO all moved inwards into the water-fronts.
iv. In the course of the movement, MBO their ancestor of the plaintiffs stooped at OSUO-OGU which is the present day OZUBOKO. There he lived and died.
v. It was AGBANI, one of the sons of GUDI, who went to OSUO-OGU (OZUBOKO) during his hunting expedition and found that MBO was already dead and buried. Consequently, he brought MBO’s daughter OLUNWERE to the present day Abuloma and contracted an IGWA marriage with her.
vi. Godu is one of the ancestors of Gudi House.
The name “Gudi” is a corruption of the said name.
vii. Agbani the second son of Godu, has an “Igwa” marriage with the daughter of Mbo called olunwere. They begot Papamie who belonged to his mother Mbo’s family in accordance with Okrika customary law and Abuloma in particular.
viii. Papamie grew up in the Godu House whose members gave him a portion of their land to settle on. This very small piece of rand is situate between the lands of Godu House and Gosu House in Abuloma. There are only 4 houses in the said small portion of land as at the time the suit was filed, but lately (2003) another house had been built. And it is the only place occupied by the members of the plaintiffs family in Abuloma. The Godu House also granted papamie and his family members land to farm on.
ix. Papamie later married a wife and they had a son called Nda and two daughters named Alinge and Abugereka.
x. Nda married a wife under the “Igwa” system from Obu House in Abuloma and begot three sons and three daughters. One of the sons was Festus Bipiamina obu who later became the Chief of Obu Houss. The dais Festus Bipiamina Obu was the 3rd defendant between Gudi House v. Abuloma community before the Koniju council of chiefs arbitration panel and was a member of Mbo House until his death in 1989. Nda himself died about 1949.
xi. Alinge, the first daughter of Papamie married a man from Gosu House of Abuloma and had a son called Orikibo who died young in the 1920’s without any issue. He died during the building through communal labour of the St. John’s Anglican Church at Abuloma. Alinge later married one Omo from Obut House and had a son called Nkuma who died in 1976.
xii. Abugereka, the second daughter of Papamie married on Ekpoki Obietibbara from Gudi House. Their children include Bekeni and Polo. Bekeni (also called Charlie) die only in 1976. He is the father of the 3rd plaintiff herein. Polo is the mother of the 4th plaintiff on record. She was alive up to 2001.”
In resolving the conflicting traditional history adduced by the parties the principle in KOJO II V. BONSIE (1957) 1 WLR 1223 which is that the best way is to test the traditional history by reference to the facts in recent years as established by evidence and see which of the two competing histories is more probable, must be borne in mind. See also ODOFIN V. AYOOLA (1984) 11 SC. 72; BALOGUN V. AKANJI (2005) 10 NWLR (pt. 933) 94, OKOKO V. DAKOLO (2006) 14 NWLR (pt. 1000) 401.
The party who relies on traditional history must plead and prove.
(i) who founded the land
(ii) how the land was founded
(iii) The particulars of the intervening owners through whom he claims.

It is also settled that in a claim for declaration of title to land the onus is on the plaintiff (and in case of counter claim, the counter claimant) to prove his claim upon DADA v. DOSUNMU (2006) 18 NWLR (pt.1010) 134.
I shall view the facts of this case in light of the above.
The confines of evidence are defined by the pleadings filed.
By a motion on notice filed on 16/8/06 the defendant/counterclaimants sought to amend their further amended statement of defence and counter-claim by amending paragraph 18 of their further amended statement of defence and counter-claim dated and filed on 13/5/2005. The proposed amended statement of defence and counterclaim was not exhibited in the supporting affidavit. After hearing the parties he learned trial judge granted the application on 23/11/06.
The plaintiffs with leave of court in response filed amended reply to the amended statement of claim (2).
However, when the defendant counterclaimants filed the amended process on 24/11/06 they amended not only paragraph 18 of the process which the court ordered but also paragraphs 4 and 5 (by removing subparagraph 5C). This was clearly outside the scope of the order of the trial court and in its breach. This is an improper use of the judicial process. It is an abuse of court process. see SARAKI v. KOTOYE (1992) 11/12 SCNJ; OGOEJEOFO V. OGOEJEOFO (2006) 3 NWLR (pt. 966) 205. It makes the process, as it were, leprous and should have been completely disregarded. But the learned trial judge graciously struck out the offending process and allowed the defendants to file proper amendment of their pleading and “in the interest of justice” make use of the unfiled” paragraph 18 granted pursuant to the earlier order of court for the purpose of the judgment.
There is nothing on record to show that the order of court to file fresh proper amended statement of defence 2 was ever complied with.
It does appear to me settled law that parties are bound by their pleadings. See ARNOBI V. AMOBI (1996) 1 NWLR (PT. 469) 638; ALLIED BANK (NIG.) LTD v. AHUBUEZE (1997) 6 NWLR (PT. 509) 374.An unfiled pleading is no pleading and evidence led in respect of it goes to no issue. See ARNOBI V. AMOBI (supra).

In the light of this it is my respectful view that any evidence led that
“18 the defendants became, the titular owners of the disputed land by virtue of inheritance from their progenitor, one of the 12 sons of OBULOM who inherited the same from his father OBULOM as his share of the land originally founded and deforested by OBULOM. OBULOM shared this land before his death to each of his children. In his lifetime, ELIBHIAL was farming, fishing and hunting on the land without any let or hindrance from any body including the present plaintiffs and their ancestors before them.”
Goes to no issue and had to be rejected. As at the time the judgment was delivered the last valid process filed by the defendants/counterclaimant was the further Amended Statement of defence and counterclaim filed on 13/5/05. It is also my respectful view that if the Amended Statement of Defence and counterclaim irregularly filed by the defendants is disregarded, the amended Reply to amended statement of defence and defence to counterclaim No 2 filed in consequence of the irregular process also has to be disregarded.
Now to the evidence. Both parties relied on traditional history to prove their respective cases. The learned trial judge after considering the evidence of both parties concluded as follows:
“In conclusion therefore it is my finding that the evidence of plaintiffs in their case has merit and supports their claim.
1. The evidence of proof of title favours the plaintiffs case as defendant’s history has broken down. Based on several authorities there is infact no need to establish any more methods of proving title like acts of possession e.t.c. see the cases of Bolaji v. Akanji(supra) and Oyadere V. Keji (supra).
2. The contradiction and inconsistency of the evidence of DW3 clearly negate a declaration in defendants favour concerning the area verged green in Exhibit P1 excluding the area verged blue.
3. It is clear that the area in dispute was not part of the Koniju settlement (arbitration) or PHC/239/89 except for a negligible portion of about 15 meters.
4. The land in dispute is not the Turuja swamp which purportedly owned by Abuloma community if at all, same is not before me for determination.
5. The traditional history evidence of the plaintiffs is credible having no gaps or embarrassing questions/doubt.
6. The survey plans showing the borrow puts and the evidence of DW3 clearly support plaintiffs claim as to the exact area in dispute.
7. The evidence of acts of ownership, concentrated on Turuja swamp and not the exact land in dispute except for the area leased to Golden Somiar which clearly ousts the court’s jurisdiction to deal with same.”
Now an appellate court will not interfere with the findings of fact made by the trial court where there is sufficient evidence in support of such findings and where there is no substantial error apparent on the record of proceedings that has led to miscarriage of justice or violation of some principles of law and procedure. See SHITTU V. EGBEYEMI (1996) 6 NWLR (Pt.457) 650; BADUGA v. THE STATE (1996) 7 NWLR (Pt.640)279.
I have gone through the reasoning and findings of the learned trial judge on the evidence of traditional history adduced by both parties. I find his reasoning and conclusion unassailable.
The traditional evidence of the plaintiffs appears more probable than that of the defendants. There was no break in their traditional history. For instance who founded the land in dispute?
The plaintiffs pleaded and adduced evidence that it was MBO, the founder of MBO-PAPAMIE HOUSE that did several hundreds of years ago through deforestation. They pleaded how the land devolved on them and gave evidence that the descendants of MBO now constituted the present MBO-PAPAMIE HOUSE of ABULOMA headed by 1st plaintiff.
The defendants on the other hand pleaded that OBULOM, the common ancestor of both parties settled at OKEIN-ODO – old Abuloma town, and that he had twelve children; GOBI, GOSU, ELIBHIA(GUDI), OTOPO, EKPELI, ADDA, IGBILE, GEBU, PINA, OBU, GEIN and MBO. They again pleaded that OBULOM founded and settled the entire ABULOMA community. They pleaded that ELIBHIA OR GODU OR GUDI i.e the same person was one of their ancestors, but in paragraph 18 of their pleadings they stated that they were title owners of the land in dispute through original progenitor -ELIBHIA or GODU or GUDI. However in paragraph 19 of their Statement of Defence and counterclaim ELIBHIA who had earlier been referred to as GODU was described as the father of GODU. See page 249 of record of appeal.
But in the evidence of DW3, ADOLPHUS ALAIBOGHEINE ELIJAH, it WAS ELIBHIA who gave birth to GODU (see page 393 of record). This confusion is on their progenitor from whom they claim to have become titular owners. This is just one of the examples of confused traditional history presented by the defendants. The traditional history adduced by the defendants is too convoluted to be true. I am therefore in full agreement with the learned trial judge when he rejected the traditional history of the defendants/counter-claimant.
The plaintiffs/cross-appellant in their cross- appeal attacked the part of the judgment of the lower court granting the defendants right of occupancy in respect of that piece of land or parcel of land verged blue in Exhibit P1 lying and situate at Abuloma.
At this juncture there is need to ask, what is Exhibit P1? Exhibit p1 is the survey plan of plaintiffs tendered through PW, Amos Opuaji on 29/1/2004 (see page 325 of record). It is survey Plan No TAO/(RIVab) 019 – LD.
The area verged blue on the said plan is “the portion of Mbo farmland granted to the defendants’, see the key to the plan titled LEGEND and the remark on the area verged blue on the said plan which reads “Mbo farmland granted to Godi House by Mbo ancestors on good relationship.”
The meaning is, on the plaintiffs own showing, on the plan prepared and tendered by them, the area verged blue on Exhibit P1 had been granted to the defendants by the plaintiffs’ ancestors. Exhibit P1 was tendered by plaintiffs own witness. The finding of the lower court on the area verged blue on exhibit P1 is in my respectful view correct and cannot be faulted.
Now to the respective claims of the parties on Turuja:
The plaintiffs in paragraph 21(ii) of their amended statement of claim claimed in respect of Turuja Water Front as follows;
“21(ii) A declaration that under the Resolution on Water Fronts signed by the Chiefs of Abuloma community including the 1st Defendant, the plaintiffs are entitled to 20% of the proceed accruing from the lease or use of the sand-filled area of Turuja water front adjoining the land in dispute.”
The plaintiffs relied on Exhibit P2 which contained the resolution of Abuloma chiefs made on 3/2/96 on water fronts, mangroves, rivers, creeks, or dykes at Abuloma.
Neither the plaintiffs nor the defendants were parties to the resolution as it was a resolution of the council of chiefs. No wonder, Dw3 in his evidence under cross-examination said Exhibit P2 was not effective as the family was not consulted. See page 400 of record of appeal. It does appear Exhibit P2 was quicksand on which the plaintiffs could not build the house of its case on Turuja swamp. Since the plaintiffs place reliance solely on Exhibit P2 to prove its case and Exhibit P2 was clearly impotent in respect thereof, the plaintiffs therefore failed to prove that they were entitled to a declaration under the Resolution signed by Chiefs of Abuloma community that they were entitled to 20% proceeds of the sand-filled area of Turuja water fronts.
What is more, exhibit P2 was not tendered by the maker and oral evidence of its contents could not be adduced and tested in court. Not much assistance could therefore be derived from Exhibit P2. See ALAO V. AKANO (2005)11 NWLR (Part 935) 160. The lower court was therefore right to have dismissed the part of the plaintiffs’ claim.
The defendants/counterclaimants also in their counterclaim claimed to be entitled to the right of occupancy in respect of that piece of land at Abuloma known as TURUJA OKUNOKU OWULE.
The learned trial judge considered this aspect of their claim on page 573 of record found that the area was outside the area in dispute between the parties and declined jurisdiction.
Learned counsel for the appellants/cross-respondents who were defendants/counterclaimants in the trial court submitted that the above finding of the lower court was not justified in law because the counterclaim was a separate and independent action he cited LEWIS V. UBA (2006) 1 NWLR (Part 962) 546 at 566.
He submitted that the learned trial judge ought to have either upheld or dismissed the counterclaim. He cited MUSA V. YUSUF (2006) 6 NWLR (PT. 977) 454 at 475. He finally urged this court to invoke section 15 of the Court of Appeal Act and determine the counterclaim in favour of the Appellants.
First, I must agree with learned senior counsel for the appellants that a counter claim is quite distinct and independent from the statement of claim. See USMAN V. GARKE (2003) 14 NWLR (PT. 840) 261; GOWON V. IKE – OKONGWU (2003) 6 NWLR (pt. 815) 35.
But a close perusal of the judgment of the court below shows that the learned trial judge also declined jurisdiction because the Turuja Swamp was a subject matter of PHC/239/01 where Abuloma Community, as opposed to the parties in this case, claimed ownership.
Learned senior counsel for the Respondent/cross-appellants replied in his brief that courts would not grant a relief or make an order that would affect the right or interest of a person or body that was not a party to the case and who was never heard in the matter. He cited ALAMIEYESEIGHA V. JEIWA (2002) FWLR (PT. 96) 552 at 557. I completely agree with him on the submission. With due respect to learned senior counsel for the appellants I am unable to see the learned trial judge erred on this matter. It is not in dispute that suit No. PHC/239/01 was in respect of the area
of land claimed by the appellants in that counterclaim. In fact Exhibit D defendants’ plan made reference to PHC/239/01 in its legend. Suit No. PHC/239/01 was a case not yet decided.
Again in paragraph 12 of the Reply to the Amended Statement of Defence the plaintiffs/cross-appellants averred that Abulooma Community in suit No. PHC/283/89 sued the defendants/counterclaimants/appellants on the same portion of land. They further averred that the defendants appeal to Abuloma Community and consequently the case withdrawn.
Also Dw3 himself on page 385 of record of appeal confirmed that Abuloma community including the plaintiffs in this case laid a claim to the land in dispute.
It seems clear from all the above that for the effectual and complete adjudication of the counterclaim of the defendants, Abuloma community ought to have been joined as a party. See ADISA V. OYINWOLA (2000) 6 SC (PT. II) 47. See also UKATTA V. NDINGEZE (1997) 4 NWLR (PT. 499) 251; AKINLOLA S. IGE V. FARINDE (1994) 7 NWLR (PT. 354) 42; ENANBOROYE V. NWAKAIHEN (1997) 1 SCNJ 161 – 166 and UKU V. OKUNAGBA (1974) 3 SC 35.
The learned trial judge therefore rightly declined jurisdiction to hear the counter claim on Turuja Okunu okoruwule.
One more point to touch. Was the learned trial judge right to have struck out the Amended Statement of Defence(2) and counter claim filed in defence of the order of court suo motu? The answer, in my respectful view, having earlier held that the process was an abuse of court process, is yes.
In the light of the above I resolve all the issues formulated by the appellants in their brief of argument against the appellants.
I also resolve all the issues formulated by the cross-appellants against the cross-appellants.
I would have dismissed the appeal and cross-appeal if not for my aforestated decision that the appeal and the cross-appeal are not properly constituted. Hence the appeal and the cross-appeal are struck out as the notice of appeal and the notice of cross-appeal are incompetent and do not comply with the provision of the ORDER 6 Rule 2(1) of the Court of Appeal Rules 2007.

M. DATTIJO MUHAMMAD, J.C.A.: My learned brother Awotoye JCA has painstakingly considered all the issues in the otherwise incompetent appeal.
There might be a further appeal who knows?
For all the reasons my lord advanced in the resolution of the issues the appeal raises on the merit, which I hereby adopt as mine, I also strike out the appeal that I would have, were it to be competent, otherwise dismiss. I abide by the consequential orders made in the lead judgment.

ISTIFANUS THOMAS, J.C.A.: I read before now, the lead judgment of my learned brother Awotoye, JCA which has just been delivered.
I whole heartedly agree that, any fatal defect in the notice of appeal will not doubt give the appellate court the jurisdiction to hear and determine the appeal. See Attorney General of the Federation Vs. The Guardian News Papers (1999) 9 NWLR (Pt.618) 187.
In the instant appeal and the cross appeal are both incompetent as parties that may be affected in the outcome of the appeal are not identical with the parties as plaintiffs or defendants at the lower court. For the above reasons and the detailed findings in the lead judgment of my learned brother, the notice of appeal and the cross-appeal are hereby dismissed for being incompetent.

Appearances

F.A. Oso SAN with him J, T. O. Ugbduma,Esq.,For Appellant

AND

E. C. Ukala SAN, with him Dike Udenna Esq.For Respondent