OJO v. ADEGBONMIRE (2020)

OJO v. ADEGBONMIRE

(2020)LCN/15406(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Thursday, October 08, 2020

CA/AK/20/2016

RATIO

CROSS-EXAMINATION: WHETHER FOR EVIDENCE ELICITED IN CROSS-EXAMINATION TO BE ADMISSIBLE IN SUPPORT OF THE CASE OF THE OPPOSING SIDE, IT MUST BE ON FACTS PLEADED BY THAT PARTY

It is instructive that the appellant conceded that for evidence elicited in cross examination to be admissible in support of the case of the opposing side, it must be on facts pleaded by that party. The appellant never alluded to his pleading upon which the evidence elicited in cross examination which he now seeks to use can be supported. It is the correct position of the law that cross examination may also enhance the case of the party cross examining by supporting his position. The Supreme Court in the case of MTN V CORPORATE COMMUNICTION INVESTMENT LTD (2019) LPELR-47042 (SC) which followed its earlier decision in AKOMOLAFE V GUARDIAN PRESS LTD (2010) 3 NWLR 1181, 338, established this position. But it has also been established by numerous authorities that evidence so elicited in cross examination must be on facts pleaded by the party concerned. See OMISORE & ANOR V AREGBESOLA & ORS (2015) 15 NWLR PT 1482, 205; ANDREW & ANOR V INEC & ORS (2017) LPELR 48518 (SC); MTN V CORPORATE COMMUNICATIONS INVESTIMENT LTD (SUPRA); ADEOSUN V GOVERNOR, EKITI STATE (2012) 4 NWLR, PT 1289, 581 AT 602 and PUNCH NIG LTD V EYITENE (2001) 17 NWLR, PT 741, 228. PER PATRICIA AJUMA MAHMOUD, J.C.A.

POSITION OF THE LAW AS TO WHETHER AN UNNAMED PARTY BEING REPRESENTED IN AN ACTION MUST BE A JURISTIC PERSON

The settled position of the law as to whether an unnamed party being represented in an action must be a juristic person is that it is the person invoking the jurisdiction of the Court, that is the named party, who is dominus litis, that must be a juristic person and not the party being represented. See ETALUKU V NBC PLC (2005) AFWLR, PT 261, 353 AT 381, IFEKWE & ORS V MADU (2000) 14 NWLR, PT 688, 459 and ABUBAKAR V USMAN (2018) LPELR- 44089 (CA). PER PATRICIA AJUMA MAHMOUD, J.C.A.

Before Our Lordships:

Oyebisi Folayemi Omoleye Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

PRINCE BAYODE OJO (OLU AREONA) For Himself And On Behalf Of Members Of Okunyo Alaule Family Of Awule Road, Akure. APPELANT(S)

And

OJO ADEGBONMIRE (Alias The King Alawule) RESPONDENT(S)

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice A. O. Adebusoye of the Ondo State High Court sitting at Akure and delivered on the 17th December, 2014.

The appellant, claimant in the Court below, by a Writ of Summons dated 20th March, 2013 and filed on the 23rd April, 2013, claimed against the Defendant/Respondent the following four reliefs:
a. A declaration that the claimant and all members of Okunto Awule are the persons entitled to the customary right of occupancy in respect of the land known and called OKUNTO ALAWULE LAYOUT AT AWULE ROAD, AKURE covered by perimeter survey land No OD/382/2008/218 measuring 62:386HA with approved layout No AK/AURPO/L/815.
b. A sum of N5Million Naira only against the Defendant being general damage for the trespass committed on the said land at Okunto Alawule Layout Awule.
c. AN ORDER of perpetual injunction restraining the Defendant, his privies, agents or any person receiving his instructions to the land from trespassing or having anything to do with the land situate and lying at Okunto Awule Layout, Awule Road covered by perimeter survey plan No OD/382/2008/218 measuring 62:386HA with approved layout No AK/AURPO/L/819.

The appellant as claimant instituted the suit for himself and on behalf of the members of the Okunto Alawule family of Awule Road, Akure. In proof of their case, the claimant called four witnesses and tendered four (4) documents which were admitted in evidence and marked as Exhibits B-E.

The defendant/respondent in his defence counter claimed against the claimant in the following five reliefs:
(a) A DECLARATION that all the parcel of land measuring 62:386HA on Awule Community Layout with Approval Layout No AK/AURPO/L/815 dated 9th January, 2009 is the communal land of Awule Community, Akure made up of Alaule Famubo and Odopetu Erumuale Families.
(b) A DECLARATION that the members of Alaule Famubo and Odopetu Erumuale Families of Awule Village, Akure are the persons entitled to a Customary Right of Occupancy over all the parcel of land measuring 62:386HA on Awule Community Layout with Approval layout No. AK/AURPO/L/815 dated 9th January, 2009.
(c) AN ORDER invalidating and/or setting aside all forms of alienation of portions of Awule Community Land by the claimant (Defendant in this courter-claim) by way of sale, lease, mortgage or any other transaction whatsoever having been done without the requisite concurrence of a majority of the principal members of Alaule Famubo and Odopetu Erumuale Families making up Awule Community, Akure, along with the consent and authority of Alaule (the traditional Head of Awule Community).
(d) AN ORDER OF PERTUAL INJECTION restraining the claimant (Defendant in this counter-claim) and members of Okunto Alaule stock of Alaule Famubo Family of Awule from claiming all that parcel of land Measuring 62:386HA on Awule Community Layout, Akure with Approval layout No. AK/AURPO/L/815 dated 9th January, 2009 as their land and from dealing with the said land in a way adverse to the communal ownership of Awule Communal Land by the members of Alaule Famubo and Odopetu Erumuale Families of Awule Village, Akure.
(e) COST of this action to be assessed.

At the hearing and in proof of his counter claim, the defendant called six witnesses and tendered nineteen (19) documents. These were admitted in evidence and marked as Exhibits A and F-Z.
At the close of evidence, parties filed, exchanged and adopted written addresses. In a considered judgment, his Lordship dismissed the claim of the claimant/appellant and entered judgment for the defendant/respondent in his counter claim.

Dissatisfied with the judgment, the Appellant by a Notice of Appeal dated and filed on the 18th December, 2014 appealed on a sole ground. By a motion dated and filed on 14th January, 2019, moved and granted on the 15th May, 2019, the appellant sought and obtained the leave of Court to amend his notice of appeal. The amended Notice of Appeal filed on 14th January, 2019 was deemed as properly filed on the 15th May, 2019. It contains three grounds of appeal as follows:
GROUND ONE
His respected Lordship at the lower Court erred in Law when he failed and refused to consider or determine the 2nd issue raised by the Appellant concerning a party not before him.
PARTICULARS
The learned judge enters judgment for a party not before him.
The appellant raised the issue in his written address which his Lordship did not determine.
The lower Court lacks jurisdiction to enter judgment for a party not before his Lordship<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Further ground will be raised when a copy of the judgment is made available to the appellant.
GROUND TWO
The respectable learned Justice at the lower Court erred in Law when he neglected the solemn declaration of the Defendant/Respondent that the Okunto Family is having its own portion exclusively and still gave Judgment for the community.
PARTICULARS
1. During Cross-Examination, the defendant admitted that the appellant family is having its own portion on the land which they have been alienating.
2. The lower Court failed to review or decide on this admission and entered judgment in favour of Awule Community.
GROUND THREE
The lower Court erred in law when it entered judgment in favour of Alaule Famubo and Odopetu families.
PARTICULARS
The Respondent admitted that the appellant family is having their own receipt, issued out of those who purchased land from them.
The Respondent equally admitted that there is Layout made by the appellant family, marked as Exhibit B1-B2.
Admitting Exhibits B1-B2, the land cannot be said it belongs to Awule community.
All the reliefs granted by the lower Court were inconsistent with the evidence of the defendant.
Whereof the appellant sought an order of this Court allowing the appeal, setting aside the judgement of the lower and entering judgment in his favour.

Parties filed and exchanged their respective briefs of argument in accordance with the Rules of Court.

The appellant’s brief of argument settled by Mr. Morakinyo Ogele was filed on the 21st January, 2019 and deemed on 15th May, 2019 wherein three issues were distilled for determination, to wit:
1. WHETHER THE RESPECTED AND RESPECTABLE LEARNED JUDGE OF THE LOWER COURT CAN GIVE JUDGMENT IN FAVOUR OF A PARTY NOT JOINED IN A SUIT. (GROUND 1)
2. WHETHER THE LOWER COURT WAS RIGHT TO ENTER JUDGMENT IN FAVOUR OF AWULE COMMUNITY CONSIDERING THE SOLEMN DECLARATION OF ADMISSION BY THE RESPONDENT DURING CROSS-EXAMINATION ADMITTING THAT THE APPELLANT FAMILY IS HAVING THEIR OWN PORTION OF LAND WITHIN THE COMMUNITY (AWULE COMMUNITY) (GROUND 2).
3. WHETHER THE LOWER COURT CAN GIVE JUDGMENT IN FAVOUR OF ALAULE AND ODOPETU FAMILIES THAT WERE NOT PARTIES TO THIS CASE. (GROUND 3).

The Respondent’s brief of Argument settled by MR. Kunle Adedara was filed on 13th June, 2019. In it, counsel raised a preliminary objection to the competence of the original Notice of Appeal and the non-compliance of the Appellant’s brief of Argument with the Rules of Court, 2016.

Counsel adopted the three issues formulated by the appellant as the issues for determination in this appeal should the Court dismiss his Preliminary Objection.

The appellant upon receipt of the Respondent’s brief of Argument filed an Appellant’s reply brief on the 25th June, 2019.

At the hearing of this appeal, MR. S. O. Abitogun of counsel for the respondent, on his part, first argued the Preliminary Objection and urged the Court to strike out the appeal for being incompetent. MR M. P. Ogele, of counsel for the appellant first responded to the Preliminary Objection and urged the Court to dismiss it. Counsel thereafter adopted the Brief of Argument as well as the Reply Brief as his oral arguments in support of the appeal, urged us to allow the appeal, set aside the judgment of the lower Court, dismiss the counter claim of the respondent and enter judgment in favour of the appellant per their claim in the trial Court.

Mr. S. O. Abitogun of counsel for the respondent, in responding to the appeal adopted, the brief of argument as his oral argument in opposition to the appeal and urged us to dismiss this appeal and affirm the judgment of the lower Court.

It is incumbent to first deal with the Preliminary Objection. I have considered the submissions of both counsel to the Preliminary Objection. One of the objections is that the brief was incompetent because the appellant did not pay the default fee of N65,000 for the sixty-five days that the appellant was in default of filing their brief of argument. This objection finds a ready answer in the brief of the appellant dated 17th January, 2019 and filed on the 21st January, 2019. On the face of this brief is evidence that a penalty fee of N65, 000 was paid by the appellant on what appears to be 21st of June, 2019 vide receipt No 11144843. This payment may have been made after the respondent filed and raised this issue in their brief filed on 13th June, 2019. This may be why they are unaware that the appellant has regularized his position in respect of the penalty fees. Be that as it may, having made the payment, I hold that this objection has been overtaken by event. It becomes otiose and it is hereby discountenanced.

The other point of objection raised in the Preliminary Objection is that the sole ground in the original Notice of Appeal is vague and therefore incompetent. For the avoidance of doubt, I reproduce the sole ground of appeal raised together with its particulars:
“GROUND ONE
His respected Lordship at the lower Court erred in Law when he failed and refused to consider or determine the 2nd issue raised by the Appellant concerning a party not before him.
PARTICULARS
The learned judge enters (sic) judgment for a party not before him.
The appellant raised the issue in his written address which his Lordship did not determine.
The lower Court lacks jurisdiction to enter judgment for a party not before his Lordship.”

In defining what constitutes a vague ground of appeal, this Court in the case of BABA V APC & ORS (2019) LPELR – 48159 (CA) relying on the Supreme Court case of CBN V OKOJIE (2002) 8 NWLR, PT. 768, 48 held thus:
“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard FOR ITS BEING UNDERSTOOD OR WHEN WHAT IS STATED IS SO UNCERTAIN THAT IT IS NOT SUSCEPTIBLE OF BEING UNDERSTOOD. IT MAY ALSO BE CONSIDERED VAGUE WHEN THE COMPLAINT IS NOT DEFINED IN RELATION TO THE SUBJECT OR IT IS NOT PARTICULARIZED OR THE PARTICULARS ARE CLEARLY IRRELEVANT.” (Emphasis provided)
See also OLORUNTOBA-OJU & ORS V ABDUL-RAHEEM & ORS (2009) 13 NWLR, PT 1157, 83; ATUYEYE V ASHAMU (1987) 1 NWLR, PT 49, 267 and MV SEALION (EX ANTIBES) & ANOR V ASSURANCE FORENINGEN SKULD (GJENSIDIG) (2019) LPLER-47399 (SC).
I have gone through the sole ground of appeal over and over again. I agree that it is very inelegant in its drafting but even a single reading reveals the ground upon which the appellant attacks the decision of the trial Court. This is that the court gave judgment in favour of a party not before her. I therefore do not agree with the learned counsel to the Respondent that this sole ground of appeal is so vague and general in terms as to be declared incompetent along the line of AKINWALE V BANK OF THE NORTH (2001) 4 NWLR, PT. 704, 448. The sole ground of appeal in the instant case clearly alleges a misdirection of law on the part of the trial Court, the particulars of which are given in the particulars of the ground. The essence of the complaint in the sole ground of appeal as I understand it is that the trial Court lacks jurisdiction to make an order in respect of a party not joined in the suit and this is the settled position of the law. The issue of whether the judgment of Court is given against a party not before the Court is one which can arise from the case and being an issue of jurisdiction, it can be raised for the first time on appeal: MAKU & ANOR V SULE & ORS (2019) LPELR – 48272 (CA); UBWA V BASHI (2008) 4 NWLR, PT 1077, 303 and KOTOYE V SARAKI (1993) 5 NWLR, PT 296, 710. The decision relied on in the case of OKPALA V OKPU by the respondent is therefore clearly inapplicable. Inelegance cannot be equated with vagueness in the circumstances. This point of objection also fails and it is accordingly discountenanced.

The third and final point in the objection is that the ground of appeal and a particular of the ground are argumentative and therefore incompetent.

I will answer this contention by quoting the holding of the apex Court in DAKOLO V DAKOLO (2011) 16 NWLR, PT 1272, 22 AT 53 PER ADEKEYE JSC:
“Grounds of appeal …. The fact that a ground of appeal is argumentative or repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal notable issue arises for consideration by the Court ….. the principal duty of the Court is to do justice. The grounds of appeal and the particular in the instant appeal might appear to be argumentative and repetitive. They equally raised triable issues which would sustain the appeal.”
This case and a host of others represent the mood of not only the apex Court but also of this court: which is a shift from adherence to technicalities to doing substantial justice. Even for the respondent who raised the Preliminary Objection, they would savour victory more joyously if they were to win this appeal on merit rather than on some technical knockout! At all times therefore both sides as much as possible where the interest of justice permits should have their day in Court. In other words, parties should be allowed to ventilate their grievances without hindrance by any technical restraints so that at the end of the day, both sides would have a sense of satisfaction that the better side has truly worn. In the instant case, the respondent and the Court are left in no doubt as to what the grouse of the appellant was in the original ground of appeal upon which the subsequent grounds of appeal were premised. As the Supreme Court definitively put it in the case of WAZIRI & ANOR V GEIDAM & ORS (2016) 11 NWLR PT 1523, 230, where a ground of appeal is verbous, inelegant, repetitive or even out rightly argumentative, an order of striking out would only mean visiting the error or inelegance of counsel on a hapless litigant. That is never the role of a Court. In the instant case therefore, even though the original ground of appeal is inelegant and may appear argumentative, I find that it raises a triable issue sufficient to sustain the subsequent three grounds of appeal. The Preliminary Objection fails and I hereby dismiss it.

I shall naturally resolve this appeal on the three issues formulated by the Appellant which the respondent has adopted.

On issue (1), counsel to the appellant submitted that the Awule Community in whose favour the judgment of the lower Court was given was never a party in this case. Counsel referred to the cases of BABATUNDE ADENUGA & ORS V J. K. ODUMERU & ORS (2003) 5 SCM, 1 AT 5; ALH MUDASHIRU KOKORO-OWO & ORS V LAGOS STATE GOVERNMENT & ORS (2001) 7 SCM, 177 AT 183 and HENRY AWONIYI & ORS V THE ROSICRUCIAN ORDER AMORC NIGERIA SCN QLR, APRIL-JUNE, 2000, 692 AT 701, PARAS F-G. Counsel further submitted that assuming without conceding that Awule Community was a party that could benefit from this case, it is not a juristic person capable of taking such benefit. Counsel relied on the case of ACB & ANOR V EMOSTRADE LTD (2002) 7 SCM, 7 AT 16. Counsel urged the Court to resolve this issue in favour of the appellant.

On issue (2), counsel submitted that the defendant/respondent admitted in cross examination that there are four families in Awule community with each family having its own portion of land. Counsel contended that they pleaded the fact that Okunto inherited the whole land in dispute as contained in paragraphs 19-22 of their pleadings. That having established this, it puts the issue of the evidence elicited in cross examination to rest. That the admission elicited in cross examination therefore supports the appellant’s case.

On issue (3), counsel submitted that Odopetu family was never mentioned in the list of families that made up the Awule Community and was therefore a complete stranger in the matter. That if Odopetu family was claiming any relief, they ought to have been joined as a necessary party to the suit. That not having been joined as a party, the lower Court lacked the jurisdiction to enter judgment in favour of Odopetu family. Counsel urged the Court to resolve all the three issues in favour of the Appellant, allow the appeal, set aside the judgment of the lower Court and grant all the reliefs sought by the claimant/appellant.

In response to issue (1), MR S. O. Abitogun, of counsel for the respondent submitted that on the authority of SHITTA V LIGALI (1941) 16 NLR, 21, “Awule Community” not being a juristic person cannot validly be joined as a party in the suit at the lower Court. That the only legal option is for the action to be defended in a representative capacity as was done in the circumstances of this case. Counsel also submitted that the respondent/counter claimant at the lower Court prosecuted the suit as the traditional head and representative of Awule Community, a fact proved conclusively in his pleadings and evidence before the Court. Counsel further submitted that on the authorities of SPDC (NIG) LTD V EDAMKUE (2009) AFWLR, PT 489, 408 AT 428, PARAS E-H, RATIO 12 and AGBEKONI V KAREEM (2008) AFWLR, PT 406, 1970 AT 1985, PARAS E-H, RATIO 3, the omission of the Respondent to indicate his representative capacity on his counter claim will not debar a Court from entering judgment in his favour in that capacity. Counsel contended that failure to join a necessary party is a mere procedural irregularity which does not affect the competence of the Court to hear the matter. While conceding that the exception to this general rule is where the irregularity leads to unfairness or injustice to the other party, counsel submitted that in the instant case the appellant is not in any way unjustly affected by the decision of the trial Court. Counsel submitted that from the evidence before the trial Court, especially Exhibits F1- F2, N, L, X1– X3 and Z, there is no dispute that the land in question is communal land. Counsel further submitted that the appellant is misconceived in their submissions on the correlation in the reliefs sought by the respondent in his counter claim. That what the appellant claims as a portion of the Awule communal land is actually the entire communal land. That a stock of one of the families that jointly founded Awule Community cannot exclusively be owner of the entire land of the community. Counsel urged the Court to discountenance the appellant’s contention under this issue.

On issue (2) counsel submitted that the so called “solemn declaration or admission” by the respondent under cross-examination cannot conclusively establish the exclusive ownership of any portion of Awule Community land by the appellant and his Okunto Alaule family. Counsel further submitted that Exhibits B1 and B2 wrongly admitted in evidence are contradictory to the appellant’s claim. That while the appellant claims only a portion of Awule community land, the size of the land in Exhibits B1 and B2 is equal and the same with the size of the entire Awule Community land as evident in Exhibit Z. Counsel also submitted that Exhibits F1-F2 admitted in cross-examination of the appellant when he testified as CW4 proves that the land in dispute in this suit is the same with the land in dispute in suit No: AK/01/108 where the appellant and respondent were the plaintiffs and had sued in a representative capacity for Awule Community. That they also executed a ‘Terms of Settlement’ where the land in dispute is the same as the land in dispute in this appeal. Counsel referred to pages 281-283 of the Record of Appeal and Exhibits F1-F2. Counsel contended that the learned trial judge properly evaluated and determined all the evidence before him before arriving at the decisions he took in this matter. Counsel urged this Court to so hold.

On the third and final issue, counsel submitted what appears to have the effect of the Preliminary Objection raised against the original sole ground of appeal. Counsel argued that ground 3 of the grounds of appeal upon which this issue is predicated is incompetent and should be struck out for being argumentative. Arguing on the substantive issue, counsel referred to and adopted his submissions under issue (1).

Counsel submitted that the cases of CHIEF GANI FAWEHINMI V NBA & 4 ORS (2008) AFWLR, PT 447 AT 50 and MICHAEL AGBEKONI V ALHAJI IBRAHIM KAREEM (2008) AFWLR, PT. 408, 1970 AT 1986 are distinguishable from the instant case. Counsel urged the Court to discountenance all the arguments of the appellant on this issue and to dismiss this appeal.

In resolving issue (1), it is important to look at the counterclaim since it is the capacity of the respondent that is being challenged. The counterclaim is contained at pages 34-40 of the record. It is apparent from the averments therein that the defendant/respondent who is the traditional leader of Awule defended this suit and counter claimed in a representative capacity. While it is unnecessary to reproduce the entire counter claim, for purposes of emphasis, I reproduce paragraphs 40 and 42 only as follows:
“40. The Counterclaimant says that portions of the land (sic) dispute are usually allocated to members of Alaule Famubo and Odopetu Erumuale Families for farming and building of residential houses by the Alaule in-Council made up of the Alaule of Awule (as the traditional Head of Awule Community) and Chiefs from the Alaule Famubo and Odopetu Erumuale Families (as the accredited representatives of Awule Community) with no authority to any member (whose issue may succeed to the use of such allocated land) to alienate such land allocation to him/her as the community retains the radical title to such allocated land. The same process applies for the leasing of portions of the disputed land to tenants (or non-members of the said two Families) on Awule land for consideration called ‘Ishakole’ which is usually in form of cash and food crops (such as palm-oil, yam etc) harvested by such tenants and brought before the Alaule-in Council for joint sharing among the members of Alaule Famubo and Odopetu Erumuale Families, the beneficial owners of the land in dispute.
42. The Counter-claimant avers that the Defendant and his cohorts have been alienating several portions of land dispute, without the requisite concurrence of a majority of the principal members of Alaule Famubo and Odopetu Erumuale Families who are the beneficial owners of Awule Community Land now in dispute along with the consent and authority of Alaule (the traditional Head of Awule Community), with impunity using the threat of charms (“juju”) against protesting members of the Community. The Defendant has persistently threatened to chase away all protesting members of the Community from Awule and sell their farms and on Awule land.”
From the reliefs sought from the lower Court, in particular, reliefs (a) – (d), it is clear that this counter claim is made in a representative capacity. In the case of OTAPO V SUNMONU & ORS (1987) 2 NWLR, PT 58, 587, the Supreme Court in deciding whether a party is entitled to judgment in a representative capacity when the pleadings and evidence show a representative capacity held thus:
“This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for and obtained. See Ayeni V Sowemimo (1982) 5 SC 60; Dokubo V Bob Manuel (1967) 1 AN NLR, 113 at 121; Mba Nta & ORS V Ede Nweke Anigbo & ANOR (1972) 5 SC 156 at 174 – 175. Shelle V Chief Asajon (1957) FSC. 216/1962 decided on 7/3/64. It would be otherwise if the case is not made out in a representative capacity. Onwunalu Ndidi and Onwunalu V Osademe (1971) 1 ALL NLR, 14 at 16.”
See also OSENI & ORS V DAWODU & ORS (1994) 4 NWLR, PT. 339, 390; SALISU & ORS V ODUMADE & ANOR (2010) 6 NWLR, PT. 1190, 228, ABUBAKAR V USMAN (2018) LPELR-44089 (CA) and EKEH & ORS V IBEKWE (2018) LPELR-45029 (CA).
It follows from these authorities therefore that where as in the instant case, the evidence depicts that the party prosecuted the claim/counterclaim in a representative capacity as was done in this matter, the trial Court was entitled to enter judgment for and against the parties in that capacity even if on the face of the Writ the Plaintiff had not brought the suit in a representative capacity.
It is perhaps appropriate to close this issue with what IGUH JSC in KYARI V ALKALI (2001) 11 NWLR, PT. 724, 412 had to say on this point:
“It is long settled that once pleadings and the evidence of a party conclusively disclose a representative capacity and it is clear that the case was fought throughout in that capacity, the trial Court can properly and justifiably enter judgment for or against the party concerned in such representative capacity ……”
It is conceded that the defendant/respondent was not sued by the plaintiff/appellant in a representative capacity. It should be noted that when a party is sued, his capacity is determined by the plaintiff who sues him. Be that as it may, even a cursory look at the statement of defence/counter claim shows without an iota of doubt, the capacity in which the respondent defended the action. This is on behalf of the Awule Community. This position is fortified by the fact that the defendant/respondent is the Alaule of Awule Community, i.e. the traditional Head of Awule Community. In “NIGERIAN LAND LAW” by Professor B. O. Nwabueze (Reprint) 1982, 323 the learned author summarized this position thus:
“It has earlier been explained that the Chief is the person to make alienation of communal land and any alienation made without him as a party is void. But, as has also been explained, the land is not owned by the Chief as an individual, but by the Community or Family of WHICH HE IS ONLY THE REPRESENTATIVE.” (Emphasis provided).
This underpins the contention of the respondent that at all times material to this suit, he as the Alaule was only acting as a representative of the people of Awule community.

The appellant raised the ancillary issue that the Awule Community not being a juristic person cannot take benefit from this case or take advantage of the suit. The settled position of the law as to whether an unnamed party being represented in an action must be a juristic person is that it is the person invoking the jurisdiction of the Court, that is the named party, who is dominus litis, that must be a juristic person and not the party being represented. See ETALUKU V NBC PLC (2005) AFWLR, PT 261, 353 AT 381, IFEKWE & ORS V MADU (2000) 14 NWLR, PT 688, 459 and ABUBAKAR V USMAN (2018) LPELR- 44089 (CA). This submission that the Awule Community which the respondent represents is not a juristic person is of no moment and deserves to be ignored. These findings leave me with no option but to resolve this issue against the appellant and in favour of the respondent. I accordingly do so.

On the second issue, I have considered the submissions of both counsel very soberly. Firstly, I find it curious that the appellant did not specifically quote the portion of the evidence of the respondent in cross examination that allegedly amounts to the so called “solemn declaration or admission” of the appellant’s ownership of a portion of the communal land. For the avoidance of doubt, the answer given by the respondent as DW1 under cross examination which is in contention as contained at pages 289-290 is as follows:
“These four families have their different land and on which they planted cocoa. The claimant is from Okunto family side while I am from Atanro family side. But we all belong to the same family of Alaule Famubo. Anybody can go to any portion of the land to farm. Since Alaule land has not been partitioned. When myself and the claimant were selling land, there was no problem between us.
There was a dispute between the claimant and the Odopetu family which led to a Court suit in Court 7. I am not aware of the settlement of the dispute by the Deji of Akure as depicted in Exhibit E. I am not aware of Exhibit E. I never at anytime in 2007 deposed to an affidavit claiming that I belong to Okunto family. One Fagbote and the claimant approached me when they wanted to dispose off their land on Famubo and Odopetu Erumuwale community land. They approached me as the Alaule. The Okunto family can sell portions of their land if they so wish, but they have to approached (sic) me as the Alaule. Exhibit D is the Okunto receipt booklet for land sales. All the sales in Exhibit D are illegal since it did not receive my royal accent. I am seeing Exhibit B1 and B2 here in Court for the 1st time. I can now see that the layout plan for Okunto family land has been approved by the government. The Okunto family does not have a right to do anything on the land in Exhibits B1 and B2.”

I read this piece of evidence several times. I am unable to see how the appellant could have interpreted this as an unequivocal admission of the fact that the appellant’s family had their exclusive portion of land within the Awule community land. If anything, I agree with the respondent’s counsel that the evidence in cross examination establishes these four positions:

“(a) That the four families mentioned in his evidence are stocks of Alaule Famubo family of Awule Community.
(b) That Alaule Famubo and Odopetu Erumuwale jointly owned (sic) the community land now in dispute.
(c) That the land of Alaule, the father of the four families stated in the evidence has not been partitioned. Thus, anybody can go to any portion of the land to farm. That is even within Alaule family, no partitioning has been down (sic) to allow for exclusive ownership of any portion of their Ancestor land.”

Furthermore, I have gone through the four reliefs sought by the claimant/appellant in the lower Court. The first two reliefs which are the substantive reliefs are declaratory in nature. The settled position of the law as stated in the recent decision of this Court in OYEBANJI V SHODARA (2020) LPELR-50093 (CA) is that a declaratory relief cannot properly be granted on the basis of admission, consent or default of the party against whom it is sought. See also OGOLO V OGOLO (2006) AFWLR, PT 313, 1; DUMEZ NIG LTD V NWAKHOBA (2008) 18 NWLR, PT 1119, 361; ANYANRU V MANDILAS LTD (2007) 10 NWLR, PT 1043, 462 and OKONJO V NWAUKONI (2018) LPELR – 44839 (CA). In the instant case, the appellant having sought declaratory reliefs has the onus to establish his case by his pleadings and evidence and on the preponderance of evidence. He is in my view not entitled to rely on any alleged admission by the respondent assuming the said evidence amounts to an admission which I have found not to be the position in this case.

It is perhaps appropriate to point out some of the significant features of communal ownership of land. This will no doubt show whether the assertion of the appellant is plausible. In modern times, outright alienation by way of gift or sale is unquestionably a recognized incident of communal tenure. However, one feature which is not sidelined by the vagaries of modernity is the right of the head of the community to allocate parcels of communal land to members of the community for various occupational rights. Thus a person in occupation of a piece of land which forms part of land communally owned should not always be presumed as the owner: UDEZE & ORS V CHIDEBE & ORS (1990) 1 NWLR, PT 125, 141. The claim of the appellant is that they are the owners of their own portion of the communal land. There is no dispute from both sides that the appellant’s family is one of the four families that make up the Awule Community. To establish that their family has exclusive ownership of the portion of land being claimed, it is incumbent on the appellant to prove that the communal land had been partitioned among the four families. Failure to prove such partition is futile to the appellant’s claim of ownership. In the case of AKINROPO & ORS V YUSUF (2013) LPELR-20214 (CA), it was held that partitioning puts an end to communal ownership of land. The onus is however on the appellant who claimed that the land was no longer that of Awule Community but belongs to his family: UDEZE V CHIDEBE (SUPRA). Indeed in the entire appeal, it is not the contention of the appellant that he proved his claim on the balance of evidence in the lower Court. Rather his appeal appears to be premised on mundane issues of whether the trial Court was right to have given judgment to a party not before her or whether she was right to have entered judgment in favour of Awule Community in the face of the admission. In other words, the appellant is not fighting this case on the merits and strength of his case in the Court below. I find that this issue again ought to and I hereby resolve it against the appellant and in favour of the respondent.

On issue (3), I have looked at the reliefs granted by the trial Court in the counter claim as contained at pages 338-339 of the record. It is not correct as contended by the appellant that by giving judgment in favour of the Awule Community and by naming the branches of the family that own the communal land, amounts to giving judgment to the two families.

I do agree with the respondent that from the evidence before the trial Court, the Awule communal land was jointly owned by Alaule Famubo and Odopetu families of Awule. That the evidence on record shows the following unassailable facts:

“(a) That there exist a community known and called as “Awule Community”
(b) That the two families of Alaule Famubo and Odopetu Erumuale jointly founded the community in about 225 years ago and have since been using the community land jointly as a communal land.
(c) That member of both families only have portions of the community land for farming purpose before disputes arose.
(d) That in suit No: AK/01/08, both the Appellant and Respondent were the plaintiffs who sued on behalf of themselves and the entire Community of Awule, where in a document titled Terms of Settlement was executed by parties. (See Exhibit F1-F2)
(e) That in paragraph (iv) of the said document, the land in dispute in suit No: AK/01/08, which is the same (sic) in dispute in this appeal, according to the Appellant’s evidence under Cross-Examination, was agreed to be Awule Community land and as such, that the land should be laid out into plots in the name of Awule Community.
(f) That pursuant to the Terms Settlement in Exhibit F1-F2, the entire land of Awule Community was land (sic) out into plots and was approved on 9th January, 2009, before the Appellant went and changed the title of the layout to Okunto Alaule Layout in May, 2009.
(g) That the Appellant and Mr. Abidakun Samuel Omoniyi (DW3) are both members of Okunto Alaule Famubo family of Aule.
(h) That Mr. Abidakun Samuel Omoniyi who is also a member of Okunto Alaule stock of Alaule Famubo family of Awule Community and three other principal members of Okunto Alaule stock disagreed with and dissociated themselves from the Appellant, on his self seeking cases against Awule Community, through a letter addressed to the Registrar, High Court of Justice, Ondo State, Akure, dated 13th November, 2012, admitted and marked as Exhibit J in this suit. (We urge your Lordships to consider the said Exhibit J. (sic)
(i) That inspite of the existing credible evidence of Communal ownership of the land in dispute in this appeal, which the learned trial Judge rightly determined and decided, the appellant, even with his failure to establish his claim and defend the Respondent’s Counter-claim, still wants an exclusive ownership of the entire Awule Community (sic) and to the exclusion of 3 other stocks of Alaule Famubo and the entire Odopetu Erumuale family members.
(j) That since evidence has shown that both the Appellant and Respondent are paternal blood brothers, it will be wrong for the appellant to claim that the Respondent (defendant) is a Squatter on the land in dispute, when the Appellant even admitted that the Respondent is the traditional head of the community where the land in dispute is situated. We urge your Lordships to so hold.”

In the light of this, I also resolve issue (3) against the appellant and in favour of the respondent. I hold that the learned trial judge properly evaluated the evidence on record and rightly came to the conclusion that the appellant failed to prove his case on the preponderance of evidence and correctly dismissed same. His Lordship was also right; having found that the Respondent proved his counterclaim properly gave judgment to the respondent on it. I see no justification whatsoever in disturbing the well considered judgment of the trial Court.

Having resolved all the three issues raised by the appellant against him, I hold that this appeal is devoid of merit and it is accordingly dismissed. I affirm the judgment of the lower Court in suit No AK/92/2013 delivered on the 17th December, 2014.
I assess costs at N100,000 in favour of the Respondent.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, P. A. Mahmoud.

I am at one with His Lordship’s line of reasoning and conclusion that the appeal is bereft of merits. I also dismiss the appeal and abide by the consequential orders, including that of costs, made in the said leading judgment.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading the lead judgment of my learned brother, PATRICIA AJUMA MAHMOUD, JCA and agree entirely that the Appeal be dismissed as resolved by my noble brother in the lead judgment.

The three (3) issues of the Appellant as resolved were borne out of the evidence led at the trial Court in favour of the Respondent.

I also affirm the judgment of the Lower Court in Suit No. AK/92/2013 delivered on the 17th December, 2014 by Hon. Justice A. O, Adebusoye of Ondo State High Court sitting at Akure.

I abide by the order as to costs of N100,000,00 in favour of the Respondent.

Appearances:

MR M. O. Ogele For Appellant(s)

MR S. O. Abitogun For Respondent(s)