MR. ERIC MAJEMITE & ORS v. MR. LUCKY IGBEN & ORS
(2019)LCN/12535(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/B/193/2010
RATIO
LAND LAW: TO INSTITUTE AN ACTION IN REPRESENTATIVE CAPACITY
“IDESOH & ANOR V ORDIA & ORS (1997) 3 NWLR (PART 491) 17, Adio JSC (of blessed memory) threw some light on this point thus; ‘The present action was instituted by the appellants as representatives of their family against the respondents also in, a representative capacity. A person’s family is a body consisting of the members of the family and it is a legal entity which is separate and distinct from each member of the family.'” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. MR. ERIC MAJEMITE
2. MR. JOHNBULL MAJEMITE
3. MR. JOHNSON MAJEMITE
4. MR. KINGSLEY OMOKO
(for themselves and on behalf of the Onomroba and Ekariere families) Appellant(s)
AND
1. MR. LUCKY IGBEN
2. MR. SUNDAY IGBEN
3. MR. URIEME IGBEN
(for themselves and on behalf of Eredoro of Effurun) Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A.(Delivering the Leading Judgment) :
This is the judgment in respect of the appeal filed by the Appellants via their Notice of Appeal filed on 7/9/07.
The Appellants in this appeal were defendants at the lower Court.
The judgment appealed against is that of Delta State High Court delivered on 2/8/2007.
The Plaintiff (now Respondents in their appeal) had instituted an action against the Defendants claiming as per paragraph 29 of their amended statement of claim thus:-
WHEREOF the plaintiff?s claim against the defendants jointly and severally is as follows:
a. A declaration that the plaintiff are persons entitled to the customary right of occupancy in accordance with Uvwie customary Law in respect of that portion of land lying and situate between Egberohor – Ugbosomedia Known and called Ugborsomedia/Avbevba land at Effurun, within the jurisdiction of this Honourable Court.
b) N10,000,000.00 (Ten million Naira) being damages for trespass in that the defendants, without the consent and or authority of the Plaintiffs broke and entered into plaintiff’s said land by unlawfully assaulting members of the plaintiff’s family on the disputed land and illegally tapping the rubbers’ trees, despite vigorous protests by the plaintiffs.
c) Interim and perpetual injunction restraining the defendants, their agents, servants and privies from further trespassing onto plaintiff?s land aforesaid.
Pleadings were filed and exchanged. The defendants counter claimed against the plaintiffs as follows:
WHEREOF the defendants claim against the Plaintiff jointly and severally as follows:
a) A Declaration that the Defendants are persons entitled to the customary right of occupancy to the disputed parcel of land as the persons on whom the land vested immediately before the commencement of the land Use Decree.
b) N25,000,000.00 (Twenty-five Million Naira) being damages for his acts of trespass to the said piece of land.
c) A perpetual injunction restraining the Plaintiff whether by himself, his servants, agents, privies and assigns from any further acts of trespass on the said piece of land.
The learned trial judge after hearing the parties entered judgment in favour of the plaintiffs but against the defendants in the following terms:
‘I have gone through the evidence on both sides. I prefer the evidence of the plaintiff and his witnesses. The evidence of P.W. 7, a senior member of the defendants’ family help to puncture the balloon of the defendants? evidence I reject the evidence of the defendants in this case.
In the circumstance, the plaintiff has proved on the balance of probability and judgment is hereby given in favour of the plaintiff against the defendants jointly and severally as follows:
1. It is hereby declared that the plaintiff and members of his family are person entitled to the Customary Right of Occupancy in accordance with Uvwie Customary Law in respect of the portion of land lying and situate at Urumu between Egberohor and Ugbosomedia known and called Ugborsomedia/Avbavba land at Effurun with the jurisdiction of this Honourable Court as reflected and verged Green in Plan No. 15C/DT/002/2000 dated 22/2/2000 prepared by Surveyor F.U. Iyawe a Registered Surveyor.
2. The defendants shall jointly and severally pay 150,000.00 as damages for trespass to the plaintiff’s land and assaulting to the members of plaintiff’s family.
3. The defendants by themselves, agent’s servants and privies are hereby perpetually restrained from further trespassing on the plaintiff’s said land.
4. The defendants’ counter claim is not proved. It is hereby dismissed.
5. The defendants shall pay N12,000.00 cost to the plaintiff.
Miffed by the above judgment the appellants filed a Notice of Appeal containing 5 grounds of appeal. They subsequently filed Amended Notice of Appeal with leave of this Court on 5/12/2016. The new Grounds of Appeal as per the Amended Notice of Appeal contain 15 grounds of appeal which read as follows:
1. The learned trial Judge erred in law when he held:
‘it is my view and I so hold, that the area in dispute or put in dispute by parties is the area verged green in their plans’.
Particulars of error
a.The finding of the learned trial Judge is at variance with the pleadings in the case.
b. The finding is at variance with the evidence adduced by the parties.
c. The learned trial judge amended the pleading of the parties by creating a different cause of action.
d. Parties are bound by pleadings and issues joined in the case.
2. The Learned trial Judge erred in law when he held that the Plaintiff has proved traditional history.
Particulars of Error
a. The Plaintiff did not prove the method of founding the land in dispute.
b. The learned trial Judge failed to apply laid down principles of law in resolving the issue of traditional history.
c. The learned trial Judge admitted that he had difficulty choosing between the competing versions of traditional history.
d. The finding of the learned trial Judge is not supported by evidence adduced in Court.
3. The learned trial Judge erred in law having accepted the evidence of the 3rd Defendant and 1st Defendant as being true as to the founding of the land, disbelieved the extent of the land founded by the Defendants’ ancestor.
Particular of Error
a. The evidence of the defendants was clear that the land founded by their ancestor included the land in dispute.
b. The plaintiff admitted in his pleadings that the ancestor of the defendants founded land area.
4. The learned trial Judge erred in law when he held:
‘I hold that the Defendants are bound by that decision of that customary arbitration and the defendants cannot relitigate on the ownership of the land.’
Particulars of Error
a. The purported customary arbitration has no connection to the land in disputed verged red in the survey plans of parties.
b. The customary arbitration lacks clarity in language and content to be relied upon as evidence of customary arbitration.
c. The Plaintiff did not call any of the marker of the document to identify or authenticate the document as customary arbitration.
5. The learned trial Judge erred in law when he awarded general damages for assault.
Particulars of Error
The Plaintiff did not justify the claim through any credible evidence adduced at the trial.
a. The learned trial judge did not believe the evidence of witnesses led in proof of the claim of assault.
b. The learned trial judge failed to consider Exhibit ‘F’, the judgment that discharged and acquitted the 1st Defendant of the charge of assault.
6. The learned trial judge erred in law in entertaining, hearing and determining the suit and entering judgment in favour of the Plaintiff when the Court had no jurisdiction to do so.
Particulars of Error
a. The claim in Court is incompetent, having been commenced and prosecuted by a non-juristic claimant who lacked competence in law to sue and or be sued.
b. On the evidence of claimants and the finding of the learned trial Judge, Eredoro family lacked locus standi to sue in this area.
7. The Learned trial judge misdirected himself in law when he held:
‘It is my view that the determination of the ownership of the land verged Green in the Plaintiff’s Plan will be the owner of the area verged red. This is so, because the defendants have not conceded the ownership of the area verged Green in their Plan to the Plaintiff. In the defendants’ Plan, areas outside the area verged Red are marked land of ONOMOBRA AND EKARIERE FAMILY NOT IN DISPUTE, is the area verged Green.
I think it is a misinterpretation or misconstruction of the plaintiff’s claim and the plan he filed. The evidence on both sided is not limited to the area verged RED but embraced or included the area verged Green.
It is my view and I so hold, that the area in dispute or put in dispute by parties is the area verge Green in their Plans. This is because the plaintiff has not conceded that area to the defendants nor has the defendants conceded it to the plaintiff.
Particulars of Misdirection
a. By the pleadings filed and exchanged by the parties, the land in dispute is the area verge Red in Exhibit ‘A’.
b. The area verged Green in Exhibit A was not put in issue by the parties in their pleadings.
c. Plaintiff in his further amended statement of claim and exhibit ‘A’, specifically pleaded the area verged Red as the land in dispute on which defendants are alleged to have trespassed.
8. Having rejected evidence of parties on traditional evidence of the founding and ownership of the land, the learned trial Judge misdirected himself in law in basing his judgment on the evidence of PW 3, PW 7 and Plaintiff.
Particulars of Misdirection
a. PW 3 and PW 7 not being members of the plaintiff?s family, are incapable of giving evidence of plaintiff family tradition.
b. PW 7 is a hostile witness and an enemy of defendants? family having regard to exhibit H-H13.
9. The learned trial judge erred in law when he held that evidence of Pw 7 punctured the defendant?s case ?
a. Pw 7 lied on oath before him
b. Documentary evidence and evidence of 1st and 3rd defendants were not considered.
c. The evidence of previous judgment.
10. The learned trial judge misdirected himself in law when he held thus:
‘I prefer the traditional history of the plaintiff. The defendants have not been able to prove that Eyaya founded the whole land including the land claimed by plaintiff in dispute.’
Particulars of Misdirection
a. His lordship has held unhelpful the traditional history by the parties.
b. The evidence of the 3rd defendant the trial judge accepted, is that Eyaya founded the land.
11. The learned trial judge erred in law in holding that:
‘Assuming without conceding that the above conclusion is wrong and the traditional evidence is on equal strength, the recent activities on that land do not also favour the defendants in my view.’
Particulars of Eror
a. Having rejected traditional history as unhelpful to the Court, his Lordship cannot resort to purported act of possession.
b. There was no credible acts of possession to ground title.
c. There was no onus on defendants to prove the negative
12. The learned trial judge misdirected himself in law when he held:
I am satisfied that plaintiff has shown more ownership activities in respect of the land than defendants.
Particulars of Error
a. The purported activities adverted to by the learned trial judge are outside the land in dispute as defined in the pleadings and on plaintiff?s Plan ? Exhibit ?A?.
b. No land purportedly sold by plaintiff is reflected in the land in dispute.
c. Nothing allegedly established by Eredoro is on the land in dispute
d. Save for 1st defendant?s rubber plantation reflected falsely as Igen Rubber Plantation on the land in dispute, none of the activities referred to by the learned trial judge is reflected in the land in dispute.
e. Defendants acts of ownership including documentary evidence of rent collect by PW 7 for the family were wrongly ignored.
13. The learned trial judge misdirected himself in law when he held:
From the available evidence, I hold that the plaintiff has proved ownership of the land. The plaintiff has shown that the area verged green including the verged red in Exhibit ?A? belongs to his family, Eredoro family.
Particulars of Misdirection
a.The findings of the learned trial judge to wit:
The evidence of the plaintiff is that Eredoro, the founder of the land gave the land to his daughter Iredi, when she got married. Under such condition, Eredoro male children have no share in that land. The land devolves on Iredi’s Children and descendants. That land can only revert to Eredoro’s male lines, if there is any calamity that ends Iredi’s line. is inconsistent with Eredoro’s continued ownership of the land.
b. The plaintiff did not prove ownership of the land in dispute as by law required.
c. The Plaintiff is not entitled to the relief granted.
14. The learned trial Judge erred in law in dismissing the counter claim before him in that :
a. He gave no valid reason for the dismissal of the claim.
b. He denied appellants a hearing on their counter claim in that he failed totally to give any consideration to its counter claim.
c. The accepted evidence of 1st and 3rd appellants proved the counter claim which was not in fact contested.
15. The learned trial Judge erred in law in his award of general damages for trespass and assault on allegedly family members in that:
a. It is wrong to award a lump sum damages for trespass and assault on a person.
b. The person allegedly assaulted made no claim and is not a party to the case.
After transmission of record of appeal parties filed and exchanged briefs of argument.
APPELLANTS’ BRIEF OF ARGUMENT
The Appellants’ Brief of Argument was deemed filed on 20/4/17. It was settled by their Counsel HARRISON AGHWANA, ESQ. Learned Counsel to the Appellant’s formulated EIGHT Issues for determination; viz:
1) Has the learned trial Judge Competence and or jurisdiction to entertain, hear and determine this case commenced by and in the name of Eredoro family:
a) When the said family is not a juristic person?
b) Eredoro family lacks locus standi in the action?
2) Was the Learned trial Judge right in law in entering judgment for the Plaintiff for declaratory title to the land in dispute when:
a) by Plaintiff’s Pleadings and the evidence as to what constitutes the land in dispute is confused and was not proved?
b) The evidence given of boundaries was not boundary of the land in dispute verged Red in Exhibit ‘A’
c) the evidence of 1st and 3rd Appellants that Appellant’s ancestor founded the land was accepted?
d) Plaintiff?s case as pleaded was not proved?
3) Was the learned trial judge right in law in reading into Plaintiff’s pleadings what Plaintiff did not plead and thus substituting for the land in dispute verged Red as pleaded the area verged Green which Plaintiff did not plead.
4) Was the learned trial Judge right in law in predicating his judgment on the evidence of PW 3, PW 7 and the purported customary arbitration without evaluation whatsoever and without putting such evidence on the imaginary scale of justice with the evidence of 1st and 3rd Appellants which the trial Judge accepted under the principle laid down in MAGAJI VS ODOFIN (1978) 4 SC 91.
5) Was the learned trial Judge right in law in this case, in entering judgment for the Plaintiff when the learned trial Judge:
a) Had discredited and rejected the traditional evidence by parties’
b) Plaintiff’s case was not proved as by law required
c) Knew or should have known that PW 3 and PW 7 were not competent to give and did not give any evidence of tradition.
d) accepted the evidence of 1st and 3rd defendants but wrongly ignored appellants’ act of possession.
e) failed to evaluate the evidence of PW 7 in the light of the other evidence before him.
f) evidence in plaintiff’s case did not prove possession of the and in dispute.
d) wrongly put on appellants, the burden of proving the negative.
6) Was the learned trial Judge right in law in basing his judgment on the purported act of possession when on his own finding:
a) plaintiff did not to the exclusion of appellants, enjoy exclusive and peaceful possession of the land in dispute.
b) his lordship’s conclusion is based on his erroneous view that the land in dispute is not the area verged RED in Exhibit ‘A’.
C) he ignored documentary and other evidence before him.
d) Plaintiff failed to prove his title to the land by acts of possession.
7) Was the learned trial Judge right to dismiss the counter claim summarily without considering the same on its merit
8) Was the learned trial Judge right in law to award the damages of N150,000 for trespass and assault on Plaintiff family
SUBMISSIONS OF APPELLANT’S COUNSEL
ISSUE ONE
Learned Appellants’ counsel submitted that by the Plaintiff’s pleadings and evidence and the finding of the learned trial Judge, Eredoro’s alleged title to the land ceased when he gave the land to his daughter. Having allegedly passed his right or title to land to his daughter Iredi, learned Appellant’s Counsel contended that an action for declaration of title to the said land by Eredoro family is incompetent on the ground that Eredoro family has no locus standi to sue any more.
Learned Appellants’ Counsel further submitted that the learned trial Judge lacked Jurisdiction to entertain, hear or determine the action brought by Eredoro family for declaration of title to the land which on plaintiff?s showing was no longer owned by the Eredoro family as the learned trial Judge found.
He urged this Court to allow this appeal and resolve issue one in favour of the Appellants.
ISSUE TWO
Learned counsel to the Appellants submitted that the learned trial Judge erred gravely in his verdict adjudging plaintiff owner of the land in dispute which ownership he did not prove.
ISSUE THREE
Learned Appellants’ counsel submitted that the entire judgment in this case was based on his Lordship’s misconception that the land in dispute was the area verge GREEN in Exhibit ‘A’ and not the area verged ‘RED’ which plaintiff pleaded. He submitted that this misconception raised a fatal misdirection which occasioned a miscarriage of justice in the case.
ISSUE FOUR
Learned Appellants’ Counsel submitted that the learned trial Judge having wrongly held the area verged GREEN as the land in dispute on which parties joined issue, had completely missed the target. Learned Counsel further submitted on behalf of the Appellants that nothing contained in the evidence of plaintiff and his witnesses justified the conclusion that plaintiff has proved ownership of the land and the four basses on which the judgment was predicted were all gravely faulty.
ISSUE FIVE
Learned Appellants’ Counsel submitted that in the absence of proof of the extent and boundaries of the land in dispute, plaintiff failed to discharge the onus on him as claimant of title to land and was not entitled to judgment which the Court gave. He further submitted that His Lordship was wrong to shift the onus of proof to Appellants.
ISSUE SIX
Learned Appellants’ Counsel submitted that the Plaintiff failed to prove his title to the land and learned trial Judge was wrong in giving judgment in favour of the plaintiff.
ISSUE SEVEN
Learned Appellants’ Counsel submitted that the Learned trial Judge was wrong in holding that the counter claim was not proved.
ISSUE EIGHT
Learned Appellants’ Counsel submitted that the award of general damages in this case is wrong in law.
He concluded by urging the Court to allow this appeal and resolve all the issues in favour of the Appellants.
RESPONDENTS BRIEF OF ARGUMENT
The Respondents’ Brief of Argument was deemed filed on 25/5/18. It was settled by their counsel GODWIN ODJESA.
Learned Respondents’ Counsel formulated NINE issues for determination; viz:
1. In a representative action, should the represented party be a juristic personality?
2. Could the plaintiff in the trial Court being descendants of Eredoro the founder and original owner of the land in dispute not bring this action on behalf of Eredoro family?
3. Did the Plaintiff in the Court below not prove his case as required by Law with respect to the declaration of title to the land in dispute?
4. Looking at the totality of Evidence in this case, was the land in dispute not known to all the parties in this matter, thus justifying the trial judge findings as to what constitute the land in dispute?
5. Was the learned trial Judge not right in his evaluation of the evidence relating to the customary Arbitration as given before the trial Court which took place before the case in the Court below as having been in favour of the Respondents?
6. Was the evidence of traditional History given in the Court below not rightly accepted by the trial Court having regard to the detailed evaluation of the evidence in that Court?
7. As against the Appellants herein, was the Court below not right in accepting the Respondents? evidence on acts of possession thus giving judgment in favour of the Respondent at the trial Court?
8. Having granted the case of the Respondents in the Court below and dismissed that of the Appellant, was the trial Court not right in dismissing the counter-claim of the Appellants in the Court below?
9. Was the award of damages of the sum of N150,000.00 for trespass and assault not justified?
ARGUMENTS OF RESPONDENT?S COUNSEL
ISSUE ONE
Learned Respondents’ Counsel submitted that this action was not defective at all but competent and was properly heard by the trial Court. He relied on NDUKA VS EZENWAKU (2001) 6NWLR (PART 709) 494.
ISSUE TWO
Learned Respondent’s Counsel submitted that once the plaintiff was able to trace himself to the Eredoro family and with the lower Court finding that Eredoro was the original founder of the land still standing, the plaintiff was entitled to the judgment he got at the lower Court. He further submitted that Boyikporo Igen, the Plaintiff at the trial Court who got judgment for whom the Respondents herein had been substituted was the person who was really and directly interested in the suit as party.
He urged that the whole of issue one of the Appellants be resolved against them and issue two of the Respondents correspondingly resolved in favour of the Respondents.
ISSUE THREE
Learned Respondents’ Counsel submitted that the Plaintiff in the Court below proved his case as required by law, and the learned trial judge was right in entering judgment in favour of the plaintiff for a declaratory title for the land claimed by the plaintiff. Learned counsel to the Respondents further submitted that the trial Court was right in looking at the numerous and positive acts of the Plaintiff and his family over the land in question in the alternative before adjudging the ownership of the land in favour of the Plaintiff. He relied on OPUZIBAU VS KWOKWO (2001) FWLR (PART 76) 673 at page 685.
He urged this Court to resolve Issue No. 2 of the Appellants against them.
ISSUE FOUR
On Issue 4, Learned Respondent’s Counsel urged this Court to adopt the argument in their Issue No. 3 and resolve this issue in favour of the Respondents.
ISSUE FIVE
Learned Respondents’ Counsel submitted that the reliance by the Respondents at the trial Court on the Customary Arbitration was not questioned by the Appellants in their Issue No. 4. Learned Respondents’ Counsel submitted further that the evaluation of the evidence on Arbitration was detailed enough and sufficient for the trial Court to find in favour the plaintiff now substituted by the Respondents in this matter. He urged this court to resolve their issue in favour of the Respondents.
ISSUE SIX
Learned Respondents’ Counsel submitted that the trial Court was right in entering judgment in favour of the Plaintiff. He submitted that considering that the Appellants counter claimed for title to the land in question, the burden of proof on them is as heavy, primary as that on the Respondents. He relied on OKHUAROBO VS. AIGBE IGUH (2002) 97 LRCN 1033 AT 1051.
ISSUE SEVEN
Learned Respondents’ counsel submitted that the Plaintiff in the trial Court was able to show that on this land in question, he enjoyed exclusive and peaceful possession of the land. He further submitted that on the question of acts of ownership the trial Court clearly dealt with the documentary evidence before him and came to the conclusion that the plaintiff in the Court below proved his title by acts of possession or ownership. He urged this Court to resolve this issue in favour of the Respondents.
ISSUE EIGHT
Learned Respondents’ counsel submitted that the trial Court thoroughly considered the evidence on both sides and preferred the evidence on the side of the Plaintiff to that on the side of the defendant. He urged for this issue to be resolved by this Court in favour of the Respondents.
ISSUE NINE
Learned Respondents’ Counsel submitted that the Appellants herein under their issue No. 8 were seeking to misinterpret the judgment of the trial Court as the N150,000.00 awarded as damages was on the trespass committed on the land being general damages and not special damages.
In conclusion, he urged this Court to dismiss the Appeal of the Appellants and uphold the judgment of the trial Court.
APPELLANTS’ REPLY BRIEF
The Appellants’ Reply Brief was deemed filed on 24/10/18. It was settled by their counsel HARRISON AGHWANA.
Learned Appellants’ Counsel submitted that the evidence of the plaintiff and the 1st Defendant that the land in dispute was along Ohore/Adagbrasa Road did not relieve the onus on the Plaintiff to prove with certainty and clarity, the size, location, features and dimension of the land in dispute which the Plaintiff did not go in this case especially where the Appellants had put the identity of the land in dispute in issue. He relied on ANYANWU VS UZOWUAKA (2009) ALL FWLR (PART 499) 411 AT 437 PARAGRAPHS B – C.
Learned Appellants’ Counsel further submitted that the learned trial Judge having found that the boundaries of the land in dispute verged RED in the pleadings and evidence of PW2 and Plaintiff, did not tally with details of the land verged RED in the survey plan, he was wrong to go on voyage of his own to patch the plaintiff?s case on the identity of land in dispute and made a declaration of title for the plaintiff on the survey plan. He also relied on OLUFOSOYE VS OLORUNFEMI (1989) NWLR (PART 95) 26 AT 42 PARAGRAPHS C- E.
Learned Counsel to the Appellants submitted that the award of N150,000.00 for trespass and for assault of Plaintiff’s family which is wrong in law as one did not know how much that was awarded for trespass and the amount that was awarded for assault.
He concluded by submitting that the judgment/decision of the trial Court was perverse as it contained various fundamental errors and should be treated by this Court as such. He urged this Court to set aside the decision of the trial Court and allow this appeal.
RESOLUTION OF ISSUES
I have carefully considered the arguments canvassed by the learned counsel on both sides. I am of the respectful view that issues formulated by the Appellants who are the aggrieved, and which I consider adequate should be adopted for the just determination of this appeal.
I have closely examined the issues as formulated by learned appellants counsel. I am of the firm view that the issues are condensable into 5 issues for the just determination of this appeal.
I hereunder reproduce the said issues for clarity’s sake.
1. Has the learned trial Judge Competence and or jurisdiction to entertain, hear and determine this case commenced by and in the name of Eredoro family:
a) When the said family is not a juristic person?
b) Eredoro family lacks locus standi in the action?
2) Was the Learned trial Judge right in law in entering judgment for the Plaintiff for declaratory title to the land in dispute when:
a) by Plaintiff’s Pleadings and the evidence as to what constitutes the land in dispute is confused and was not proved?
b) The evidence given of boundaries was not boundary of the land in dispute verged Red in Exhibit – A
c) the evidence of 1st and 3rd Appellants that Appellant?s ancestor founded the land was accepted?
d) Plaintiff’s case as pleaded was not proved?
3)could the evidence in the record of appeal sustain the findings of facts and conclusion of the learned trial Judge in this judgment
4) Was the learned trial Judge right to dismiss the counter claim summarily without considering the same on its merit?
5) Was the learned trial Judge right in law to award the damages of N150,000 for trespass and assault on Plaintiff family?
ISSUE NO 1
Has the learned trial Judge the competence and or jurisdiction to entertain, hear and determine this case commenced by and in the name of Eredoro family.
a) when the said family is not a juristic person.
b) Eredoro family lacks locus standi in the action.
On issue 1(a)
The answer is YES. Learned appellants counsel has not asserted that Lucky Igben, Sunday Igben and Uriemu Igben who sued for and on behalf of the Eredoro family are not natural persons. He has not suggested that they are non-juristic persons. His grudge seems to be with respect to the family represented. Now the said named persons i.e. Lucky Igben, Sunday Igben and Ureimu Igben are dominus litis. The action is not only by them but also by the persons being represented by them even though those represented are not stated eon amin. SEE IN RE OTUEDON (1995) LPELR 1506 (S.C.) OTAPO V SUNMONU (1987) 2 NWLR (PT 58) 587, IN RE APEH & ORS (2017) LPELR -42035(SC).
If an action is prosecuted in a representative capacity even though it is not so expressly stated the Court can proceed to enter judgement for or against a party in that capacity. See AYENI & SOWEMIMO (1982) 5 S.C. 60, AFOLABI & ORS VS ADEKUNLE & ANOR (1983) L.P.E.LR ? 1984 (S.C.)
It was not the contention of the appellant that Eredoro Family was nonexistent. The submission of learned counsel on the above therefore appears unappealingly and unnecessarily technical. Even the names of the representatives alone can sustain the action. In my respectful view also Eredoro family seems to me a mere descriptive name given to a body of natural persons. If the name is wrong it is then a mere MISNOMER and that will not vitiate the action, see MAERSK LINE & ANOR V ADDIE INVESTMENT LTD & ANOR (2002) 11 NWLR PART 778 PAGE 317. It is a mere description without any vitiating effect on the action.
In a further argument learned counsel contended that Eredoro family lacked locus standi to institute the action thereby depriving the lower Court of jurisdiction.
What is locus standi: Rhodes-Vivour J.S.C in Daniel V INEC & ORS (2015) LPELR-24566(S.C.) explained it this way. Locus standi conotes the legal capacity to institute proceedings in Court. It is a threshold issue that goes to the root of the suit.
On no account should the merits of the case be considered before the locus standi is decided.
What is the standing of the Plaintiffs/Respondents in this action? Paragraphs 5 and 6 of the further amended statement of claim of the plaintiff at the lower Court state very clearly thus:
‘The land was founded by late Eradoro. Eradoro begat several children amongst who are (1) Adejekuko, (2)Ragi (f), (3) Okoro (m), (4) Erounaefe (m), (5) Noneghre (f) and many others
Ragi (f) was one of the children of Eradoro, the founder and original owner of the land in dispute. When Ragi (f) was being given out in marriage by her father, Eradoro, the land was also given to her and her husband and children. Ragi was married to Onogbehe (Chief), now late Onogbehe and late Ragi begat Onojake, Onojake begat Igben – who is the father of the plaintiff. Plaintiff is also the present head of Igben family.
PW3 Mary Ojiki in her evidence also said the land was given to Eredi, exclusively. See page 138 of Record of Appeal.
The learned trial judge in his judgment accepted as a fact that the land in dispute had been given out as marriage gift to Eredi by Eredoro.
His lordship stated on page 272 of the record of appeal thus:
The evidence that Eredoro founded the land, farmed on it, had things on the land and gave it as a marriage gift to his daughter, Eredi is not dislodged under cross-examination. The defendants in evidence however denied it and alleged that their maternal ancestor Eyaye founded the land.
In Urhobo land, it is not unusual for a father, a founder of any area of land to give land to a daughter as a marriage gift. That evidence is credible. I accept it.
This finding of fact does violence to the claim of the plaintiffs who claim the land in dispute as belonging to Eredoro family. If the land was given out by Eredoro it no longer belongs to Eredoro family but Eredi family. So on what basis has Eredoro family instituted this action? Over a piece of land which no longer belongs to them? After a party has fully diverted himself of interest in land no further right rests in him in respect of the land anymore. See EBGUCHE V IDIGO 11 NLR 140; UGO V OBIEKWE (1989) 1 NWLR (PART 99) 566 KARI V GANARAM & ORS (1997) 2 NWLR (PART 488) PAGE 389
The learned trial judge in his conclusion held that he preferred the evidence of the plaintiff which was at logger head with itself and thereby arrived at a conclusion which could not be sustained by the claim of the plaintiff. The land does not belong to Eredoro family. Eredoro family should not have instituted this action over another man?s land.
Learned counsel for the Respondent had contended that the plaintiff was the dominus litis and so the fact that he instituted the action for and on behalf of Eredoro family did not really matter as the Court could proceed to enter judgment in his favour. I respectfully disagree. The capacity in which a plaintiff institutes an action is important. True as dominus litis, he is in control of the litigation. However what he does in a representative capacity is quite distinct from what is done in a personal capacity. By this action Eredoro family is claiming the land given out exclusively by their forefather, to Iredi. If the Plaintiff and/or member of Iredi family had instituted this action, it would have been different. IDESOH & ANOR V ORDIA & ORS (1997) 3 NWLR (PART 491) 17, Adio JSC (of blessed memory) threw some light on this point thus; ‘The present action was instituted by the appellants as representatives of their family against the respondents also in, a representative capacity. A person’s family is a body consisting of the members of the family and it is a legal entity which is separate and distinct from each member of the family.’
To argue that a Court can proceed to give judgment in favour of the plaintiff inspite of the case of the plaintiff which claim, the land in dispute as that of Eredoro family is to radically and fundamentally change the face of the case to the prejudice of the defendants. Eredoro family in my respectful view lacked locus standi in this action.
Consequently the learned trial judge with due respect lacked jurisdiction to entertain the action. I therefore resolve issue (1b) in favour of the Appellants.
ISSUE NO. 2
Was the Learned trial Judge right in law in entering judgment for the Plaintiff for declaratory title to the land in dispute when:
a)by Plaintiff’s Pleadings and the evidence as to what constitutes the land in dispute is confused and was not proved?
b) The evidence given of boundaries was not boundary of the land in dispute verged Red in Exhibit A
c) the evidence of 1st and 3rd Appellants that Appellant’s ancestor founded the land was accepted?
d) Plaintiff’s case as pleaded was not proved
On this issue, I have carefully gone through the entire proceedings. It seems to me, with due respect to the learned trial judge, his lordship unsolicitedly but unwittingly charted the course for judgment for the plaintiff. The law is trite on what is expected of a plaintiff in a land matter.
The first duty of a plaintiff who comes to Court for a declaration of title is to show the Court clearly the areas of land which his claim relates to. See EPI & ANOR V AIGBEDION (1972) 1 ALL NLR 805;.
According to ADEKEYE J.S.C. in MOMOH & ORS V UMORU & ORS (2011) 15 NWLR PART 1270 PAGE 217
the primary duty placed on a plaintiff who comes to Court to claim a declaration of title to land is to show the Court clearly the area of land to which his claim relates so the land identified with certainty. The plaintiff has to prove title to a defined area to which the declaration can be attached. Where the land being claimed is contained in a survey plan it must show clearly the dimensions of the land the boundaries and other features.
GBADAMASI V DAIRO (2007) 3 NWLR (PART 102) PAGE 282; DADA V DOSUNMU (2006) 18 NWLR Part 1010 page 134; OGEDENGBE V BALOGUN (2007) 9 NWLR (PART 1039) page 380; ADELUSOLA V AKINDE (2004) 12NWLR (PART 887 page 295; OKOCHI V ANIMKWOI (2003) 18NWLR (PART 851) PAGE 1.
Failure of the plaintiff to prove the said boundaries of the land with certainty leads to dismissal of the claim for declaration of title to land, see IMAH & ANOR V OKOGBE & ANOR (1993) 9NWLR PART 316 PAGE 159; OGEDENGBE & ORS V BALOGUN & ORS (2007) 9 NWLR (PART 1039) 380.
In the action now on appeal the boundaries of the land claimed by the Plaintiff are as per paragraph 3 of the further amended statement of claim which read thus:
‘The land in dispute in this case is within Uromu Farm land lying and situate along Adagbarase/Oku-Ohoro Road, otherwise known as Egbarohor down to Ugborosamodia along Effurun/Sapele Road, before Ohoro Village within the Jurisdiction of this Honourable Court. The exact position, dimension and features are correctly shown on a survey plan No. 15C/DT/002/2000 prepared by F.U. Iyawo, a Licensed Surveyor of No. 87, Ekewan Road, Benin ? City. At the trial of this case, the plaintiff shall rely on the said survey plan dated 22nd of February 2000 which is annexed in this statement of claim. The entire plan together with all the features are herein pleaded.’
In paragraph 17 of the further amended statement of claim the plaintiff described the land in dispute thus:
‘The land in dispute in this case is verged Red in the Plaintiff’s survey plan with Plan No. 15C/DT/002/2000 dated 22nd day of February 2000 drawn by Licensed Surveyor F.U. Iyawe. The land has common boundaries with 1) the plaintiffs’ land to the south 2) Onogbeha family to the North and 3) the defendants? family land to the west and (4) Osubi Okuokoko Community land, otherwise known as Ugbosomodia/Avworo land.’
The learned trial Judge in his judgment observed on the issue of boundaries of the land thus:
‘The boundaries mentioned above are not boundaries with the portion verged Red but the area verged Green in the Survey Plan quoted, above, Exhibit A. the same thing goes for the defendants. The boundaries pleaded and contained in the plan and given in evidence are not boundaries with the area verged Red but the area verged Green in their plan, i.e. Exhibit E.’
It is clear that the plaintiff double spoke during the trial. Which is the land in dispute? The area verged Red or Green in the plaintiffs plan.
The Plaintiffs’ case should have collapsed as a result of this. To my mind, it is not for his lordship to put the plaintiffs’ house in order for him. I am of the respectful view that the learned trial judge took part in the dispute contrary to the role of a judge. See YUILL V YUILL (1945) 1 ALL ER 183; MADUEKE & ANOR V IGP (1959) LLR page 142. I resolve this issue in favour of the Appellant in the circumstance.
ISSUE 3
Issue 3 read thus: could the evidence in the record of appeal sustain the findings of facts and conclusion of the trial Judge in his judgment?
This issue challenges the evaluation of the evidence by the trial judge.
The Plaintiff called 7 witnesses to prove their case to the effect that the land in dispute was Eredoro family land.
The Plaintiff called Mary Osiki as their 3rd witness. Mary Osiki gave evidence to the effect that the land in dispute belonged to the mother of plaintiff?s father exclusively.
Esther Igben, gave evidence as PW 6. Her evidence was to the effect that the land in dispute belonged to her husband – Boykporo IGBEN.
The plaintiff gave evidence next. His contention was that the land in dispute was given to Iredi to farm because the land was close to Oharhe.
Apart from the above the learned trial judge accepted two divergent versions of the history of the land. His lordship accepted that Eredoro founded the land and also accepted the defendant’s version that Eyaya founded the land. The learned trial judge in the face of all the above proceeded to prefer the evidence of the plaintiffs to that of defendants, hammering on the fact that a senior member of the defendant’s family gave evidence against the defendants. The said senior member of the defendant’s family was PW 7 Benson Ovri. His evidence directly conflicted with the evidence of the 3rd defendant who was a High Palace Chief, the oldest man in Effurun and the second oldest man in Uvwie. Surprisingly his lordship accepted the evidence of the two witnesses.
I am of the respectful view that the finding of the lower Court that the land in dispute belonged to the plaintiffs despite the conflicting evidence before the Court was perverse. A perverse finding of fact of a trial judge can be set aside on appeal. See DADA & ORS V BANKOLE & ORS (2008) 5 NWLR (PART 1079) 26.
I resolve issues 3 in favour of the appellant in the circumstance.
ISSUES 4 AND 5
In view of my earlier findings that the findings of the learned trial judge were perverse and that the plaintiffs failed to prove the boundaries of the land in dispute with precision, I resolve issues 4 and 5 in favour of the Appellant.
This Appeal succeeds in part, it is hereby allowed. The proceeding and judgment of the lower Court in Suit No. EHC/200/96 delivered on 2/8/2007 are hereby set aside for lack of locus standi on the part of the plaintiffs and consequently want of jurisdiction. See AJAYI V ADEBIYI & ORS (2012) 11 NWLR PART 1310 paqe 137.
The counter claim is equally. affected having been instituted against the plaintiffs who had no locus standi. The Plaintiff claim and the Defendants counter claim are accordingly struck out. Parties are to bear their respective costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I agree
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned brother T.O. AWOTOYE, J.C.A., has afforded me the opportunity of reading before now the judgment just delivered. I agree with the reasoning and conclusion that the appeal succeeds in part. I also allow the appeal in part. I abide by the consequential orders made in the leading judgment including the order relating to costs.
Appearances:
Thompson Okpoko, SAN with him, H.E. Aghwana
For Appellant(s)
Godwin Odjesa with him, Ejiro Ejakpovi (Mrs.)For Respondent(s)
