MARK OBINYIRI & ORS v. PETER IBE & ORS
(2014)LCN/6776(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of January, 2014
CA/E/205/2008
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. MARK OBINYIRI
2. SYLVESTER OBINYIRI
3. PATRICK OBINYIRI
4. SUNDAY OBINYIRI
5. IGNATIUS OBINYIRI
6. OKORIE OBINYIRI
7. OBIEJEMBA OHAKANU Appellant(s)
AND
1. PETER IBE (Suing by His next friend, Florence Ibe)
2. OBIEMORO IBE
3. JUSTIN OHAKANU (For themselves and on behalf of Igboanugo family members Umueze Village Ihiala, except the 7th defendant) Respondent(s)
RATIO
WHETHER OR NOT AN IMPROPERLY CONSTITUTED ACTION ROBS THE COURT OF THE JURISDICTION TO ENTERTAIN THE ACTION
It is settled law that where an action is not competent or properly constituted, it robs the court of the jurisdiction to entertain same. In other words, such a complaint raises the issue of jurisdiction of the trial court and ought to be dealt with first and foremost since a judgment delivered, in action outside the jurisdiction of the court amounts in law to a nullity irrespective of how well the proceeding was conducted by the trial judge. In Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 the Supreme Court observed thus:-
“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction; the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”
In another related case of Adesola v. Abidoye & Anor. (1999) 14 NWLR (Pt. 637) 28, the Supreme Court held that “if a court has no jurisdiction to hear and determine a matter before it, any step taken in relation to the matter is a nullity and void.”
See also Akinbobola v. Plisson Fisko Nigeria Ltd. & Ors. (1991) 1 NWLR (Pt. 167) 270 und Adetayo and Or. v. Ademola & Ors. (2010) 15 NWLR (Pt. 1215) 169. PER MSHELIA, J.C.A.
ADZIRA GANA MSHELIA J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Anambra State, holden at Nnewi Judicial Division, delivered on 21st day of December, 2007 coram G.E. Ifeakandi J.
The judgment appealed against arose out of two consolidated suits namely: (i) HIH/12/95 and HIH/13/95, respectively. The first suit was instituted by the respondents, in a representative capacity, against the appellants. While the second suit was filed by the appellants, likewise in representative capacity, against the respondents. It is evident from the record that pleadings were filed and exchanged by parties in both suits which were therefore consolidated for trial.
The plaintiffs in suit No. HIH/12/95 who continued to be the plaintiffs in the consolidated suits Nos. HIH/12/95 and HIH/13/95 claimed per their Amended Statement of Claim dated 23/9/93 for themselves and on behalf of Igboanugo family members of Umueze village Ihiala, excepting 7th defendant as follows:-
(a) A declaration that the plaintiffs rightly and exclusively are entitled to a grant of statutory right of occupancy in respect of the land in dispute.
(b) Perpetual injunction restraining the defendants, agents, servants and privies from further trespassing into the said land.
(c) N5M (Five Million Naira) being general damages for trespass into the said land.
(d) An order of court setting aside any sale or grant or any form of transaction between the 1st to 6th defendants and the 7th defendant over this land.
(e) An order of forfeiture of any of any occupation or residence on any portion of the land in dispute.
The defendants also in their suit No. HIH/13/95 claimed against the plaintiffs as follows:-
(a) A declaration that they are entitled to the statutory right of occupancy in respect of the land in dispute.
(b) N100,000.00 (one hundred thousand naira being damages for trespass.
(c) Perpetual injunction restraining their defendants, their agents, servants, and privies from any further trespass into the land in dispute.
From the pleadings and evidence adduced the appellants case was that the Ala Akwu Umu Nwachukwu land was shared particularly in 1956 amongst the three sons of Nwachukwu namely; Nwaizuegbu, Anoyika and Igwenaha and that the descendants of these three (3) sons continued, to allot land from the portions, inherited from the three lineages. DW1 and DW3 gave evidence in line with the pleadings.
The respondents’ case was that the Ala Akwu Umu Nwachukwu was not shared/partitioned in 1956 amongst the three sons of Nwachukwu namely; Nwaizugbe, Anoyika and Igwenaha but that the 1st son (Okpara) and the kindred elders in accordance with their land tenure system normally from time to time allocate land to their deserving members. The land in dispute was duly allocated to the respondents/plaintiffs in 1967. The said allottees assumed absolute possession of same, cultivating thereon and reaping economic trees thereon without let or, hindrance for years. Evidence in support of the pleadings was elicited through PW1, PW2, PW3, PW4 and PW5. At the conclusion of the evidence and address of counsel, the learned trial judge delivered judgment in favour of the respondents thus:-
“it is to my satisfaction, that I hold that the plaintiffs have proved their case and are, entitled to the declaration they seek and judgment be given to them. The defendants on the other hand have not succeeded in defending the plaintiffs’ case and have failed to prove their cross action in their suit No. HIH/13/95 between the parties therein.”
Judgment is therefore entered for the plaintiffs in the following terms:
(a) The plaintiffs are the persons rightly entitled to a grant of statutory right of occupancy in respect of a piece or parcel of land lying and situate at Umunuachukwu Umueze village Ihiala excluding the land initially granted to the 7th defendant within the allotted land, which annual rental value is N100.00.
(b) Perpetual injunction restraining the 1st – 6th defendants, their agents, servants and privies from further trespass into the said land.
(c) An order of court is hereby made setting aside any sale or grant or rent, or any form of transaction between the 1st – 6th defendants and, the 7th defendant over this land.
(d) N200,000.00 (Two hundred thousand naira) being general damages for trespass into the said land.
(e) An order of forfeiture is hereby refused.
I make no order as to cost.”
Being dissatisfied with the judgment in question, the appellants filed this appeal upon four grounds of appeal. However, with the leave of the court, the appellants filed additional grounds of appeal on 26/1/2009.
In accordance with the practice of this court, parties filed and exchanged briefs of argument. Appellants amended brief of argument settled by Chief E.E. Egbunonu was filed on 02.11.2010 but deemed properly filed on 09.11.2010. Respondents brief of argument settled by Anene Nzelu Erq., was dated 04.02.11 and filed on same date. Appellants reply brief was dated 17.02.2011 and filed same date. When the appeal came up for hearing, appellants’ counsel adopted the two briefs of argument and urged the court to allow the appeal, set aside the judgment of the lower court and grant all their reliefs sought thereat. Respondents’ counsel adopted respondents’ brief of argument and urged the court to dismiss the appeal”
Appellants formulated four issues from the nine grounds of appeal for determination as follows:-
1. Whether the plaintiffs in the consolidated suit proved their case as to entitle them to a declaration the evidence on root of title and acts of possession being in locus. (GROUND 1).
2. Whether the plaintiffs’ suit was properly constituted and instituted. (GROUND 2).
3. Whether the learned trial judge took a correct and proper approach to the evaluation of the total evidence adduced at the trial when it came to a conclusion in favour of the respondents before considering the evidence of the appellants which outweighed the respondents’ case or evidence- (GROUNDS 3, 8, and 9).
4. Whether the trial court in its evaluation of evidence made proper findings of facts supported by the evidence before the court. (GROUNDS 4, 5, 6 and 7).
Respondents formulated three issues for determination in their brief of argument.
The issues are:-
1. Whether the land in dispute Akwu Umu Nwachukwu which both parties as the descendants of Umu Nwachukwu enjoy communally at any time between the three sub-families of Umu Nwachukwu (namely Nwaizugbe, Anoyika and Igwenagha) which party has better title to the land in dispute.
2. Whether the respondents were allotted the land in dispute by the Okpara (1st son) and elders of Umu Nwachukwu in accordance with custom, tradition and land tenure system of Umunwachukwu to grant land to their members by the 1st son (Okpara) and the elders of Umu-Nwachukwu.
3. Whether it is the custom, tradition and land tenure system for Umu-Nwachukwu to grant land to their deserving members by the 1st son (Okpara) and the elders of Umu-Nwachukwu.
I shall deal with this appeal upon consideration of the four issues formulated by the appellants. I will however, resolve the issues in this order: Issue 2, 1, 3 and 4 respectively.
ISSUE 2.
I find it necessary to consider the second issue raised by the appellant first because the issue attacks the competence of the action as constituted. It is settled law that where an action is not competent or properly constituted, it robs the court of the jurisdiction to entertain same. In other words, such a complaint raises the issue of jurisdiction of the trial court and ought to be dealt with first and foremost since a judgment delivered, in action outside the jurisdiction of the court amounts in law to a nullity irrespective of how well the proceeding was conducted by the trial judge. In Utih v. Onoyivwe (1991) 1 NWLR (Pt.166) 166 the Supreme Court observed thus:-
“Moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction; the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise.”
In another related case of Adesola v. Abidoye & Anor. (1999) 14 NWLR (Pt. 637) 28, the Supreme Court held that “if a court has no jurisdiction to hear and determine a matter before it, any step taken in relation to the matter is a nullity and void.”
See also Akinbobola v. Plisson Fisko Nigeria Ltd. & Ors. (1991) 1 NWLR (Pt. 167) 270 und Adetayo and Or. v. Ademola & Ors. (2010) 15 NWLR (Pt. 1215) 169.
Jurisdiction therefore, is said to be a peripheral issue in any adjudication where it is raised.In arguing the issue, learned counsel for the appellants in the appellant’s brief deemed filed on 9/11/10 submitted that the respondents’ suit was not properly constituted. Learned counsel submitted that the respondents sued the appellants in 1995 and in the said suit took out the writ of summons purporting the 1st respondent to be a minor and purporting to take out the suit for themselves and on behalf of Igboanugo family members Umueze village Ihiala except the 7th defendant.
That PW1 gave evidence to the effect that the suit was brought in representative capacity, that is for all members of Igboanugo family. That PW1 whose son is the first respondent did not give any other evidence as to the status of Peter Ibe the 1st respondent being a minor or a person with legal disability. That a child born in 1975 would be 20 years by 1995 as such Peter Ibe was not a minor when the suit was instituted and it was PW1’s evidence that the son was born in 1975. The entire evidence of the respondents and their witnesses is as seen from pages 122 – 160 of the record. Learned counsel further submitted that the evidence of the respondents did not show that the land in dispute is a family land of Igboanugo family members rather, their evidence show that the time Clement Ibe, Obiemoro Ibe and Obiejemba Ohakanu were allotted lands in Akwu Nwachukwu as members of the same age grade and not as members of Igbanugo family nor on behalf of Igboanugo family. Reference was made to the testimony of PW1 at page 125 of the record of appeal.
It was further submitted that the land of the 7th defendant formed part of the respondents’ land which was disbelieved by the court at page 212 of the record and the judgment of the court at page 213 specifically, reliefs A and C make the judgment unimplementable as each is the direct opposite of the other. Reliance was placed on the order of the court in respect of the reliefs awarded to the respondents. Learned counsel contended that the issue of capacity under which the suit was brought affected the judgment of the court as it made the said judgment very ambiguous and unimplementable. That from the evidence of the respondents, it is clear that the respondents cannot legally bring the suit jointly as their evidence is that they were granted the land individually with each person’s own clearly marked out and that once a grant is made, it becomes irrevocable. Respondents also stated that an allottee can even sell his own. Counsel then posed a question: how then can they bring the suit for themselves and as representing Igboanugo family? Counsel submitted that if the Umunwachu elders were granting land to deserving members absolutely then the characters of ownership changed from communal ownership to individual ownership and cannot revert back again to communal or family ownership as presented to the court. Reference was made to the testimony of PW4 at pages 158 and 160 of the record of appeal. Learned counsel further argued that if the family granted land to individuals separately and each grant becomes absolute and irrevocable, what then informed the three independent persons bringing one suit? He said why should they refer to the land again as their family land since they (respondents) and appellants are from the same Umunwachukwu and the grants were not made on family or sub-family basis according to them. Counsel contended that this nailed the case of the respondents to the effect that they cannot legally bring the suit again in representative capacity as they did. Reference was made to pages 143 and 151 of the record of appeal.
It is clear from the respondents’ brief dated and filed on 4-02-2011 that they did not respond to this issue in their brief of argument.
It is evident from the record, that the respondents commenced proceedings in a representative capacity. As earlier stated this is a consolidated case. At the trial court, the suit filed by the respondents bears No. HIH/12/95. In paragraphs 6 of the further amended statement of claim appearing at page 36 of the record the respondents averred thus:-
“The Plaintiffs are all members of Igboaugo family of Umueze village, Ihiala, and bring this action on behalf of themselves and other family except the 7th defendant.”
The question now is whether the respondents made out a case in the capacity in which the action was instituted. In answering this question, I would take a look at the evidence adduced by the respondents on record. I will only refer to relevant portions of the testimonies of PW1, PW2, PW3, PW4 and PW5.
PW1 at page 122 of the record stated in her examination in chief as follows:-
“The plaintiffs have brought this suit under a representative capacity. All members of Igboanugwu family are represented in this suit:-
At page 123, PW1 further stated in evidence thus:-
“Any person who is entitled to (Ani Obi) gets his land, he then farms it and harvest from it until he is ready to build his house. Nobody can take back any portion of land granted to another person as that person’s “Ani Obi” from the allottee. An allottee can sell the portion of land allotted to him.”
PW1 stated under cross examination at page 130 of the record as follows:-
“The residential land of the three persons earlier mentioned are separately owned but located in the same area.”
PW2 at page 143 of the record also testified as follows:-
“I took them to the house of my elder brother, and before Herbert Eze, Mark Obinyelu said that he had removed his hands from the land in dispute as it was then clear to him after the decision by the Okpara and the elders that the land belonged to me PW2. Clement Ibe and Obijiemba Ohakanu.”
During cross-examination PW2 stated thus:-
“When the 1st Plaintiffs father died, the 1st plaintiff inherited his father’s property and assets” – See page 144 of the record.
PW3 at page 151 of the record also stated as follows:-
“They the plaintiffs got their land through their Okpara. When somebody is of age, he goes to the Okpara and the Okpara will measure out the land and give it to that person. The Plaintiff through the above method got their own shares of land from their Okpara when they were of age. The land so granted to anybody including the plaintiff is irrevocable”.
At page 156 Pw4 stated during his evidence in Chief as follows:-
“I know the custom of Umunwachukwu as it relates to land. Acquisition of land in Umunwachukwu is done by the Okpara of the three kindreds. The three kindreds are: Nwizugbe, Onoika, Igwenagha, whoever is the overall Okpara will consult the other remaining kindred before any allocation could be given or done. The 1st and 2nd plaintiffs in this suit acquired their lands through this method”.
The actual names of people that acquired the land are:-
(1) Clement Ikeoyibo Ibe
(2) Obiemoro Ibe
(3) Obiejemba Ohakamu
Clement Ikeoyibo is the native name of Clement Ibe. It is the land acquired by the three people I mentioned that is in dispute.
At page 163 of the record, PW5 also stated during his testimony in Chief as follows:-
“Any person allotted land under this procedure takes the land and it is never revoked”. (Note underlining are mine for emphasis.)
The fundamental principle which governs suits brought in a representative capacity is that:-
1. Those represented must have a common interest and a common grievance and
2. The reliefs sought must in its nature be beneficial to all those whom the plaintiff is representing. See Ogamioba & Ors. v. Chief Oghene & Ors. (1961) 1 ALL N.L.R. 59 and Idise & Ors. v. Williams International Ltd. (1995) 1 NWLR (Pt. 370) 142.
In another related case of Olatunji v. The Registrar of Cooperative Societies 1968 NMLR 393, the apex court listed the essential requirements for people who desire to sue in representative capacity to include the following:-
(i) There must be numerous persons interested in the case on the side to be represented.
(ii) AII those interested must have the same interest in the suit i.e. their interest must be joint and several.
(iii) All of them must have the same grievance.
(iv) The proposed representative must be one of them and
(v) The relief sought must be in its nature beneficial to all the persons being represented.
Going by the evidence of the respondents and their witnesses reproduced supra, can it be said that the representation of the respondents in this case satisfies the requirements as laid down by this court supra? I am of the firm view that it does not. The testimonies of PW1, PW2, PW3, PW4 and PW5 clearly demonstrate that the land in dispute between the parties does not belong to Igboanugo family as claimed by the respondents. By paragraphs 15, 17 and 25 of the further amended statement of claim, there is no dispute that land allotted to the respondents were owned individually as each one of them could sell same and the allotment is irrevocable. I agree with the submission of appellant’s counsel that since Umunwachukwu elders grant land to deserving members absolutely then the characters of ownership changed from communal ownership to individual ownership and cannot revert back again to communal or family ownership as presented to the court. If the family granted land to individuals separately and each grant becomes absolute what then informed the three Independent persons bringing one suit? Respondents could only maintain action for trespass to their various portions, not declaration of title to the land. It is essential that all the respondents (plaintiffs) must have the same interest and the same cause of action before an action in a representative capacity can be commenced. As earlier observed the pleadings and the evidence adduced clearly show that each respondent has separate and distinct interest in separate and distinct portions of the land in dispute, means that the requirement of clear joint interest in the subject matter of the action required in suing in representative capacity has been destroyed by the evidence.
In Oragbade v. Onitiju 1962 1 SCNLR 70, (162) 1 All NWLR 32, the Supreme Court stated the law as follows:-
“…On the evidence adduced for the plaintiff, it was plain that he and others claimed to have each an individual farm of his own within the area in dispute: which means that the Ifetedo Community as whole cannot claim the entire area as communal land. . ..”
See also Idise & Ors. v. Williams International Ltd. (supra) and Ofia v. Ejem 2006 11 NWLR (Pt. 992) 652.In the circumstance, I will resolve issue No. 2 in favour of the appellants and against the respondents. I therefore come to the conclusion that the action before the trial court was not properly constituted the same being incompetent.
The success of Issue No. 2 terminates the entire appeal. I do not therefore find it necessary to resolve issues 1, 3 and 4 as resolving same would only amount to academic exercise.
I will accordingly allow the appeal in part and set aside the decision of the High Court of Justice Anambra State holden at Nnewi Judicial Division in the consolidated suit HIH/12/95 and HIH/13/95 on 21st day of December, 2007. In its place therefore I will order that suit NO. HIH/12/95 be and is hereby struck out for being incompetent.
What then would be the appropriate order to make in respect of suit No. HIH/13/95? As earlier stated in this judgment, this appeal is against a consolidated suit. Consolidation of actions is the process whereby two or more separate actions pending in the same court are joined and tried together at the same time, to save costs and time. Nevertheless the burden of proof lies on Plaintiffs in each suit. Each Plaintiff must discharge his onus. Although consolidated actions are tried and determined in the same proceeding, each action remains a separate action and should be given its own judgment at the end of the common and joint trial. See Nasr v. C.H.E. Nig. Ltd. (1977) 5 SC 1. In the instant case, the learned trial judge consolidated the two actions HIH/12/95 and HIH/13/95 and tried them together. He did the right thing but at the end of the trial failed to make pronouncements in respect of each of the two suits to show that each case had its own separate and individual existence. Looking at the record it appears the learned trial judge considered the suit filed by the appellants ie. HIH/13/95 as a cross-action. There is only one judgment delivered in respect of the two suits and the said judgment has been set aside. In my humble view, this is a proper case to make an order for retrial of suit No HIH/13/95 afresh. In the interest of justice, I hereby make an order that Suit No. HIH/13/95 be assigned to another judge of the High Court of Justice Anambra State by the Chief Judge for hearing afresh (denovo). No order as to costs.
IGNATIUS IGWE AGUBE, J.C.A.: I have read the lead Judgment of my Learned brother in advance and I agree that the Suit of the Respondents as constituted in the lower Court was incompetent. The Appeal partly succeeds and is accordingly allowed in respect of Suit No. HIH/12/95 which is accordingly struck out for want of jurisdiction.
In respect of the sister case Suit No. HIH/13/95 which was tried together with HIH/12/95 as Consolidated Suits, I also agree with my Lord that even though it was consolidated and rightly tried together with HIH/12/95, on the authority of NASR v. C.H.F. (NIG.) LTD (1977) 5 S.C. 1, separate judgments, ought to have been written/delivered for the two Suits.
In other words, at the judgment stage, the two suits ought to be deconsolidated and two judgments delivered for each of them. Having not delivered judgment in Suit No. HIH/13/95, this Court is not availed of the learned trial Judge’s opinion to enable us pronounce on it herein on Appeal.
Accordingly, I also endorse the position taken by my Learned brother that this is a proper case for remittance to the Honourable, the Chief Judge of Anambra State , for re-assignment to another Judge for rehearing. I abide by the Order as to costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the judgment just delivered by my Learned sister ADZIRA GANA MSHELIA, JCA. I completely agree with the reasoning and conclusions therein. I also allow the appeal in part. The decision of the High Court of Anambra State at Nnewi in the consolidated suits Nos. HIH/12/95 and HIH/13/95 on 21-12-2007 is hereby set aside. I also hold that suit No. HIH/12/95 is incompetent. It is accordingly struck out. It is hereby also ordered that suit No. HIH/13/95 be retried by another Judge of the High Court of Anambra State.
I make no order as to costs.
Appearances
Chief Dr. E.E. EgbunonuFor Appellant
AND
Anene Nzelu with C.A. Eze Esq.For Respondent
