MR. AJAYI AKERELE & ANOR v. CHIEF ONI & ORS
(2018)LCN/12247(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/173/2017
RATIO
COURT AND PROCEDURE: REPRESENTATIVE ACTION
“See also Amah V. Nwankwo (2008) All FWLR (Pt. 411) 879 @ 899 – 900 G – A, per Rhodes Vivour so long as there are juristic persons suing in a representative capacity, the action would be sustained and cannot be defeated. In Ojo V. Akinyemi (2013) LPELR 22139 CA, the Court held thus: ‘A representative action seen and considered as an action brought by the body of persons represented rather than the named Plaintiff only. See Ladejobi V. Oguntayo (2004) 18 NWLR (Pt. 904) 135 — where a juristic person sues in a representative capacity, he being a party in the case can sustain the suit, as the only option open to the Court where a non-juristic person is named as a party to a suit would be to strike out the name of the non juristic person. By suing in a representative capacity, a party suing has clearly joined the persons on behalf of when he is suing as co-Plaintiffs to the action.'” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
COURT AND PROCEDURE: WHO CAN SUE
“The law in this respect is that for an action in a Court of law to be competent, the parties must be juristic personalities’ in this wise, they must either be natural persons as the 1st and 2nd Plaintiffs/Respondents herein are; or they must be juristic or juridical persons. That is to say, they may be abstract persons incorporated either by statute, law or a creation of law and clothed with the status and power to sue and/or be sued.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
PLEADING: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
“It is settled law that in civil proceedings parties are bound by their pleadings and any evidence which is at variance with the averment in the pleadings goes to no issue and should be disregarded by the Court. See (i) George and Ors V. Dominion Flour Mills Ltd (1963) 1 All NLR 71 at 77; (ii) Emegokwue V. Okadigbo (1973) 4 SC 113; (iii) Orizu V. Anyaegbunam (1978) 5 SC 21 page 387 42.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
1. MR. AJAYI AKERELE
2. CHIEF OLASEINDE OLADUMIYE
(For themselves and on behalf of Falemu Familoye Akure) Appellant(s)
AND
1. CHIEF ONI
2. DAVID OMOLADE AFE
3. CHIEF DARE ADEGOROYE
4. MADAM HANNAH AJAYI ADEGOROYE
(For themselves and on behalf of Abusoro Community of Akure North) Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment):
This is an Appeal against the judgment of the High Court of Ondo State sitting at Akure Judicial Division delivered by Justice W.A. Akintoroye dated 13th March, 2017 wherein the learned trial Judge found in favour of the Respondents.
The appellants being dissatisfied with the said judgment have appealed to this Court.
FACTS RELEVANT TO THIS APPEAL
The Respondents? amended Writ of Summons and the statement of claim together with other processes of the Court is dated 8th June 2012. The respondents’ claim is as follows:
(a) A DECLARATION that the Defendants either by themselves, their agents, servants, assigns and or privies cannot carry out any surveyor layout, sale or alienation of any portion of the Abusoro land situate and being at Abusoro community in Akure North with approved layout plan AURPO/AKN/L/003/2002 with the description of the land as follows:
“One side by Emure/Oluyimokun/Amese Community land, on the 2nd side by Usoro and Irese Community, on the id side by Ilado/Itaogbolu Community land and the last side by Igoba/Odudu Community land without the consent and approval of the plaintiff being the head Chief of Abusoro Community.
(b) AN ORDER setting aside as void and of no effect whatsoever all forms of alienation of various portions of the Abusoro land by the Defendants as same was done without the consent and approval of the plaintiff being the head Chief of Abusoro Community.
(c) AN ORDER setting aside as null and void the Defendants layout No AK/UURPO/L/398/98 dated 6/2/99 titled Falemu Familoyo Family Layout for which the Defendants got approval on the plaintiff’s Abusoro community land situate and being at Abusoro community in Akure North Local Government with approved layout plan No AURPO/AKN/L/o03/2002 with the description of the land are as follows:
One side by Emure/Oluyimokun/Amese Community, on the 2nd side by Usoro and Irese Community land, on the 2nd side by Ilado/Itaogbolu Community land and the last side by Igoba/Odudu Community land.
(d) PERPETUAL INJUNCTION restraining the Defendants either bythemselves, their agents, servants, and privies from further alienating either by sale or in any form whatsoever the Abusoro community land situate and being at Abusoro community in Akure North Local Government with approved layout plan AURPO/AKN/L/o03/2002 with the description of the land are as follows: One side by Emure/Oluyimokun/Amese Community, on the 2nd side by Usoro and Irese Community land, on the 2nd side by Ilado/Itaogbolu Community land and the last side by Igoba/Odudu Community land. See pages 41 and 42 of the records.
On the other hand, the appellants defence to the respondents’ case was that the land, the subject matter in dispute belong to their ancestors and them right from the time immemorial. Their progenitor, Osolo Familowo acquired it and built ancient house there where he lived with his wives and children. Their ancestors also planted ancient coconut trees and they have been in occupation for Centuries without any disturbance from anybody. They denied ever being customary tenants to the respondents or their ancestors.
Parties in the Court below gave evidence and called witnesses. Their counsel addressed the Court and after the close of the case, the trial Court gave judgment against the appellants on 13th March, 2017. Aggrievedly, the Defendants/Appellants appealed to this Honourable Court.
Dissatisfied the Appellant has raised this Appeal upon 3 Grounds of appeal and has raised 3 issues there from thus:
1. Whether the trial Court was not in error not to have dismissed the respondents’ claim for failure to prove their not of title vide traditional history (Ground 3)
2. Whether the trial Court was not in error when it failed to consider the Rule in Kojo II V. BONSIE (1957) 1 WLR Pt. 1223 after holding that there were two competing traditional histories of the Appellant’s and the Respondents Ground 2.
3. Whether the respondents’ case was not liable to be struck out for want of jurisdiction and competency (Ground 1).
On their part, the Respondents by their learned counsel, F. Omotosho, ESQ filed their Respondents’ Brief of Argument on 27- 2-18 and same was deemed filed and served on 16-10-18. There in the Respondents Brief their learned counsel observed that the Appellants on their own after several amendments filed what they tagged ‘Amended 1st further amended statement of Defence’ and vehemently contended that the land in dispute does not form part of Abusoro Community Land i.e. the Respondents Community land and that the land in dispute is separate, distinct and unique from Abusoro Community Land.
The Respondent filed a 2nd further Amended Reply to the amended 1st further Amended statement of Defence.
The Respondent called 4 witnesses and tendered Exhibits 1-14. The Appellants on the other hand called 4 witnesses and tendered C1 and C11.
The Respondent also formulated 3 issues for our determination thus:
1. Whether the lower Court has jurisdiction to entertain this matter on appeal in view of the parties before the Court
2. Whether the Court was right in holding that the Respondents had proved their claim to be entitled to reliefs sought (Ground 3)
3. Whether the Judgment of the Lower Court can be set aside on the ground that the rule in Kojo V. Bonsie was not strictly adhered to by the trial Court.
A careful study of the record of Appeal clearly shows that the Notice of appeal filed against the competence of the Jurisdiction of the trial Court and on the merit complains that the competing claim to title to the land based on Traditional history had not been proved in favour of the Plaintiff/Respondent to warrant success at the trial Court.
For the above, I think the issues germane from the determination of this appeal are Issues 1 and 3 as formulated by the Appellants which issues I adopt.
The second Issue of the Appellant on the Rule in Kojo II V. Bonsie (1957) 1 WLR at 1223 can be subsumed and determined in Issue 1; on the other hand the Respondent’s issue I on jurisdiction is the same with the Appellants Issue 3 whilst the Issue 3 of Respondents can be subsumed in their issue Number 2, which is same as Appellants’ Issue Number 2, which therefore ties it to Appellants adopted Issue No. 1.
I shall start with Appellants’ issue three. It concerns jurisdiction.
The appellant contends from paragraphs 6.0 – 6.14 of their Brief of Argument that the suit at the trial Court was incompetent and that the trial Court lacked jurisdiction to determine same because the Abusoro Community of Akure North authorised the respondents to institute this case at the Court below.
Reference was made to page 37 of the Record in support of the authorisation which is being impugned as wrongly.
It is contended that the Abusoro Community of Akure North is a non juristic person and cannot authorise the respondents juridical persons to institute an action on its behalf; Counsel refers to the cases of LION OF AFRICA INSURANCE COMPANY LTD VS ESAN (1999) 8 NWLR (Pt. 614) 197 @ 2010 AND ABU V.OGLI (1995) 8 NWLR (Pt. 413) 353 at 372 paragraphs A – B referring also to the case of Fawehinmi V. N.B.A (No. 2) (1989) 2 NWLR (Pt.105) 494 @ 578 where the supreme Court held that juristic person that may sue or be sued or authorise juristic persons to represent it in a civil action are as follows:
(a) Human-beings
(b) Companies incorporated under the various Companies Laws/Acts
(c) Corporation sole with perpetual succession
(d) Trade Union
(e) Partnership and
(f) Friendly societies.
That the Abusoro Community, Akure North is not any of the above listed entities. Sharon Paint & Chemical Company Limited V. Ezenwaku (2001) ALL FWLR (Pt. 43) 290 was also relied upon.
The learned counsel contended further, that per paragraphs 5 and 7 of the amended statement of claim, the respondents stated that they instituted the case on behalf of Abusoro Community and that the land in dispute belongs to Abusoro Community Counsel – drawing our attention to page 38 lines 11, 12, 16, 17 and 18 of the record, also reproduced paragraph 5 of the Amended statement of claim which averred this:
“The plaintiffs institute this suit for themselves and on behalf of Abusoro Community.”
See page 38 lines 11 and 12 of the record. Counsel also reproduced paragraph 7 of the amended statement of claim which avers thus;
“The Plaintiffs aver that the Abusoro Community owns the expanse of land known and describe as Abusoro Community land with approved plan AURPO/AKN/L/003/2002 with the description of the land as follows…”
See page 38 lines 15-18 of the record and submits that where there are no proper persons who can sue and be sued, before the Court; the suit was in competent and the Court lacks the jurisdiction to determine the case. Reference is made to Awoniyi V. Amorc (2000) 6 SCNJ 141 at 149 and OFIA V. EJEM (2006) 5 SCNJ 188 at 196.
That the respondents are not proper parties as they sued on behalf of non juristic person, Abusoro Community. That there were no proper claimants before the Court.
That the Appellants were even sued to defend this action against a non-juristic person, Falemu Familowo of Akure. That there were no proper claimants and Defendants/Appellants before the Court.
Appellants’ Counsel submitted further that the question of jurisdiction may be raised at any time and by any means even for the first time at the apex Court without leave of Court.
ONI VS CADBURY (NIG) PLC (2016) ALL FWLR (PT. 827) 605 AT 261; AG OYO STATE VS FAIR LAKES HOTELS LTD (1988) 12SC (PT. 1) 1, Oyakhire V. State (2006) 7 SCNJ 319; Okoro V. Nigeria Army Council (2000) 3 NWLR (Pt. 647) 77.
That the non raising of the lack of jurisdiction at the trial Court did not stop it being raised now on appeal; contending further that a resolution in favour of the Appellant that the Court lacked jurisdiction automatically puts an end to any further action by the Court. Relying therefore, on the cases of Okeke V. Securities and Exchange Commission (2013) ALL FWLR (Pt. 687) 731 at 761, paragraphs B – D, ARAKA V. EJEAGWU (2000) FWLR (Pt 36) 830 and Nwakanma V. Ojukwu (2007) ALL FWLR (Pt. 395) 504, we have been urged to strike out the respondents’ suit No. AK/177/2010 which was decided on 13th March, 2017 for want of jurisdiction and competence.
In response, the Respondent’s Counsel submits that the contention on jurisdiction was not only frivolous, grossly misconceived but baseless. Learned Counsel referred to the cases of Anatogu & Anor V. A.G. East Central State of Nigeria & Anor. (1976) LPELR 483 (SC); (1976) U.S.C (Report) 59; Re- Ogundahunsi (2008) ALL FWLR (Pt. 420) 671 @ 895 D-E.
Refers to page 86 paragraphs 1 – 6 of the Respondents further Amended statement of claim. And the cases of Omokayode & Anor Vs Lawal (2011) LPELR 9268 CA; N. A.O.C LTD Vs Jawyin (2015) FWLR (Pt. 785) 366 @ 386 – 387; Amah V. Nwankwo (2008) ALL FWLR (Pt. 411) 879 @ 899 – 900 G. A.
Asking the question thus: can the representative action on behalf of the Abusoro Community as constituted render the suit incompetent with the Court having no jurisdiction to entertain it? Counsel answered in the Negative contending that as long as there are juristic persons suing in a representative capacity the action would be sustained and not in any way be defeated. Ojo V. Akinyemi (2013) LPELR 22139 CA; LADEJOBI V. OGUNTAYO (2004) 18 NWLR (Pt. 904) 135 and Dairo Vs REGD TRUSTEE OF THE ANGLICAN DIOCESE OF LAGOS (2018) 1 NWLR (PT. 1599) 62 @ 90 B – C were referred to and urged that this Issue be resolved against the Appellants.
On the Issue Number one of the Appellant, the Learned Counsel submitted that the Court was in gross error for not dismissing the Plaintiff/respondents’ claim of title as it was not proved. That the customary root of title was not proved.
The Learned Counsel submitted that for there to be established title claimed through traditional history, the party who so relies on such traditional evidence as his root of title must plead and prove three things to wit; (i) who founded the land, (ii) how the land was founded and lastly, the particulars of owners through whom he claims. He relies onAlli V. Alesinloye (2004) 4 SCNJ 264 at 284 – 285 in support of the contention.
According to the Appellants? learned counsel to the contrary the Respondents/Plaintiffs Counsel pleaded at paragraph 12 of their amended statement of claim thus:
“The Plaintiffs aver that upon setting (sic) down at the newly founded Abusoro, Ojigigun invited his siblings, Agbejiga and they all used and held the lead in common” see page 39 lines 20 – 22 of the record. That the respondents/Plaintiffs ought to have pleaded and proved in detail the particulars of their ancestors without leaving any gap from Ojijigogun up to them.
Relies on Olokunlade V. Samuel (2013) ALL FWLR (Pt. 669) 1150 @ 170 and Sanni – Omotosho Vs Obidairo (2014) ALL FWLR (Pt. 745) 210 at 231 per G – H to contend that the averment in paragraph 12 of the amended statement of claim of the respondent was nothing more than sweeping assertions which clearly left the traditional evidence at large.
WUSU V. David (2015) ALL FWLR (Pt. 763) 1924 at 1948 paragraph B ? E was further relied upon. The Counsel relying also on Suara Yusuf V. Adegoke & Odetunde (2007) 30 NSCQR (Pt. 1) 269 @ 294 per Aderemi, JSC submitted that a Plaintiff who pleads traditional history and failed to adduce credible evidence in proof of same is entitled to have his case dismissed in toto and no other evidence should be considered.
It was argued further that aside the lacuna in the traditional history of who founded the land and its devolution on the Respondents, that the traditional history was at variance with the pleadings as the over Lordship of the Respondents over the Appellants was asserted on the claim that the Appellants were Customary tenants on the land where-at they settled on by the permission of the Respondents’ ancestors on payment of royalties/dues like yam, and Respect and loyalty; refers to page 39 lines 34 – 36 of the Plaintiff Respondents’ pleadings.
The learned Counsel contended that the evidence led was in conflict with the pleadings and the case should have been dismissed as not proved. Reference was made to the evidence of CW2 in cross-examination where he stated thus:
“Our ancestors granted land to Opa, not to the ancestors, the defendants not to Familoyo. Opa gave land thereafter to defendants ancestors but not for them to sell. Opa was not our family members He was our progenitor’s traditional doctor with respect to children and child bearing.” See page 387 lines 13 – 18 of the record.
That supported the claim of the Appellants that the respondents were at no time their customary landlords as it was Opa that was admitted to have granted land to the Appellants and who was not the blood relations of the respondents.
It was contended from the evidence of Cw4 the registered survey or and Exhibit 13 tendered that the fact that a portion of the land as verged ‘Red’ in dispute and that verged ‘Blue’ not in dispute were all on the Exhibit and the disputed portion and with ancient building thereon, as admitted by Cw4 in Cross-examination he got from claimant, to the Appellants’ ancestors.
That he was not told how long the said ancestors had been on the land. page 391 lines 9 – 11 of the record.
That if the ancient huts and trees belong to the Appellants ancestors who were not proved to be tenants and for a period of over 100 years as affirmed in cross-examination by CW3. Page 388 lines 8 – 9 the record; That CW2 the 3rd respondents had confirmed the long sojourn of the Appellants’ ancestors on the land and for many years, with land. Page 387 lines 6 – 8 of the record.
Relying on the case of Edokpolor & Co. Ltd Vs BENDER INSURANCE CO. (1997) 2 NWLR (Pt. 486) 133 at 140 – 141 and AJAGUNGBADE III V. LANIYI (1999) 1 NWLR (Pt. 633) 92 at 144 that the Appellant case was supported by the Respondents case and demolished the claim of the Plaintiff/Respondents.
That the evidence of long possession, further demolishes the claim of ownership of the respondents. Reliance was placed on the cases Maskala V. Sili (2002) (6 SCNJ) 351 at 355 and Nwosu V. Udeaja (1990) 1 SCNJ 152.
That evidence led was at variance with the pleadings and therefore ought to have been rejected, citing Awara Vs Alalibo (2003) 104 LQCN 55 at 64 and Apena V. Aileru (2015) ALL FWLR (Pt. 790) 1256 at 1271, C – J on the point. Counsel also contended that the respondents’ case ought to have been dismissed by the trial Court because the respondents did not prove their root of title vide traditional history. Uka V. IROLO (2002) 7SCNJ 134 at 167 – 168 SC.
That the finding that the Plaintiff/Appellant had proved his claim to traditional title was per verse and should be upturned. Olaniyi V. Olayioye (2014) ALL FWLR (Pt.745) 363 at 404 paragraph G – H relied upon.
Finally that a claimant for a declaration of title has a duty to establish and succeed on the strength of his case and not on the weakness of the Defendant’s case Dada v. Dosunmu (2006) 9 SCNJ 31 at 49.
That the Appellants who in this case did not file any counter claim but merely defended the respondents’ action, therefore had nothing to prove before the Court. That the Respondents, having failed to prove their traditional root of title as claimed, ought to have their action dismissed.
That this issue be resolved against respondents.
In response to Issue No. 1 of the Appellant, the Respondent by his own Issue Number Two:
Whether the lower Court was right in holding that Respondents have proved their claim to be entitled to all the reliefs sought.
Learned Counsel observed that the burden was on who ever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts to prove that those facts actually exist. He relies on Section 131 of the Evidence Act and the case of AGI Vs PDP (2017) NWLR (Pt. 158) 386 at 454 C – F in aid of the view.
He submit that the trial Judge had clearly set out the five (5) ways of proving title to land and to wit (a) By traditional evidence (b) By the production of documents of title (c) Acts of ownership over sufficiently length of time numerous and positive enough to warrant the inference that the person is the true owner. (d) Long possession (e) By proof of possession of connected and adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land.
The Learned Counsel argued that the trial Court had appropriately itemised the five ways of proofs of title to land and came to the decision arrived at Quoting specifically the case of Ojoh Vs Kamalu (2005) 18 NWLR (Pt. 958) 523 at 574 – 575, where Mohammed JSC stated thus; under the Nigerian land law it had long been well established that there are five ways or proving or establishing title to land. This of course means that each of the five ways of proving title will be sufficient proof.
This means that a party claiming title to land is not bound to plead and prove more than one root of title to succeed. Therefore if a party relies on more than one root or way of proving title, that would be merely to make assurance doubly sure, or he does that, ex-abundanti cautela.
The Learned Counsel submitted that the Respondents had by their pleadings and evidence relied on two of the Five ways of proving title enumerated earlier in order to make assurance doubly sure out of abundanti cautela – by: (1) Traditional evidence (ii) By proof of possession of connected or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
In relying on proof by Traditional evidence, it was contended that the Plaintiff/Respondent had pleaded in paragraphs 8, 9, 10, 11, 12, 13 (a) & (b) of the Further Amended statement of claim material facts on the essential requirements to prove to succeed on this head. That it was proved; (1) who founded the land, how it was founded and the devolution of the land by unbroken chain of succession down to the Respondents. Pages 87 and 423 of the record of appeal were referred for this fact.
That the Court had reviewed the oral evidence on traditional history and examined reviewed and evaluated the documentary evidence adduced along with the traditional history.
It was argued that the Respondents had pleaded and proved that the land in dispute was called as the Abusoro Community land which the Defendant/Appellant denied as being a distinct and separate land. Appellant did not as a defendant deny that there exist a vast parcel of land jointly own by three families and called Abusoro Community. Respondents Counsel submitted that proof of title by traditional history had been made.
That the trial Court having evaluated the evidence led and the pleadings, arrived at the right decision that there was no dispute about the existence of Abusoro Community and its founding by the Respondents and the fact that the denial and assertion that the land in contention was not part of Abusoro Community was not born out of the evidence led.
The Counsel submitted that those findings of fact has not been appealed and is deemed acceptable and admitted fact by the party against whom it was made. Cite International Estates Ltd Vs E International Inc. & Associates (2018) 3 NWLR Pt. 332 at 353 – G – H.
That the lower Court was right in considering the pleadings of both the Appellants and respondents and their evidence in arriving at the conclusion on the fact that the Abusoro Community belongs to the Respondents.
That the trial Court having so properly evaluated the evidence and arrived at the right decision, when he considered paragraphs 58 and 59 of the Appellants’ Amended 1st Further Amended statement of Defence where appellants had by their pleadings and evidence admitted tacitly and truthfully that the land in dispute is within Abusoro community which belongs to the Respondents and paragraphs 50 and 52 of their pleadings that the Appellant’s family land does not form part of Abusoro land.
That the admission in paragraphs 58 and 59 of the said Amended 1st Further and Further Amended Statement of Defence is an admission against interest.
Counsel argued that parties are bound by their pleadings. Ojoh V. Kamalu (2005) 18 NWLR (Pt. 958) 523 @ 548 E – F.
That the Appellants were estopped. That though a Plaintiff succeeds on the strength of his case, but a Defendant may take the benefit of his opponent’s case that supports their case.Okhuarobo V. Aigbe (2002) 9 NWLR (Pt. 771) 29 @ 47 – 48, H – B; Onigbede V. Balogun (2002) 6 NWLR (Pt. 762) 1 14 H.
It was contended that the Appellant’s denial that they were the Respondents’ tenants was rebutted by the admission that the land in dispute was separate from the Abusoro Community and which had been debunked.
Learned Counsel submitted that the proof of title was based upon an oscillating pendulum. That where issues have been joined as to title to land in dispute and Claimants have adduced evidence to show title, the onus shifts on to the Defendants to prove the contrary. That if at the conclusion of evidence the Defendants have not rebutted the evidence, then it could be said that the claimants have succeeded in proving their claim.
That having evaluated the evidence, the trial Judge was right in finding on facts as he did at page 427 lines 5 and 6 of the record thus:- ‘Unfortunately, they (Defendants) refused and/or failed to show the difference to the Court;. That Respondents were only expected to prove their case on the balance of probabilities or preponderance of evidence. Onwuama V. Ezeokoli (2002) 5 NWLR (Pt. 760) 353 @ 367 C.D and Aro V. Babayero (2004) All FWLR (Pt. 204) 61 at 72 H.A.
We have been urged to dismiss the Appellants contention that the Respondents had not proved their title through traditional evidence as claimed.
On Issue 3: Whether the Judgment of the trial Court can be set aside on the ground that the Rule in Kojo V. Bonsie was not strictly adhered to by the trial Judge.
It was argued that the Judge had observed that the parties relied on traditional history or Evidence on proof of their title. Pages 434 lines 20 – 24 of the record and page 425 lines 1 – 15 and particularly page 425 – 15 – 23 where the Judge stated thus:
“The first duty of this Court is to find which of the two competing versions of the traditional evidence adduced by parties in this case is more probable, by testing it against other evidence in this case. See Dibiamaka V. Osakwe (1989) 3 NWLR (Pt. 107) 101 at 102.
The approach is not to look at facts in recent years as first line of reasoning and then to pick one of the two histories as victorious. If it were so, a party with obvious discredited history but who managed to point to facts in recent years created by it from some advantage might simply defeat the true owners of land in dispute.”
It is submitted that once a Court is faced with two competing evidence of traditional history it will decide which of the stories is more plausible or probable by reference to all the surrounding facts and circumstances and if both are equally plausible and probable, then by reference to the recent act of ownership. Ogun V. Akinyelu (2005) All FWLR (Pt. 243) 601 623 C relied upon.
On the basis of the aforesaid case, it was also contended that having considered the evidence of the claimant/respondent, more plausible and possible, the trial Judge needed not consider the recent of possession.
That the Appellant was unable to show that with the facts and circumstances of the appeal, the trial Judge came to a wrong decision. That Issue 3 of the Respondent be resolved in favour of the Respondents.
On the totality of the appeal, it was contended that the trial Court had jurisdiction to hear and determine the suit; that the Respondents had successfully proved by traditional evidence and by proving possession of connected and/or adjacent land in circumstances which make it probable that the owner of such adjacent or connected land is probably the owner of the land in dispute.
That ‘the Rule in Kojo V. Bonsie’ was in applicable to this case. We are urged to resolve the 3 Issues in favour of the Respondent and against the Appellants and to affirm the decision of the trial Court and dismiss the appeal with substantial costs.
RESOLUTION OF ISSUES:
APPELLANTS’ ISSUE THREE ON JURISDICTION
This issue borders on jurisdiction of the Court to entertain the suit, as according to the Appellants’ Counsel that suit was incompetent, having had as Plaintiffs the ‘Abusoro Community’ as the entity that authorised the suit; that the said community was not a juristic personality and therefore cannot authorise any person or body to act on its behalf. The authorities in support of the contention, which were relied upon and those in opposition are as set out in the arguments of their respective Counsel and also summarised earlier on.
The law in this respect is that for an action in a Court of law to be competent, the parties must be juristic personalities’ in this wise, they must either be natural persons as the 1st and 2nd Plaintiffs/Respondents herein are; or they must be juristic or juridical persons. That is to say, they may be abstract persons incorporated either by statute, law or a creation of law and clothed with the status and power to sue and/or be sued.
Indeed, even friendly societies and Associations with rights and privileges attaching to them or the members thereof will have the corollary rights and duties and therefore, will have the right to sue and be sued. It is this incidence of rights and obligations that confers legal personality.
In this wise, a community of persons may sue and be sued. However since the community as an abstract with constituents as people, each of the persons cannot litigate in the event of an injury to the community as a whole, nor defend in wholesale with all the constituents being made parties. It is for this reason, that the Respondent’s Counsel is right to have contended that representative action may be brought in such instances as not all the persons in the community can be conveniently and practically made parties. A nominated number will suffice. See Anatogu & Anor V. A.G East Central State of Nigeria & Anor (1976) LPELR 483 SC.
In this case on appeal, the 3rd and 4th Plaintiffs/Respondents were joined by the order of the trial Court granting leave to sue as representing the Abusoro Community of Akure North Local Government Area. The 1st Plaintiff as Applicant had by motion filed on 17/5/17 applied for the joinder of the 2nd, 3rd and 4th respondents and for leave for the 4 Plaintiffs to sue in a representative capacity, as the Olu of Abusoro, being the 1st Plaintiff; the 3rd Plaintiff – being the Elemo of Abusoro and the 2nd and 4th being heads and Principal members of their individual families that constituted the Abusoro community land as a whole.
The Amended Writ and Further Amended Statement of Claim as contained in the Record of Appeal clearly shows that the suit was taken out in a representative capacity.
This rule of convenience was rightly followed and allowed by the trial Court. In Re-Ogundahunsi (2008) All FWLR (Pt. 420) 671 @ 695 this Court per Agube JCA, held that in a representative action, both the named Plaintiff and/or defendant, as the case may be and those they represent are parties to the action, and although the named representatives/Plaintiff and/or defendants are dominis litis until the suit is finally disposed.
Those represented by the representatives are deemed to be in Court so far as their representatives appear in Court and all of them are bound by the outcome of the Court’s decision. At page 86, paragraphs 1 – 6 of the Respondents Further Amended Statement of Claim the representative capacity is clearly seen.
There was no objection to the application to join and to sue in a representative capacity. Even if there was to be an objection, it would have failed because as Ikyeh JCA stated in Omokayode & Anor V. Lawal (2011) LPELR 9268 — The objection must be based on substantial grounds which were not the case here. See NACB Ltd & Anor V. Adeagbo suing as representative of Samuel Adeyoyi who now resides in the United States of America (USA) (2004) 14 NWLR (Pt. 894) 551 @ 572; 584 – 585 —”
The Appellant did not oppose the suit on ground of legal incapacity as there was none and still there is no basis. On their part, the Appellants admitted in paragraph 1 of their Amended Statement of Defence that they were members of the Falemu Family and were sued as representatives of the entire family. The Respondents suit cannot be said to be improperly constituted as relating the parties. In N.A.O.C Ltd V. Jawyin (2015) All FWLR (Pt. 785) 366 @ 386 – 387 this Court held inter alia; Furthermore, the appellant had not challenged that the 2nd – 4th respondents, were members of the Umu-Udie family and such members, cannot or lack the requisite juristic personality to sue for and on behalf of all the other members who constitute or make up the family. A family, whatever its name or name given to it, I agree with the learned Counsel for the Respondent simply means all persons or group of persons who share common ancestry and blood relationship in a community.
However, the Umu-Udie family does not have to be juristic before the members who make it up or constitute it to acquire the name and who are natural persons, can institute an action in the name and for and on behalf of their collective group, name; the family; the family being a group of individuals who have joint interests in the cause of the action against the Appellant, any one or more of the members can, with the authority or consent of the others, sue for and on behalf of all of them. See Ifekwe V. Madu (supra), in the case of Atakulu V. NBC Plc (supra) it was held that “where several persons are jointly interested in the same claim, one or any number of them may within the authorisation of the others sue for and on behalf of all of them. And it is the person invoking the jurisdiction of the Court that must be a juristic person, not the party being represented.”
Furthermore, the Supreme Court in the case of Ladejobi V. Oguntayo (Supra) had stated that; “A person has the right to protect his family interest in a property or title and can sue for himself and on behalf of the family in a representative capacity —–. The respondents’ Suit was initiated or commenced by them as individuals and then as representatives of the other members of the family, in addition. With or without the representation of the other members of the family, the Respondents’ Suit was properly constituted for the Federal High Court to be vested with the requisite jurisdiction to entertain it.”
See also Amah V. Nwankwo (2008) All FWLR (Pt. 411) 879 @ 899 – 900 G – A, per Rhodes Vivour so long as there are juristic persons suing in a representative capacity, the action would be sustained and cannot be defeated. In Ojo V. Akinyemi (2013) LPELR 22139 CA, the Court held thus:
“A representative action seen and considered as an action brought by the body of persons represented rather than the named Plaintiff only. See Ladejobi V. Oguntayo (2004) 18 NWLR (Pt. 904) 135 — where a juristic person sues in a representative capacity, he being a party in the case can sustain the suit, as the only option open to the Court where a non-juristic person is named as a party to a suit would be to strike out the name of the non juristic person.
By suing in a representative capacity, a party suing has clearly joined the persons on behalf of when he is suing as co-Plaintiffs to the action.”
As rightly shown in the aforesaid decisions, the Supreme Court in Dairo V. Regd Trustee of the Anglican Diocese of Lagos (2018) 1 NWLR (Pt. 1599) 62 @ 90 B ? C stated clearly in re-confirmation thus:
“Whether an association of person is un-incorporated, it does not have a legal status of juristic person. Consequently, it can sue only by a representative action, likewise, any person who has been wronged by such an association of persons can only sue it by suing some of its members as representative of the association.”
For the aforesaid, this jurisdictional challenge to the trial Court?s competence, nay the competence of the suit is without basis. The Plaintiffs/respondents were competent being juristic persons and the suit being a validly constituted representative action. The action (suit) was not incompetent. Issue number three (3) of the Appellant which also the Respondents Issue Number 1 is resolved against the Appellant. That is to say that the Court was not in error not to have struck out the respondents case as the case was not liable to be struck out for want of jurisdiction and competence.
ISSUE 1 OF THE APPELLANT
The trial Court had held at page 427 lines 22 and 22 of the record thus:
“I find it more convenient to believe the traditional evidence of the Claimants. I believe it is more cogent and convenient than that of the Defendants — In the instant case Claimants did not just rest their case on traditional evidence, they gave evidence of their forefathers’ possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would be the true owner of the land in dispute. The Defendants did not join issues with the Claimant on the ownership of the connected or adjacent parcel of land to the area in dispute. I hold that the Claimants have discharged the onus of proof place on them in law. It is the turn of defendants to dislodge it —-”
Had the Respondents done as stated by the trial Court in this appeal?
Before answering the above poser, it is instructive to note that the Plaintiffs/Respondents described the land claimed by the name Abusoro Community land. The Plaintiffs/Respondents gave a description of the land claimed and the dimension thereof of the land claimed and in dispute which they pleaded and testified to as being within Abusoro Community Land.
The Appellants denied that the land in dispute was within Abusoro Community land and that it was theirs and a distinct land for that matter. The law is that the name or etymology of a piece of land is not necessarily indicative of its identity. In a claim for a declaration of title to land the first and foremost duty on the claimant is to describe the land in dispute with such degree of certainty and precision that its identity will no longer be in doubt. In other words the land must be identified positively and without ambiguity. See Baruea v Ogunsola (1938) 4 WACA 159, Udofia V. Afia (1940) 6 WACA 216; Epi V. Aigbedion (1972) 1 All NLR (Pt. 2) 370; Awote V. Owodunmi (No. 2) (1987) 2 NWLR (Pt. 57); Makanjuola V. Balogun (1989) 3 NWLR (Pt. 108) 122 .
The Plaintiffs by their witnesses called the land Abusoro Community land but proceeded to give it location, dimension and boundaries. This, they did as is incumbent on them. See Oladimeji V. Oshodi (1968) 1 ALL NLR 47; Epi V. Aigbedion (supra) where the identity of the land is not strictly proved, the Plaintiff?s claim will be dismissed, as no Court will decree a declaration of title to land or a decree of entitlement to a right of occupancy, or to an injunction over a piece of land whose identity and certainty is not precise and clear. See Ogbu V. Wokoma SC (2006) 133 LRCN 191; (2005) 14 NWLR (Pt. 994) 118.
In this case, the Defendants/Appellants pleaded in paragraphs 50 of their Amended 1st Further Further Amended Statement of Defence of 15th August 2016 thus;
“Defendants presently have ancient coconut trees, huts and farm on the land and the land sold by the Defendants are not on Plan No. AURPO/AKN/L/003/2002. Their land which is different, is as shown on Plan No. AK/AURPO/L/398/98.”
By paragraph 54 of the aforementioned pleadings, the Appellants, Defendants said their family land is distinct and separate from the Claimants’ Abusoro Community land.
However, contradictorily, these same Appellants by their paragraph 58 pleaded thus –
“The Defendants say that in Abusoro, there are various operational layouts one of which is Falemu Familoyo family layout duly approved by the government as contained in the letter ref PPUD/MP/195 of September, 2011.”
559. The Defendants state that at the time the Claimants surveyed and prepared Abusoro Community layout, it was surreptitiously done to cover the family lands of other people including that of the Defendants family without the consent of the families having portions of their own land at Abusoro.”
By the aforequoted averments, the Appellants had admitted that the area called Falemu Familoyo family land is within Abusoro community. This is clearly in contradiction to their denials in paragraphs 50 and 52 of their Further Further Defence. From this state of pleadings, it is obvious that the Defendants/Appellants plan verged Red in Exhibit ’13’ and shown in Exhibit C1 is the same land claimed by the Respondents and mutually admitted to be in Abusoro Community. The denial that their claimed land is in the Plaintiffs/Respondents Plan No. AURPO/AKN/L/003/2002 (EXh. ‘3’) cannot be true.
It is settled law that in civil proceedings parties are bound by their pleadings and any evidence which is at variance with the averment in the pleadings goes to no issue and should be disregarded by the Court. See (i) George and Ors V. Dominion Flour Mills Ltd (1963) 1 All NLR 71 at 77; (ii) Emegokwue V. Okadigbo (1973) 4 SC 113; (iii) Orizu V. Anyaegbunam (1978) 5 SC 21 page 387 42.
The Defendants/Appellants, bound by their pleadings had made the case of the Plaintiffs/Respondents simple. The burden had been discharged as relating the identity of the land claimed and that it was in Abusoro community. Had the respondents/Plaintiffs then proved by preponderance of evidence their claim of title by traditional evidence pleaded by them?
The Claimants/Respondents by their evidence in proof of their pleadings – testified to traditional history of Abusoro Community. How it was founded by Aladegbuji Ojijigogun, who left Oke-Oge with the consent of his father, the then Deji Arakale of Akure. That the said Aladegbuji Ojijigogun then invited his siblings namely Agbejiga and Adegoroye to the land and they became joint owners of the land. That Ojijigogun also invited a herbalist called Opa to live on the land with him. That the land devolved on the descendants of the founder and his two siblings (brothers) aforementioned after their demise.
That Aladegbuji Ojijigogun begat Adetula, who begat Samuel Afe, Samuel Afe begat Oni Afe and David who are the 1st and 2nd Claimants/Respondents.
That Opa the herbalist brought the forefather of the Defendants to the land now in dispute and that Ojijigogun granted land to Familowo who acknowledged the over lordship of the Ojijigogun by way of payment of Tributes. The Claimants had therefore given the names of his, the founder of the land he claims through him and traced the genealogy to themselves and how the land was founded.
Defendant gave the names of its founder as Solo Familowo and mentioned the succession tree up to them. They did not however testify as to how Familowo founded the land and the various acts done by the members of the genealogy and the devolution to them of the land.
It should not be lost sight of that the land had been admitted to be in Abusoro community, what did the Appellants do in respect of the land as respecting its founding and why is it in Abusoro Community? They admitted that it is some of their members that have land in the disputed land which the Plaintiffs/respondents included in the Abusoro community land without their consent and surreptiously, too.
The Respondents had sued as the Olu of Abusoro and principal or heads of families that founded the community.
The trial Court had asked at page 23 of the Record i.e. part of its judgment thus:
“The first duty of this Court is to find which of the two competing versions of the traditional evidence adduced by the parties is more probable by testing it against the other evidence in the case. Dibiako V. Osakwe (1989) 3 NWLR (Pt. 107) 101 @ 112.”
The admission of the Defendant/Appellant of the land being in Abusoro community; the inconsistency or contradiction in their evidence as to the identity of the land and their association with ‘Apa’ in settling on the land in dispute are factors that weaken the Defendants case; The Respondents are entitled to take the benefit of the weakness of the Defendants’ case as it strengthens the Respondents claim.
I agree with the trial Judge when he stated at page 23 of the Record thus:
‘… the approach is not to look at facts in recent years as a first line reasoning, and then to pick one of the two histories as victorious. If it were so, a party with obvious discredited history but who managed to point to facts in recent years created by it from some advantage might simply defeat the true owners of the land in dispute.’
The Appellant had simply testified that they have old coconut tree on the land and some old huts built by their ancestors. That in cross-examination, the respondents’ witness did not know how long the huts had been there did not make a case of title in the Appellants’ favour, without how they got the land, proved. The Respondents had not denied that the Appellants were allowed to settle but as tenant on Tribute. After all subject to good conduct and non denial of over lord’s title, a customary tenant enjoys possession in perpetuity such that it is akin to title.
In this matter on appeal, I have not seen from the record where the traditional evidence of the parties are each in conflict. The Appellants’ evidence of traditional history aids the Respondents? case. The Respondents’ history is more probable and conclusive. The Two cannot be declared inconclusive, for it is only in such circumstances, that the Court may proceed to declare both inconclusive and proceed to decide the case on numerous and positive acts of possession and ownership.
The circumstances of the Exhibits tendered i.e. Exhibit C7, Exhibit 3, Exhibit C, Exhibit 13 are such as show the unity of the land claimed and as being in Abusoro community land, which ancestry and genealogy of founding had been settled.
On the preponderance of evidence, the respondents had proved their entitlement to a declaration of title. This takes me further to the ancillary issue 2, whether the trial Court was not in error when it failed to consider the Rule in Kojo II V. Bonsie (1957) 1 WLR at 1223. The Rule in Kojo II V. Bonsie is a rule of residual application. That is to say, it is a Rule to be invoked where in a competing claim of title to land, both of the competing claims have been found to be sufficiently credible or where each of them is likely to be true. In order not to jettison one for the other, there should be corroborative evidence of recent acts of possession or ownership such that would make the claim of title of the one side more probable than the other. There was, in this case, no basis for the invocation of the Rule in Kojo (II) V Bonsie (1957) 1 WLR 1223. Appellant?s Issue Number 2 is resolved against them.
It is obvious from the record that from the defences of statute of limitation and in particular laches and acquiescence as raised, is indicative of Appellants who, tacitly have admitted the Respondents? legal right to the land in dispute; but who are only asserting an equitable defence to the suit instituted against them.
The trial Court rightly found the acts of writing letters of complaint and threat of action in solicitor?s letters by the Respondents and reporting to the Deji of Akure in-Council as acts that negated waiver or estoppel i.e. acquiescence and laches.
On the whole, the trial Court was right in holding that the Respondents had proved their right of title vide traditional history and was therefore not in error not to have dismissed the Respondents? claim for failure to prove their root of title.
Issue One of the Appellants, which is Respondents’ Issue No. Two (2) is also resolved against the Appellants and in favour of the Respondents. Indeed, the findings of facts based on the evidence led were such that the trial Court was on firm footing to have arrived at the decision that the Respondents had proved their entitlement for the all the reliefs sought.
The findings are not in my view, perverse, nor has the decision/occasioned any miscarriage of Justice. See Amadi V. Orisakwe SC (2005) 123 LRCN 1 (2005) 7 NWLR (Pt. 924) 385.
I have no reason to interfere, therefore. See Otanma V. YOUDUBAGHA (2006) 134 LRCN. Accordingly, I affirm the decision and dismiss this appeal.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read in draft the lead judgment just delivered by my learned brother Mohammed Ambi-Usi Danjuma, J.C.A. His Lordship dealt meticulously with all the issues canvassed in the appeal and I entirely agree with the reasoning and the conclusion arrived thereat, that the appeal is unmeritorious and ought to be dismissed. The appeal is accordingly dismissed by me. I have nothing more to add.
I abide by the consequential orders contained in the lead judgment including the order as to costs.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read before now the judgment delivered by my learned MOHAMMED A. DANJUMA, J.C.A.
I agree with the reasoning and conclusion arrived at in dismissing this appeal and affirming the decision of the lower Court.
In a claim for title to land, title goes to the person who proves a better title. Where a party in a land dispute relies solely on traditional history to prove his title as in this case, he must plead and prove the history in detail and by credible evidence. The trial Court having found that the respondents had on the balance of evidence proved their title was justified to confirm title to them. I therefore also see no reason to disturb his judgment. I dismiss this appeal and affirm the decision of the trial Court.
Appearances:
L. K. Dare, Esq.For Appellant(s)
F. Omotosho, Esq.For Respondent(s)
