ODIETE & ORS v. RIOKA & ORS
(2020)LCN/15387(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, September 02, 2020
CA/AS/299/2019
RATIO
CIVIL PROCEEDINGS: BURDEN OF PROOF: DETERMINING THE RELEVANCE OF PREPONDERANCE OF EVIDENCE
As it were, the Appellants’ case was fluid and civil matters being decided on the preponderance of evidence the minimal evidence required on the part of the claimants, now respondents preponderated and tilted the scale in favour of the Respondents who were plaintiffs at the trial Court; as the Appellants was unable to show how the said land had its title to the Respondent divested.
In Oyovbiare Vs. Omamurhomu (1999) 71 LRCN 2650 at 2667, the Supreme Court, per Ogwuebu, JSC held thus:
“…..it is also an established rule that once it is proved that the original ownership of property is in a party the burden of proving that the party had been divested of the ownership rest on the other party.
SeeIsiba & Ors Vs. Hanson & Ors (1967) 1 ALL NLR 8 at 10…”
The trial judge was correct when he held that the Appellant had not proved that the Respondents had been divested of their title in the land in dispute. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
CIVIL PROCEEDING: RELEVANCE OF A LEGAL DEFENCE PREDICATED UPON JUSTERTII
The prolific averments and evidence on the history of the land, was of no legal consequence in respect of the claim at the trial Court as the Defence asserted merely is one of alleged lawful occupation or license from a third party.
The law simply is that there is no legal defence predicated upon justertii, a right or defence based on a third party right.It is not a defence to an action in trespass or declaration of title. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. MR. FREEBORN ODIETE (AKA OPISTO) 2. MR. ABEL ODIETE 3. MR. PAUL ODIETE APPELANT(S)
And
1. PA. DANIEL RIOKA 2. MR. LUCKY OKOTETE 3. MR. JOSEPH RIOKA 4. MR. EFEGBERE ELOHOR 5. MR. RIOKA GODWIN 6. MR. EFEGBERE ESE 7. MR. EFEGBERE TUWERE 8. MR UWHATA EFE (For Themselves And On Behalf Of Members Of Owhase Town/Community) 9. O. R. EGORR, ESQ., (For Himself And On Behalf Of Members Of The Egoor Family Of Evwreni) RESPONDENT(S)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Delta State of Nigeria Holden at Effurun on Thursday the 7th day of March 2018, whereat E. N. Emudainohwo, J granted the reliefs sought by the plaintiffs/respondents and in the following terms:
(1) A Declaration that the Claimants and members of the Owhase Town/Community are the persons’ entitled to be granted the Statutory Right of Occupancy in respect of all that piece or parcel of land lying and situate at Along Udu Bridge Road, Owhase Town, Udu local Government Area of Delta State, which piece or parcel of land is well known to all the parties in the action.
(2) A Declaration that the conducts/acts of the Defendants in intimidating, disturbing, frustrating, preventing and harassing the Claimants and members of Owhase Town/Community and/or trespassing onto Claimants’ land causing damage thereon and/or selling and leasing Claimants’ land are unwarranted, unlawful, illegal, unconstitutional, null and void.
(3) The sum of N500,000 is hereby awarded to the claimants against the defendants as damages for
trespass .
(4) An order of perpetual injunction is hereby made restraining the defendants, by themselves agents, servants and or privies from trespassing, further trespassing, selling, leasing, interfering, disturbing, preventing and or in any way or manner whatsoever from doing anything inconsistent with and/or inimical to the claimants’ peaceful possession of the said piece or parcel of land verged red and shown in litigation plan No DT/SC/975/4972/2017 of 27/7/2017 by Surveyor Dabiri O. Thomas in this suit, marked as exhibit CL1.
The Appellant herein, had taken out a writ of summons on the 1st day of November 2016 and which was accompanied by a statement of claim, witness statement on oath and accompanying documents etc.
BRIEF OF FACTS RELEVANT TO THE APPEAL
The claimants’ by their amended statement of Reply to the joint further amended statement of Defence and witness statement of oath brought out the facts clearly thus; that the claimants and members of the Owhase Town/Community are the lawful beneficial owners of all that piece or parcel of land lying and situate along the Udu Bridge Road, Owhase Town, Udu Local Government Area of Delta State having inherited same under Urhobo Udu Native Laws and Customs of Uwhase people from their ancestors (Ohwase) who founded same from time immemorial and handed down from generation to generation before the present claimants.
It was also the claimants case that in exercise of their acts of possession and ownership the ninth (9th) claimants father acquired part of the land from the Owhase community which part is covered by a certificate of occupancy No. BDSR9215. The claimant pleaded their genealogical tree on the land.
The Defendants/Appellants challenged the claimants assertion and claimed that the land was originally founded and owned by their own ancestors.
They however alleged that the land was subsequently acquired by the Government of the mid-western state and they had to subsequently apply for the grant of a temporary use and occupational licence from the ministry of Lands, Surveys and Urban Development circle office, Warri for the use of part of “Ogode Bush” being the land in dispute and known to the parties.
The Plaintiffs/Respondent deny this averments and at the trial called evidence in proof of their claim and inclusive of proof of 22nd June 2020. It is instructive that the Respondents had also filed a Respondents Brief of argument dated 8th August 2019 on the 9th of August 2019 by leave of Court extending time to so file. It was settled by C.E.O. Agabi, Esq. of counsel, and accordingly also deemed as properly filed on 8-6-2020 and adopted at the hearing.
The Appellant who had filed an earlier motion on 7-6-2019 for the stay of execution of the Judgment of the trial Court on appeal. Now and injunction did not move same and it is taken as overtaken by event and therefore otiose just as the Respondent, who had also filed a Notice of intention to rely on preliminary objection pursuant Order 10 Rule 1 of the Court of Appeal Rules 2016 and ostensibly abandoned same at the trial.
The motion for stay of execution and injunction and the Notice of preliminary objection the acquisition of only a part of the larger land for the purpose of the construction of the Bridge across Udu River with the Road as its boundary thereof with its neighbours whose part of their land was also acquired for the Udu Bridge.
The documents of acquisition of the entirety of the land inclusive of the land in dispute was denied as not including or enclosing the land in dispute which the plaintiff/respondent claimed and asserts a fraudulent attempt against by the Respondent to claim the said land in dispute in connivance or in purported consort with the Delta State Ministry of Lands, Urban Development and Surveys which was neither a party to the suit nor shown any acquisition and vesting of any title in favour of the Appellant, as after all it had no such title in the land to vest.
It is pertinent to produce the Appellants’ narration of the facts in reiteration that the 1st to the 8th Respondents are native of Owhase Town/Community, while the 9th Respondent is from Egorr Family of Evwreni Town both of Delta State. The Appellants are Executives of the Ogowhorhor Timbers Marketer & Sawers Association, Ovwers sued in the Court in their individual capacity.
3.1 The 1st to the 8th Respondents are natives of Owhase own Community, while the 9th Respondent is from the Egorr Family of Evwreni Town both of Delta State. The Appellants on the other hand are Executives of the Ogwhorhor Timbers Marketers & Sawers Association, Ovwian sued at the trial Court in their individual capacity.
3.2 The case of the Appellants at the trial Court was that the land in dispute is part of a larger land known and referred to as Ogode bush or land which was originally deforested and founded by their ancestor, Pa. Ogwhorhor from time beyond human memory until same was acquired by the then Mid-Western State Government (now Delta State Government) for public use vide the Mid-Western State Government Gazette No. 26 Vol. 11 Notice No. 222 of 1974.
3.3 It is the case of the Appellants as Defendant at the trial Court that in the year 2010, the Executives of the Ogwhorhor Timbers Marketers and Sawers Association, Ovwian led by the Appellants themselves approached the Ministry of Lands, Surveys and Urban Development, (Circle Office), Warri for the land in dispute for the temporary use of their members for sawmill business.
3.4 That in response to the above, the Ministry of Lands, Surveys and Urban Development, granted the Appellants and their members temporary occupational license to use the said land in dispute for their sawmill businesses vide the payment of yearly ground rents to the Delta State Government.
3.5 That in the course of the above, the Respondents through their Solicitors, De-Nelson & Partners wrote several notices to quit to the Appellants and their members to vacate the aforesaid land in dispute, wherein the Appellants as Executives of the Ogwhorhor Timbers Marketers and Sawers Association, Ovwian took the said notices to their Landlords i.e. the Ministry of Lands, surveys and Urban Development.
3.6 That upon receipt of the said Notice, the Ministry of Lands, Surveys and Urban Development in turn wrote the Respondents a reply letter dated the 3rd day of August, 2016 with Reference No: 112CR/VoI.11/23 captioned RE: UDU BRIDGE ACQUISITION through their Lawyers, De-Nelson & Partners to the effect that the land in dispute was acquired by the then Mid-Western State Government (now Delta State Government) for public use vide the Mid-Western State Government Gazette No. 26 Vol. 11 Notice No. 222 of 1974.
3.7 The Respondents on the 1st day of November, 2016 barely three months after the receipt of the above letter from the Ministry of Lands, Surveys and Urban Development introducing themselves as Owners and Landlords of the land in dispute, commenced this action at the trial Court suing the Appellants who are tenants to the said Ministry of Lands, Surveys and Urban Development in their private capacity over the land in dispute.
3.8 At the trial Court the Respondents who were Claimants called four witnesses while the Appellants as Defendants called two witnesses. Both parties at the trial Court tendered the following documents as exhibits at pages 222 to 232 of the records.
It is upon the evaluation of the oral evidence called and documents tendered that the trial Court arrived at the decision appealed herein and upon the Notice of Appeal contain on pages of the record and filed on.
The record of Appeal having been transmitted out of time by leave of this Court granted on 8-6-2020 pursuant to motion filed on 9-7-2019 the Appellants’ Brief of Argument dated the 9th July 2019 and taken out by Oghenejabor Ikimi Esq. of counsel and filed same date and the Appellants’ Reply Brief of Argument filed on 08/10/2010 and also deemed filed on 8-6-2020 were both adopted at the hearing of the appeal on the … of the Appellant and Respondents respectively are each struck out for abandonment and want of prosecution.
The Arguments of the respective counsel on their respective stand will be clear in the consideration of the Issues articulated.
Now, the Appellants have distilled two issues for the determination of this appeal and as follows:
1) Whether by Exhibit CL10, the claim of the Respondents ought to have succeeded at the trial Court without first joining the ministry of lands, surveys and urban development who are land Lords to the Appellants.
2) Whether the learned trial judge’s evaluation of the evidence adduced by parties at the lower Court was proper in the circumstances.
On their part, the Respondent also raised two issues. This of course was after urging that the now abandoned preliminary objection be granted and the Issues raised be considered in the event of the failure of the preliminary objection.
The two Issues are one and the same save that the Respondents’ phraseology of the 2 Issues are more apt and I accordingly adopt same. They are;
1. Whether the non-joinder by the Respondents of the Appellants Landlord, the Delta State Ministry of Lands, surveys and urban Development can defeat the claim of the Respondents?
2. Whether the trial Court’s evaluation of the evidence adduced by the parties was not proper and/or whether the Judgment of the learned trial Court is against the weight of evidence adduced by the parties and thus perverse.
APPELLANTS ARGUMENT
Arguing the Issue 1, Appellants submit that it was not proper to have not joined the ministry of lands, surveys and urban development as they are necessary parties, having notified the Respondents by Exhibit 10, in this suit, that they are the owners and Landlords in respect of the land in dispute.
The Appellants’ counsel reechoed and reiterated the Respondents’ case as summarized in paragraphs 1 to 41 of the 1st claimant’s written statement on oath at pages 127 to 133 of the record wherein he said the Respondents led traditional evidence of how their ancestor founded the land in dispute and how the 9th Respondent in turn purchased part of the land in dispute from Owhase community represented by the 1st to the 8th Respondents.
Reiterates the Appellant’s case as set out in paragraphs 1 to 39 of the record; counsel reproduces the salient part of the statement on oath thus;
“2. That I know that the Defendants are Executives of the Oghworhor Timbers Marketers &. Sawyers Association, Ovwian sued in their individual capacity.
3. That I know also that in the year 2008, they registered the body known as Ogwhorhor Timbers Marketers & Sawers Association, Ovwian through the Ministry of Youths and Sports Development, Delta State and were in turn issued a certificate of registration with Registration No. 1822.
5. That I know that the land in dispute is part of the larger land known and referred to as Ogode bush or land deforested and founded by Pa. Ogwhorhor, the Defendants’ ancestor from time beyond human memory until same was acquired by the then Mid-Western State Government for public use and same covered by the Mid-Western State Government Gazette No. 26 Vol. 11 Notice No. 222 of 1974.
7. That I know also that the land in dispute is a portion of the larger Ogode bush or land acquired above for public use by the then Mid-Western State Government now Delta State Government in the year 1974.
8. That I know that in the year 2010, the Executives of the Ogwhorhor Timbers Marketers and Sawyers Association, Ovwian approached the Ministry of Lands, Surveys and Urban Development, Circle Office, Warri for the land in dispute for the temporary use of members of the Association as a sawmill.
9. That I know that the Ogwhorhor Timbers Marketers and Sawers Association was granted temporary occupational use of the said portion of land by the Ministry of Lands, Surveys and Urban Development, Circle Office, Warri where the Defendants and her members are presently carrying out their sawmill businesses.
25. That I also know that the Defendants did not trespass into any land owned by the Claimants, hence when the Claimants began issuing notices to quit to the Defendants and her members, they quickly informed the Ministry of Lands, Surveys and Urban Development, Circle Office, Warri who in turn issued a warning to the Claimants to the effect that the land in dispute is a State Government Land”.
It was pointed out that the Notices to quit issued by the Respondents tendered as Exhibits CL8A (i) – (iii), CL8B and CL8C and the letter from the ministry of Lands, surveys and urban Development dated the 3rd of August 2016 having been brought to the ministry and same having informed the Respondents that they were owners and Landlords of the Land in dispute Exhibit L, they were by implication a necessary party, such that the suit commenced against the Appellants, their tenants could not have been without joining them, for effectual and complete adjudication of all the questions that may arise in the suit.
GREEN V. GREEN (2001) FWLR (pt 76) 795 @814 pars Ca-H was relied upon.
It was contended that a person is a necessary party where the question in controversy cannot be effectually and completely be settled unless he is a party. Adefarasin Vs. Dayekh & Anor (2007) ALL FWLR (pt 348) 911 at 933 pars D-E.
That it is most proper to join a necessary party in order to have a just decision. Counsel submits that the joinder may be made at the instance of any of the existing parties, the third party himself or the Court.
See Adisa VS. Oyinwola (2000) FWLR (pt 8) 1349 and Agbekoni V. Kareem (2008) ALL FWLR (pt 406) 1970.
That the Respondents had been so informed by Exhibit CL10 and the Ground Rent s – Revenue Receipt Exhibits DE and D4A paid by the Appellants and their members to the Delta State Government corroborate the facts that were not challenged by the Respondents during trial; Referred also to Waldem Holdings Ltd & Ors Vs. Akpainenem & Ors (2003) FWLR (pt 177) 884 at 893 again on the need to join a necessary party and says however that the non-joinder of a necessary party as a general Rule does not necessarily defeat a claim; that this is because the failure to join a necessary party is a procedural irregularity, which does not affect the competence or jurisdiction of the Court to determine it.
The cases of Flash Fixed odds Ltd Vs. Akatugba (2001) FWLR (pt 76) 709 @ 726-727 par G-C and Agbekoni Vs. Kareem (2008) ALL FWLR (pt 406) 1970 @ 1985, paras E-H were relied upon.
That in the instant case the irregularity has led to unfairness and injustice to both the Appellants and their Landlords.
That the award has affected the legal rights and interest of the Appellants’ Landlord, i.e the Ministry of lands surveys and Urban Development vis-à-vis Exhibit CL10.
That the order one of the reliefs granted was against the legal rights/interest of the Appellants’ land lord while orders 2, 3, and 4 were unjust to the Appellants and their members as they were lawfully put in possession of the land in dispute.
In Exhibit CL1 by the Ministry of Lands, Survey and Urban Development vide the payment of yearly ground rent to the Delta State Government in Exhibit D4 and D4A respectively; refers again to AgbeKoni Vs. Kareem (2008) ALL FWLR (pt 406) 1970 at 1988 par. D-E for the point.
On this Issue, the Appellants’ counsel concluded thus:
“In the final analysis we shall be urging mi Lords to resolve issue one in favour of the Appellants by setting aside the Judgment of the trial Court whose awards orders are adverse to the legal rights/interest of the Appellants’ landlord and had occasioned an injustice to the Appellants who were put in lawful possession of the land in dispute by the ministry of lands, surveys and urban development through Exhibits D4 and D4A as a result of their non joinder by the Respondents vide Exhibit CL10.”
RESPONDENTS SUBMISSION
The Respondents submits that the non-joinder of the Delta State Ministry of Lands Surveys and Urban development cannot and does not necessarily defeat a claim let alone the Respondents claim. Counsel is assertive that “this is the law” and that “it accords with the letter and spirit of Order 13 Rule 8 (1) of the High Court of Delta State (Civil Procedure) Rules, 2009, Section 53 of the High Court Law, Cap. 65 volume 3 Laws of the Defunct Bendel State of Nigeria 1976 – as no cause or matter shall be defeated by reason of non-joinder of parties and the Court may in every cause or matter deal with the matter in controversy as far as regards the rights and interest of the parties actually before it.
Flash Fixed Odds Ltd V. Akatugba (2001) FWLR (pt 706) 709 at 726, par. G-H and 727 pars A-C.
The learned counsel pointed out that the Appellants’ learned counsel had conceded this position of the law, relying also on Flash Fixed Odds Ltd Vs. Akatugba (supra); and that the issue should therefore, be resolved in favour of the Respondents.
The Respondent’s counsel pointed out that even then, the Respondents had pleaded copiously and had given credible, uncontroverted, uncontradicted and unchallenged evidence that the Appellants’ alleged landlord is not the owner of the land in dispute and are well aware that the land in dispute was not acquired by the government and that this explained that failure, refusal/neglect to apply to be joined and/or react to the respondent’s statement of claim having been shown or informed of same by the Appellants.
The learned counsel, having referred to the case of Adisa Vs. Oyinwola (2000) FWLR (pt 8) 1349 and AgbeKoni Vs. Kareem cited by the Appellants’ counsel submitted that the Respondent had no exclusive burden to join any person as a Defendant, more so that it is the law that a claimant is entitled to pursue his remedy against only the Defendant he conceives he has a cause of action against and that a plaintiff is not to be compelled to proceed against persons it has no desire or intention to sue ….” Per Peter Odili, JSC in Sifax Nigeria Ltd Vs. MIGFO Nigeria Ltd & Anor (2019) vol. 288 LRCN 163 @ 244 paras K-U. Green V. Green (2001) FWLR (pt 76) 795 at 813 par C.
It was also submitted that the mere fact that a person is interested in a case and may be affected by the outcome of same does not necessarily make him a necessary party; at best he may be a desirable party.
That a necessary party is not only an interested person in the subject matter of the proceedings but one in which in his absence or non-joinder the question to be settled between the existing parties cannot be effectively and effectually determined.
Indeed, it was argued that it is the person who asserts that needs to join or apply for the joinder and show that he is not only a necessary party but a desirable party – Bello Vs. INEC & Ors (2010) Vol. 184 LRCN 54 at 116 pars K-U, 2 – JJ 116 pars A-K, JJ and 117 paras A-P.
Counsel submitted further, that the provisions of Order 22 Rules 2 and 4 of the High Court of Delta State (Civil Procedure) Rules, 2009 makes complaints on non-joinder of parties or improper constitution of suits and allied matters legal Defences and which must be specifically pleaded in the statement of Defence if the appellant wishes to rely on them and, therefore, cannot be raised in counsel’s Brief of Argument having not been pleaded in the statement of Defence at the trial Court.
That there was no indication in the entire gamut of the Appellants Brief of Argument to any question to be settled in this action between the existing parties that cannot be properly or effectively settled unless the third party is joined.
That the Appellant cannot complain of unfairness at this stage on any complaint of non-joinder, for their neglect failure and/or refusal. That the Appellants not being agents of the Delta State Ministry of Lands and Surveys and Urban development cannot complain for the third party who knowingly chose to stand by and allow others to fight her battle in which her interest is involved because she is equally bound by the result in same way as if she were a party. Counsel used the metamorphor thus; “the third party is not complaining and the Appellants cannot take paracetamol for the headache of another.”
That the Appellants who had admitted that they are not the owners of the land are fighting the battle of a by-stander. The third party is not contesting the Judgment of the Court and its non-challant attitude to the litigation all through the trial upto the appeal shows clearly what the findings of the Court was – that it was not its land.
That it had clearly been demonstrated at the trial that Exhibit D2 was not the site plan relating to the land Exhibit CL2, and which land was not acquired by the mid-western state Government.
That the pleadings of the Respondents and denial of the acquisition and denial of any linkage of Exhibit D2 with Exhibit C2 was sufficient for the 3rd party to have applied to be joined or by the Appellants.
That the Amended Respondents paragraphs 27, 4, 5, 16, 17, 18 and 19 of their statement of claim was admitted by the refusal, failure or neglect of the Appellants to apply to join the third party. That amounted to the failure to prove their assertion being the assertee. See Section 133 of the Evidence Act, 2011.
Learned counsel ended on this issue thus: “from the foregoing, the decision of the trial Court on this issue of joinder or non-joinder which we humbly recommend to our Lords and the defeatist/self-defeating argument of the Appellants at par 5.6 on pages 6 and 5.8 on page 7 of the Appellants’ Brief of Argument, it is convenient to respectfully urge on this Honourable Court to resolve Respondent’s Issue one (1) in favour of the Respondent. We beg to urgue.”
The Appellants Reply Brief of Argument related to the preliminary objection filed which had already been struck out upon its abandonment. Therefore, I have only the arguments as summarized supra to consider.
RESOLUTION
The Issue one is a straight forward one and has been so aptly answered by both parties’ learned counsel in unison to the effect that, it is desirable to join persons as Defendant to a suit if the Determination of the complaint cannot be done conclusively, effectually, effectively and justly without him or them being made parties.
Now, what is the primary Rule relating to joinder of parties? Order 13 Rule 3 of the High Court of Delta State Civil Procedure Rules, applicable, provides as follows:
“All persons may be joined as Defendants.
All persons may be joined as Defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative. Judgment may be given against any such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.
5. Defendant need not be interested in all the reliefs sought
1. It shall not be necessary that every defendant shall be interested in all the reliefs prayed for, or as to every cause of action included in any proceeding against him.
2. A Judge, upon considering the defence filed by any defendant may on application by that Defendant, make such order as may appear just to prevent him from being embarrassed or put expense by being required to attend any proceedings in which he may have no interest.
The Respondents, herein had not alleged any claim to relief from any third party other than the Appellants herein; even then in their personal capacities and for the infraction of rights and claimed reliefs accordingly. Such Respondents, as plaintiffs were so entitled to sue only those they had claims against and no other, as they cannot be compelled to sue persons or authorities they did not intend to sue, having no claims for any infraction of their rights. See Sifax Nigeria Ltd Vs. Migfo (Nig) Ltd & Anor (2019) vol. 288 LRCN 163 at 240 – ICU and Green V. Green (2001) FWLR (pt 76) 795 @ 813 aptly referred to by both learned counsel for the parties.
The Respondents, having denied any legal interest and right in the so called third party as sought to be thumped up by the Appellants, it became the burden of the Appellant to so prove the necessity of their claim by their joinder of the said third party. If they had applied under Order 13 Rule 2, of the Delta State HCC PR they would have been jointed.
They did not apply to have it joined; as expected by Section 133 of the Evidence Act 2011, he that asserts the positive has the burden of proof. See Bello Vs. INEC & Ors (2010) vol. 184 LRCN 54 at 116. What is more, by Order 13 Rules 8 (1) of the High Court (Civil Procedure) Rules Delta State, the non-joinder of a party shall not defeat a cause or matter. See also Section 53 of the High Court Law, Mid-West State, Nigeria Applicable to Delta State. What is more, by the provisions of Order 22 Rules 2 and 4 of the said High Court (Civil Procedure Rules, (supra) the non-joinder of a party may be raised as a special Defence or point of law and shall be disposed of the Judge who tries the cause at or after the trial. In this case; it was not pleaded by the Appellants at the trial that there was no joinder of a necessary party and/or that the action was improperly constituted, as it were, in respect of parties.
Raising same as belatedly done now on appeal and vide a Brief of Argument filed by a counsel was not only irregular but incompetent as the trial Judge nay the other party was not given the opportunity of reacting/responding to him and for the Court to arrive at a decision. It was not just an ambush, but constituted a waiver. To do otherwise now is an ambush and a violation of fair hearing. It will not be a fair trial, as the Rules provides that a party must not be interested in all the reliefs or cause of action, before he can apply to join.
The appellants had in their evidence and pleadings stated clearly that they were not the owners of the land but were concerned about injustice to the ministry of lands, surveys and urban development who they said were their landlords and will be affected by the orders made against it without having been joined; crying more than the bereaved?
That may well be; but the Appellants have no locus standi, to raise any complaint on the ground of any effect of the remedies granted, even if it affected the ministry of lands, surveys and urban development, Delta State, their alleged Landlord as they cannot cry more than the bereaved. The Respondents’ counsel is right to have said that the Appellant’s are taking paracetamol for the headache of their so-called Landlords, who are not parties to the suit, let alone the appeal. No specific order mandating them to do anything or refrain had been issued and even if done it is they who have the locus to complain and to take all necessary legal actions as relating the orders as may relate to them.
It is not the business of the Appellants who would appear to be enlisting the might of the Government Agency that, in any case, must take Revenues by way of levies, rates, taxes etc from commercial activities such as Timber Dealers and sawyers, in which Association the Appellants are though not sued in representative capacity for the Association or any community whatsoever. Ground rents are paid by owners and/or occupiers by Grant. The Ground rents were to be paid by the owners of the land which the Appellants said they were not; they could not have been paying anything lawfully called Ground rent on behalf of the ministry of lands, & surveys and urban development as a landlord cannot be paying Ground Rent to itself nor through its “tenants”.
There was no obligation on the Respondents, whatsoever, nor the Court to order the joinder of a third party whom the Appellants had admitted that they were their Landlords, and in respect of which ownership of the land was not prima facie established by the said Landlord, as a result of their non-joinder. The Exhibits, being revenue receipts have as the payees…
Thereof “Ogwhorho Timber Dealers and sawyers Association, Udu Bridge Ovwian”, they are not receipts issued to the plaintiffs/Appellants as tenants; they were not sued in a representative capacity for the Association of Timber Dealers and sawyers Association either. The receipts, therefore, have no evidential value and was even irrelevant and inadmissible. They ought to have been discountenanced as creating no evidence of any tenancy of the Appellants with any person or body let alone, for such a person to be sought to be joined.
Issue One is resolved in favour of the Respondents and against the Appellants.
ISSUE TWO
On the issue, it was argued that the decision of the learned trial Judge was perverse as it was against the weight of evidence. The Appellants’ counsel referred to Uka Vs. Irolo (2002) FWLR (pt 127) 1167 for the point Registered Trustees, Holy Apostolic Church V. Ayeni (2002) FWLR (pt 115) and Oyedeji V. Akinyele (2001) (pt 77) 970 also relied upon. In Oyedeji Vs. Akinyele (supra), this Court, per Adamu JCA later PCA of blessed memory had this to say on the meaning a perverse decision.
“A perverse decision has been recently interpreted by the Supreme Court in The State Vs. Ajie to mean: “A decision is said to be perverse
(a) when it runs counter to the evidence; or
(b) where it has been shown that the trial Court took into account matters which it ought not to have taken into account or
(c) when it occasioned a miscarriage of justice…”
It was also argued that where a Judgment is attacked on the ground of being against the weight of evidence or where the findings or non findings of facts is questioned the Court of appeal has the primary role of seeking to know the following:
a) The evidence before the Court
b) Whether it accepted or rejected any evidence upon the correct perception
c) Whether it correctly approached the assessment of the value on it.
d) Whether it used the imaginary scale of justice to weigh the evidence on the other side.
e) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof”.
MISR Nig Ltd Vs Ibrahim (1975) 5 SC 55; EGONU V. EGONU (1975) 11-12 SC 111; AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (pt 70) 325 relied upon; the learned counsel recounted the case of the parties and submitted that the Judgment did not appreciate the Appellant’s case or deliberately shut its eyes to same.
Their counsel argued that they were sued in their personal capacities as individuals and not as representatives or heads or principal members of the Ogwovhor family of Ovwian town; as they had by 1st Respondent in cross-examination been clearly admitted not to be the head or principal members of Ogwhorhor family. (See page 226 of the record). That the trial Judge to now hold that the Appellants failed to prove their traditional history that the land was originally founded by Ogwhorhor and when it found in favour of the Respondent/claimant in the proof of their traditional history.
That the Court shut its eyes to the defence of the Appellants tracing same to a tenancy with the ministry of lands, surveys and urban planning Delta State and rather focused its attention on the traditional history or root of title when they the Appellants were sued in their personal capacities. That the Court shut its eyes to the tenancy raised as their defence. That the Exhibits CL5 and CL6 relied upon by the Court as proof of rights of ownership were both undated and wrongly relied upon; as they were invalid and unenforceable. Amizu Vs. Nzeribe (1989) 4 NWLR (pt 118) 755 @ 770 par A. That they were of no probative value and should not be relied upon or to be acted upon by a party or the Court.
Rock Onoh Property Ltd Vs. Nigeria Telecommunications Plc & Anor (2001) (7 SC) (pt 111) 154 per Uwaifo, JSC.
That the reliance on Exhibit CL5 and CL6 the deeds of Assignment conveyed no title and were therefore of no probative value.
That the reliance on Exhibit CL7A certificate of occupancy of land adjourning the land in dispute i.e Exhibit CL1 that the document of purchase of the land from the Respondents the Owhase community before applying for the certificate of occupancy from the Bendel State Government could not be produced to prove the sale to the 9th Respondent (presumption of condition precedent had not been complied with for a Deed etc).
In any case they had not disputed it as being a forgery. That parties were agreed that the respondents had donated their land at the left hand side of the bridge to the Delta State Government for the Udu Bridge construction and that the said land and their boundary witness’ land were both at the left side of the Bridge.
That for the improper evaluation of the evidence led, this Court should allow the appeal, set aside the judgment of the trial Court and to make any order(s) it can make under its original powers in the circumstances.
The Respondents in response argued to the contrary that the trial Court properly evaluated the evidence led and that there was no perversity of justice caused. That that being the case, this appellate Court does not have a business interfering with its findings on such evidence.
That the Respondents had pleaded their ancestral root of title to one Owhas, the son of Udu as the founder who deforested the land known by the Respondent as part of Ogode Bush, which they claimed was founded and deforested by their own ancestor one Pa Ogwhorhor from time immemorial, but without proof or trace of genealogy in pleadings or evidence or any acts of ownership exercised by him or traceable to the said Oghorhor or any of them in respect of the land in dispute.
That the trial Judge correctly applied the law relating to the proof of civil cases by appraising the evidence on both sides and in finding that the weight of evidence was in favour of the Respondents. Chabasaya Vs. Anwasi (2010) Vol. 184 LRCNI at 7, to the effect that he that asserts has the burden of proof and Section 134 of the Evidence Act, 2011 relied upon.
It was submitted that since both sides had pleaded and relied on traditional title of their progenitors as the founder of the land the Court had to make positive findings clearly as to which of the sides was correct in its assertion. Faleye & Ors Vs. Dada & Ors (2016) Vol. 262 LRCN 38 at 89 par F-K per Sanusi, JSC. Achilihu & Ors Vs. Anyatonwu (2013) Vol. 220 LRCN (pt 2) 215 @ 242 paras EE – JJ & 243, paras A-F.
That the Appellant had failed woefully to show how the trial Court misapplied the facts of the prevailing and applicable law.
That the findings are supported by credible, unchallenged and uncontroverted evidence and that failure to show where the Court was wrong in law and facts the appeal was bound to fail. Omisore & Anor Vs. Aregbesola & Ors (2015) vol. 246 LRCN 44 @ 127 Paras A-F.
That having resolved the origin of the land in dispute as to who founded it and second, area of dispute being whether the land was part of the land acquired by the mid-western state of Nigeria purportedly by Gazzette No. 26 Vol. II Legal Notice No. 22 tendered as Exhibit CL2. That the appraisal of the evidence led did not prove that the said land was acquired by the government and the decision was not perverse. Gbemisola Vs. Bolarinwa & Anor (2014) Vol. 234 LRCN 137 @ 180, pars U-JJ. That the Exhibit D2 was a recent plan made in 1989 and not the one referred to in the Gazette N. 22 of 1974 mid-western state as this was also admitted by DW1 in cross-examination.
That the circle lands office/officers or official of the Delta State ministry of land, surveys and urban planning failed refused and neglected to appear by application of joinder or even as witnesses relating to the exhibits CL2 and D2 even when the circle land officer ESV Efe Allied was listed as a witness and supoened by the Appellants.
That there was nothing in the Exhibit CL2 to show that the land in dispute was acquired by the Government from the Ohuhorhor family of Ovwian or any other family or any other family (original title holder.
That there was nothing to show that Appellants complained to the commissioner of Lands of their claim to ownership in response to Exhibit CL2 nor was there evidence of payment of compensation.
That there was no proof of the temporary licence to use the land granted to Appellants as claimed even after their said meeting in 2010. That there was no payment for any licence until after the suit was instituted that receipts of 2016 was obtained. The receipts Exhibits D4 and D4A were obtained for the purpose of this suit after its institution on 1st Nov. 2016 and that issue 2 be resolved against the Appellant.
RESOLUTION OF ISSUE TWO
This issue is also straight forward.
The 1st Appellant and DW1 having admitted in evidence that the Appellants were not the owners of the land in dispute, all that means is that the Appellants had no claim by traditional history. The prolific averments and evidence on the history of the land, was of no legal consequence in respect of the claim at the trial Court as the Defence asserted merely is one of alleged lawful occupation or license from a third party.
The law simply is that there is no legal defence predicated upon justertii, a right or defence based on a third party right.It is not a defence to an action in trespass or declaration of title.
This explains why the Respondents, understandably merely issued quit Notices for Recovery of possession and not the traditional or statutory Notices of 30 days 6 months or 1 year Notice due for tenants, who the Appellants were not to them.
The Appellants were in law, squatters or statutory tenants in the eyes of the law and may be ejected by any person who shows a better title. The Respondents had so shown by their evidence of traditional history.
They also showed exercise of acts ownership and of possession by the conveyance or leasing to a third party and never claimed whether the leases were instruments of title or not. All they assert is that they were proof of their acts of ownership over the land. From the facts, the trial Court was not wrong to have found on the evidence led from both sides that the Respondent had, on the preponderance of evidence, proved their claims for the grant of a statutory right of occupancy, damages for trespass and injunctive reliefs against the Appellants and every other person who had not shown a better title to theirs, which the Appellants Government receipt Exhibits D4 and D4A were not proof of title let alone a superior one to the Respondents’ proof of title in one of the ways recognized for the proof of title. See Idundun Vs. Daniel Okumagba (supra) i.e evidence of title by traditional history and acts of possession of adjacent lands. There was a yawning gap in the traditional history of ownership of the land from Pa Ogwhorhor as alleged down to the Appellants as the histology was not narrated as to names, usages and occupation of the land nor the steps taken before the alleged acquisition by the Government.
As it were, the Appellants’ case was fluid and civil matters being decided on the preponderance of evidence the minimal evidence required on the part of the claimants, now respondents preponderated and tilted the scale in favour of the Respondents who were plaintiffs at the trial Court; as the Appellants was unable to show how the said land had its title to the Respondent divested.
In Oyovbiare Vs. Omamurhomu (1999) 71 LRCN 2650 at 2667, the Supreme Court, per Ogwuebu, JSC held thus:
“…..it is also an established rule that once it is proved that the original ownership of property is in a party the burden of proving that the party had been divested of the ownership rest on the other party.
SeeIsiba & Ors Vs. Hanson & Ors (1967) 1 ALL NLR 8 at 10…”
The trial judge was correct when he held that the Appellant had not proved that the Respondents had been divested of their title in the land in dispute.
The observations made in the exhibits and the inferences drawn there from in doubting and faulting the genuineness and nexus of the site plan to the Acquisition Notice in Gazette No of 1974 and the various presumptions of evidence against the Appellants’ claims are apposite. The appellate Courts are slow in interfering and disturbing findings of facts made by a trial Court which is supported by evidence, unless it is satisfied that such findings is unsound. See Oyovbiare (supra) as held in the Oyovbiare case (supra) that is not the case; in that case; the Court was held to be in error to have ordered a retrial.
In this case, even if the plaintiffs/appellants had put up a stronger case on the preponderance, and the Defendant even if they had a seemingly good case for the disinterested third party, a retrial cannot be ordered as from inception uptil now, third party has applied even if belatedly to join to prove a superior title to the Respondents.
There was, at the trial, no situation warranting an order of Dismissal of their suit or non-suit either.
Where there is a right there is a remedy – Ubi jus ibi remedium.
Indeed as Mohammed, JSC as he then was, later CJN stated at page 2668-2669 par C of His contributory Judgment in Oyovbiare (supra),
“where it is clear from the evidence that the learned trial judge was quite justified in coming to the conclusion which he did that the plaintiff had failed to establish the claim he presented before the Court and there was no irregularity on the record compelling a remission of the case for retrial it will be an error of the Court of Appeal to order for retrial. SeeChief Abah Ogboda Vs. Daniel Adulugba (1971) NSCC 66 at 70”.
In this matter on appeal, the trial Court had found that Respondents had proved their claims, but Appellants could not prove any defence but however admitted not being the owners of the disputed property and the third party their “Licensor” at whose pleasure they were staying and for no definite or determinate terms or time, and who was said by one of their witnesses not to have done anything, aside issuing the letter warning the Respondents and asking them to desist from harassing the Appellants as the land had been acquired. The probative value of those documents of acquisition can only be tested upon the examination of the makers on their owners claim and with them or their representatives as party and witness(s).
There was no injustice caused to the Appellants nor to their licensor in the circumstances of the facts and evidence led. To order a retrial will rather be oppressive to the respondents and unjust to them. Even if there was any slip or error of evaluation it has not affected the justice of this case on appeal as no miscarriage of justice has been caused. SeeBAYOL VS. AHEMBA (1999) 71 LRCN 2347.
The 3rd party cannot stand by as they did (assuming they had a title through which the Appellants could rest a defence, they cannot stand by and allow their battle to be fought by somebody else in the same interest, in this case, the Appellants. They may not be allowed to reopen the case as they will be bound by the result. See Marbel Vs. Akwei (14 WACA) 143, 145 referred to in Bello Vs. Fayose (1999) (1971) LRCN 2419 at 2433 paras C-D.
I am not however, unmindful that every man has the right to litigate his right and to be the guardian of his own right, and it is the commonest basis of justice that a man should not be robbed of that right by the fact that somebody else was insisting upon the same right for his own purpose, has entered upon a litigation which has turned out unfavourably to him.
The trial judge did not determine the case strictly and solely on the basis of the third party’s standing by or absence, but on the basis that the Defendants/Appellants had failed to establish a defence to the action.
On the whole, notwithstanding the pronouncement on the inertia and presumption of and inferences of lack of title and proof in the Appellants’ alleged licensor, the appeal still has no merit.
The point must be made in conclusion, that from their pleadings, the Appellants’ learned counsel ought to have joined and called the third party if their defence and claim of being their lawful tenants and not squatters or persons relying on a pedestal that was strong could be taken seriously.
Why the Exhibits D4 and D4A were issued to the timber and Sawyers Association, which the Appellants were only members and Executives and not to them in their personal capacities as sued, they cannot rely on same for any defence, they not defending in a representative capacity. They did not join the timber marketers and Sawers Association, Ovwian as a party to be able to rely and found any defence on those exhibits.
They were documents wrongly admitted in evidence and have no probative value either.
What is more there are receipts on the face of it showing payment for Ground rent on C of O (ministry of land and survey, when infact licensees paid no ground rent and had no C of O for which they could pay ground rent. Sadly the receipts do not bear any reference to an identifiable certificate of occupancy. It is instructive that the payment covered by the receipt was made months after the letter to the Respondents counsel was written.
An afterthought and indicatives of no occupation even if as licensees before the halfhearted intervention of the third party.
I cannot end without saying that, counsel, as a minister in the temple of justice, owes a duty to advise his client aright; where there is no chances of success, he should throw in the towel than to exhibit confidence or half hearted pursuit when the chances of success is slim. See Dr. Magit Vs. University of Agric. Makurdi (2006) 133 LRCN 46 at 91 K- 92 A.
The consideration of his fees should be of no moment as he is a minister in the temple of justice.
This is a case where proper and good advise would have assisted the Appellants in the prosecution of same with the involvement of the state departments relevant and mentioned by them.
That would have probably sorted out the problem and the loss of time, avoidance of acrimony and costs would have been minimized.
I also, think that government officials will do well to be more honest, proactive and bold even in their impartiality and neutrality; for they cannot however, sit on the fence positively or take halfhearted measures. They owe a public duty to all sides and the law to ensure justice. That is the primary responsibility of government officials and the essence of the oaths of office, allegiance and fidelity to the laws, regulations and precepts of governance and fairness. The custodians of public safety and morality, that they are; they must effectively and clearly be seen to be, in action/ deed, where necessary as in the litigation in the matter leading to the instant appeal.
In conclusion and pertinently, too, the trial Court on the land is dispute found that it has not by the Exhibits CL2 and D2 been shown to be the same and Appellants by their admission that they are not the owners thereof; they had shown no justifications to warrant interfering with the findings of facts and the decision of the trial Court, as the Judgment of a Court in that circumstances shall subsist as valid even if it is wrong or not certain whether it is right in law; unless and until it is set aside it binds the parties therein.
I have not been shown or referred to any legally justifiable reasons to warrant interfering with the judgment of the trial Court and the findings of the trial Court subsists.
See Odimegwa Vs Ibezim (2019) Vol. 291 LRCN 82 AT 101. Accordingly, the two Issues are resolved in favour of the Respondents and against the Appellants and the decision of the trial Court is affirmed and the appeal is dismissed.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother. MOHAMMED A. DANJUMA, JCA; in the instant appeal.
I am in complete agreement with his lordship’s reasoning and conclusion in the said judgment.
Accordingly, I too find the appeal to be unmeritorious and it therefore fails. The appeal is hereby dismissed. This leaves the judgment of the lower Court intact.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead Judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA, and I am entirely in agreement with him on the reasoning and conclusion reached.
I join my learned brother in dismissing the appeal and the decision of the trial Court is hereby affirmed.
Appearances:
Oghenejabor Ikimi, Esq. For Appellant(s)
E. O. Agabi, Esq. For Respondent(s)
