UNITY BANK PLC v. M.O. AKPEJI
(2018)LCN/11862(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of July, 2018
CA/B/85/2016
RATIO
ACTION: CAUSE OF ACTION
“It is also trite law that in order to ascertain the time when the cause of action accrued for the purpose of the limitation law, the Court only needs to look at the writ of summons and the statement of claim, which of necessity should contain averments of facts as to when the wrong committed by the defendant took place and compare it with the date when the writ of summons was filed. Put in another way the period of limitation is determined by perusing the writ of summons and the statement of claim alleging when the wrong was committed and which gave rise to the cause of action and by comparing that date with the date on which the writ was filed. Where it is found that the date on the writ of summons is beyond the period allowed by the relevant limitation law, the action is said to be statute barred and as such extinguishes a plaintiff’s right to address his grievances in a Court of law. See ELABANJO VS. DAWODU (2006) 6 SCNJ 204; AMUSAN VS. OBIDEYI (2005) 14 NWLR (PT. 945) 322; SULE VS. KABIR (2011) 2 NWLR (PT. 1232) 504. FMC CORPORATION & ANOR VS. SCOA PETROLEUM SERVICES LTD & ORS. (2015) LPELR 40883 (CA).” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
COURT AND PROCEDURE: LOCUS STANDI
“The right to sue or locus standi can be conferred by the constitution, statute or by customary law. For instance, a member of a family can even without the consent of the other member sue to enforce his right to protect the family rights or property. However, it is required in every such case for a party to show that he has a right to protect and that his coming to Court is to seek remedy so that the right will not be violated. See ODENEYE VS. EFUNUGA (1990) 11 – 12 SC 185. The apex Court had also admonished that the issue of locus standi in a representative action should be broadly considered with due regard to the corporate interest being sought to be protected bearing in mind who the real plaintiff is or are. See LADEJOBI & ORS. VS. OGUNTAYO & ORS (2004) 9 – 12 SCM (PT. 1) 105.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
UNITY BANK PLC – Appellant(s)
AND
M.O. AKPEJI
(Suing for himself and on behalf of members of Ezionobo Branch of Eshinavaka Family, Igarra.) – Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Edo State sitting at Igarra and delivered by M.O. Ighodalo J., on the 25th day of November, 2015, wherein the said judgment was entered in favour of the claimant (now Respondent).
The Respondent herein had as claimant, instituted an action in a representative capacity via a writ of summons filed together with a statement of claim on the 24/4/2011 against the defendant (now Appellant). In paragraph 18 of the Further Amended Statement of Claim subsequently filed on 21/9/2012, the Respondent sought the following reliefs against the Appellant.
(i) A declaration that the purported Deed of Conveyance dated 16th December, 1997 (or 1977) and registered as No. 3 at page 3 in volume 533 at the Land Registry in Benin City whereby Akoko Edo Local Government Council allegedly conveyed the land subject matter of this suit to the defendant’s predecessor-in-title (i.e New Nigeria Bank Plc) is null and void and of no effect whatsoever as the Akoko Edo Local Government Council had no title in the land to transfer to the defendant’s predecessors-in-title or to the defendant or to any other person or authority whosoever.
(ii) N1,200,000 (One Million Two Hundred Thousand Naira) rent per annum for defendant’s continued occupation and use of the said land from 5th June, 2005 when it was given notice to quit same until the date of judgment and/or surrender of possession thereof to the plaintiff.
(iii) A mandatory injunction directing the defendant to forthwith vacate and surrender possession of the said property to the plaintiffs: OR ALTERNATIVELY: N60,000,000 (Sixty Million Naira) as full and final compensation, or as general damages, for the defendant’s wrongful acquisition of the land and/or continued occupation and use thereof.
Briefly put, the facts that led to the suit relates to a parcel of land situate in Igarra, Akoko Edo Local Government Area of Edo State. The said parcel of land is part of a large expanse of land belonging to the Eshinavaka and Eziakuta families of Igarra but which parcel of land was given to the Igarra community to build a market sometime in 1940. The said market was later taken over by the Igarra Native Authority which changed to Akoko Edo Divisional Council but subsequently renamed Akoko Edo Local Government Council. The said market was subsequently closed down and moved to another location in the town. However sometime in 1977, the Akoko Edo Local Government Council conveyed the said parcel of land on which the old market was built to the Appellant for the purpose of building a branch of the bank.
The Deed of Conveyance is dated 16/12/77 and registered as No. 3 at page 3 volume 533 at the Lands Registry in the office in Benin City. Upon the news that a bank was to be given the land, the Respondents were said to have protested to the Local Government Chairman who at a meeting set up to resolve the issue admonished them on the positive development the bank will bring to the community and promised that they will be compensated adequately should the bank decide to acquire the land because he knows the land belongs to the Respondents.
However, upon getting information to the effect that having subsequently closed down the said Igarra branch of the bank, the Appellant planned to sale the land to a third party, the Respondent through their counsel Messrs Sam Obaro & Co. wrote to the Appellant to vacate and surrender the said parcel of land to them. But the Appellant’s response was that the said parcel of land was formally conveyed to it by the Akoko Edo Local Government Council. Hence this action by the Respondents to recover the said land.
The case eventually proceeded for trial on the basis of the Respondent’s further amended statement of claim filed on 21/9/2012 and the Appellant’s further amended statement of defence filed on 7/5/2013 as well as the statement of oath of the witnesses.
Upon adoption of written addresses, the learned trial Judge delivered judgment on the 25/11/2015 wherein he granted the reliefs claimed except for the reliefs (ii) and (iii) which were varied.
The Appellant was not satisfied with the said judgment and consequently filed a Notice of Appeal with seven grounds of appeal on 11/12/2015 and one additional ground of appeal on 18/1/2016 (see pages 264 – 268 of the record of appeal).
Parties subsequently filed and served their respective briefs of argument which they adopted and relied upon at the hearing of the appeal on 30/4/2018.
In the Appellant’s brief of argument filed on 22/5/2017, the following seven issues were formulated for determination:
(1) Whether in the circumstances of this case, the learned trial Court (sic) was right to hold that the Respondent had the locus standi and/or authority to institute this suit for themselves and on behalf of Ezionobo family a branch of the Eshinavaka royal family of Igarra? (Ground 1).
(2) Whether the learned trial Court (sic) was right in holding that this action is not statute barred? (Ground 2).
(3) Whether the learned trial Court (sic) was correct when it delivered that the Deed of Conveyance (Exhibit E) with which the Akoko Edo Local Government Council transferred the land in dispute to the Appellant was null and void in the circumstance of this case? (Ground 5)
(4) Whether the learned trail Judge was right in holding that the non-joinder of the Akoko Edo Local Government Council as a party in this suit by the Respondent did not prejudice their claims? (Ground 3).
(5) Whether the learned trial Court (sic) was right in awarding the sum of N3,000,000.00 as nominal damages in favour of the Respondent and whether the award was not excessive in the circumstances of this case? (Ground 8).
(6) Whether the learned trial Court (sic) was right in its award of the sum of N100,000.00 as cost in favour of the Respondent? (Ground 6)
(7) Whether the learned trial Court (sic) was right to award the sum of N30,000,000.00 as full and final compensation in favour of the Respondent for the piece of land? (Ground 4)
In the Respondent’s brief of argument filed on 23/1/2018, the following four issues were distilled for determination:
(1) Whether on the pleadings and evidence in this case the learned trial Judge was right in holding that the Respondent had competence to institute this suit for themselves and as representatives of Ezionobo Branch of the Eshinavaka family of Igarra. (From ground 1 of the grounds of appeal)
(2) Whether the learned trial Judge was right in holding that the suit was not statute barred. (Ground 2 of the grounds of appeal)
(3) Whether the learned trial Judge was right in holding that the non-joinder of Akoko Edo Local Government Council was not fatal to this suit. (Ground 3 of the grounds of appeal)
(4) Whether having regard to this suit, the learned trial Judge was right in awarding judgment to the Respondents in this suit? (Ground 5, 6, 7 and 8 of the grounds of appeal)
The seven issues raised in the Appellant’s brief of argument encapsulates the above set out four issues as raised by the Respondents. I will therefore consider this appeal on the basis of the seven issues as formulated by the Appellant.
ISSUE 1
Dwelling on this issue, learned counsel for the Appellant submitted that the learned trial Judge was wrong to hold that the Respondent had the locus standi and/or authorisation of the Ezionobo family branch of Eshinavaka royal family of Igarra to institute this action. This is based on the fact that the Respondent is not a principal member of the Respondent?s family and he did not have the authorisation of the Eshinavaka family of Igarra to institute the action. Learned counsel then referred to Exhibits ‘A’ and ‘C’ which he says are the foundation of the Respondent’s claim to the land and which letters were said to have been written on the instructions and on behalf of the Otaru of Igarra, the Igarra community and the Eshinavaka family of Igarra, which three entities were referred to in Exhibit A’ as owners of the land on which the New Nigeria Bank building at Igarra is built.?
It was then contended that the name of Ezionobo family was not mentioned in Exhibit ‘A’ as being the owner or having any interest in the land in dispute, moreso that Ezionobo is not the only branch of the Eshinavaka royal family of Igarra because there are three other branches and there is no proof that the said land was partitioned to the Respondent?s family of Ezionobo. On this, the following cases were cited in support. OLODO VS. JOSIAH (2010) 18 NWLR (PT. 1225) 653; AKAYEPE VS. AKAYEPE (2009) 11 NWLR (PT. 1152) 217; ADESANYA VS. OTUEWU (1993) 1 NWLR (PT. 270) 414.
Learned counsel also argued that the suit was instituted by the Respondents as principal members of the Ezionobo family of Igarra and not on behalf of the Otaru of Igarra, the Igarra community or Eshinavaka royal family of Igarra who were stated in Exhibit ‘A’ as owners of the land in dispute.
It was also submitted that the challenge to the Respondent’s authority and capacity to sue was raised in the Appellant’s pleadings in compliance with the decision in WALTER WIRI & ORS VS. GODWIN WUCHE & ORS (1980) 1 – 2 SC 1. Therefore the learned trial Judge erred in law to have held that the challenge ought to have been made by the Appellant at the early stage of the proceedings by way of preliminary objection. It was urged on this Court to resolve the issue in the Appellant’s favour.
On issue 2, learned counsel submitted that the action is statute barred because the cause of action arose at least on the 2nd March, 1978 when the Deed of Conveyance, Exhibit ?E? was executed and registered and by which conveyance the Akoko Edo Local Government Council transferred the land in dispute to the Appellant and by which registration notice was given to the public and Respondents in particular on the said date. This means that the Respondent is deemed to have become aware of the said transfer and conveyance as at the 2nd March, 1978 when time begins to run for the purpose of limitation period within which the Respondent ought to have instituted the action.
Thus having filed the suit in 2011 which is outside the 12 years period of limitation from 1978 the said action is statute barred and robs the trial Court of the jurisdiction to entertain same. The following cases were cited in support. KASIM VS. NNPC (2013) 10 NWLR (PT. 1361) 46; ELABANJO VS. DAWODU (2006) 15 NWLR (PT. 1001) 76; EGBE VS. ADEFARASIN (1987) 1 NWLR \(PT. 147) page 1.
On issue 3, it was submitted by learned counsel for the Appellant that there is no iota of truth in the Respondent’s assertion to the effect that the Local Government Council chairman acknowledged that the land in dispute belong to the Respondent’s family whose consent was also obtained to allow the Appellant to occupy the land for the purpose of its business. Therefore the lower Court was wrong to have held that the ownership and title of the Respondent over the land was not challenged at any time given the permission granted the Appellant to occupy the said land.
It was further contended that the Local Government chairman could not have acknowledged the Respondent’s family as the owners of the land and then proceed to formally convey same to the Appellant as shown in Exhibit ‘E’ where ownership in the Recitals was never ascribed to the Respondent’s family.
He added that such meeting during which the chairman was alleged to have acknowledged such ownership was never shown to have even taken place as no minutes of such meeting was tendered in evidence and reliance on Exhibit ‘C’ as proof of such meeting cannot stand, being a letter written by the Respondent’s lawyer.
On issue 4, Learned counsel herein submitted that the Respondent ought to have joined the Akoko Edo Local Government Council as a party in the suit because from the pleadings and evidence led by the parties at the trial, they are serious and crucial issues that will warrant the joinder of the said council and failure to so do is fatal to the Respondent’s case. Learned counsel referred to paragraphs 5, 6, 7, 17 and 18(i) of the further amended statement of claim and paragraphs 17, 18, 19 and 31 of the Respondent’s statement on oath to submit that the land in dispute which forms part of the old market site was conveyed by the Akoko Edo Local Government Council as bona fide owners to the Appellant for valuable consideration as shown in Exhibit ‘E’. Therefore the role played by the said Local Government Council in respect of the land in dispute cannot be overemphasised and therefore warrants its being joined as a party in the suit.
On the definition of a necessary party to a suit, learned counsel cited the following authorities: UNION BEVERAGES LTD VS. PEPSICOLA INT. LTD. & ORS. (1994) 2 SCNJ 158; OBA YEKINI ELEGUSHI & ORS. VS. SARATA OSENI & ORS. (2005) 14 NWLR (PT. 945) 348; LAWAL & ORS. VS. MESSRS P.G.P. (NIG) LTD & ORS. (2001) 17 NWLR (PT. 742) 393; D.O. OGHENE & SONS LTD. VS. AMORUWA (1986) 3 NWLR (PT. 32) 859.
On issue 5, learned counsel submitted that the learned trial Judge was inconsistent and contradictory in his findings as per the head of claim in paragraph 18(ii) of the further amended statement of claim, in which case the award of the sum of N3,000,000 as nominal damages against the Appellant is perverse. Reference was then made to the findings of the learned trial Judge at pages 258 to 260 of the record wherein on one hand it was held that the Appellant cannot be said to be a trespasser based on the evidence before the Court but on the other hand it was held that the Appellant will best be regarded as a trespasser to the land in dispute. He added that the award of N3,000,000.00 was without any legal basis and it is also excessive and punitive in addition to amounting to a double compensation given the sum of N30 Million also awarded in favour of the Respondent as full and final compensation for the land in dispute occupied by the Appellant.
On issue 6, learned counsel submitted that the award of the sum of N100,000 as cost against the Appellant by the trial Court without recourse to the parties to make their inputs is wrong, moreso that no reason was given for the award of the said sum which is excessive in the circumstance of the suit. He cited the following cases, NNPC VS. CLIFCO (NIG) LTD (2011) 4 SC (PT. II) 108;HACO LTD VS. S.M. DAPSO BROWN (1973) 4 SC 107.
On issue No. 7, it was also submitted that the learned trial Judge was in error in law and misdirected himself on facts by awarding the sum of N30 Million as full and final compensation or settlement in favour of the Respondent because the said amount is not only excessive but was also in the nature of special damages which in law must be specifically pleaded with particularity and evidence led in proof of same. Learned counsel referred to paragraphs 15, 15A and 16 of the further amended statement of claim to submit that the figures stated therein as the value of the land in dispute are not product of scientific analysis or an estate valuer and the Respondent having failed to prove the value of the land as required by law, it was therefore wrong for the learned trial Judge to award the said sum of N30 Million as full and final compensation for the parcel of land in dispute.
This Court was then urged to resolve all the issues in favour of the Appellant and allow the appeal.
As earlier stated the Respondent formulated four issues for determination. Replying as per issue No. (1), learned counsel for the Respondent submitted that the Appellant challenged only the authority of the Respondent to represent the Ezionobo branch of the Eshinavaka royal family of Igarra which he represents but not his capacity to represent the family, and that being so, the Appellant ought to have raised the challenge at an early stage of the proceedings and it must not be set up as a defence as held in WIRI & ORS VS. WUCHE & ORS. (1980) 1 – 2 SC page 1.
He added that if their challenge was on the Respondent?s capacity or competence to represent the family, then it should have been pleaded with the ground of complaint which would then have to be proved by evidence. Therefore having been involved in the whole proceedings till conclusion in the capacity as represented by the Respondent, it is too late in the day for the Appellant to challenge such capacity. He cited the case of ANATOGU & ORS. VS. A.G. OF EAST CENTRAL STATE & ORS. (1976) NSCC 679 at 785 – 786.
Learned counsel added that from the commencement of the action in Igarra in 2011 till it was concluded, nobody came forward to challenge the Respondent’s authority to represent the family and the Respondent pleaded and testified to the effect that he had the authority of their family to institute and prosecute the action and which fact the Appellant did not rebut through any evidence. Further reference was made to the statement on oath of the Respondent’s witness (CW1) particularly paragraphs 2, 6, 7 and 8 for which there was no cross-examination by the Appellant and thus makes such evidence unchallenged as held in WAEC VS. OSHIONEBO (2007) All FWLR (PT. 370) 1501; AMADI VS. NWOSU (1992) 5 NWLR (PT. 241) at 284 and DIGAI VS. NANCHANG (2005) All FWLR (PT. 240) at 56.
On issue No. 2, learned counsel referred to paragraphs 1, 2 and 3 of the further amended statement of claim where it was averred that the action was brought for themselves and on behalf of Ezionobo branch of the Eshinavaka royal Family of Igarra and are the customary owners of a large parcel of land at Momodu Ajayi Road, Igarra and which land was held under customary land tenure system. He added that the averments were not challenged but expressly admitted by the Appellant in paragraph 2 of the further amended statement of defence and this makes it an admitted fact that the Respondents are original owners of the land under customary land tenure.
On issue 2, learned counsel further submitted that the land in dispute is held by the Respondents under Igarra Customary land tenure and is therefore exempted from the operation of the limitation law applicable to Edo State as prescribed in Section 1(2).
He also relied on the case of OGUNLANA VS. DADA (2009) All FWLR (PT. 473) 1404 and AGBOOLA VS. ABIMBOLA (1969) 1 All NLR 287.
On the Appellant’s complaint that the Respondent did not produce in evidence, the minute of the meeting with the chairman of Akoko Edo Local Government Council and the letter of protest to the council in 1997, it was submitted that the said document were not pleaded by either of the parties and they are not also relevant to the determination of the issues joined. That is to say, the root of title of the Appellant and whether the action is statute barred.
On issue No. 3, learned counsel submitted that given the facts of the case and the reliefs sought, the Akoko Edo Local Government Council is not a necessary party in the suit. He added that the Appellant having alleged that it’s root of title is Exhibit ‘E’ whereby the land in dispute was conveyed to it by the Local Government Council, it behoves it to call the said Akoko Edo Local Government Council as its witness or in the alternative take advantage of Order 13 Rule 19 of the Edo State High Court (Civil Procedure) Rules 2012 by applying to join the said council as a third party if it conceives that it will be liable to it for wrongfully conveying the land to it without a valid title. In support he cited the case of OKE-BOLA VS. MOLAKE supra.
On issue No. 4, it was submitted that the statement on oath of the defendant’s witness did not comply with Section 115 and 117(i) of the Evidence Act 2011 and should therefore be discountenanced. On this, he relied on the case of NLNG LTD VS. AFRICAN DEVELOPMENT INSURANCE CO. LTD (1995) 8 NWLR (PT. 416) 677 at 697 ? 698 and MILITARY GOVERNOR OF LAGOS STATE & 2 ORS. VS. ODUMEGWU OJUKWU & ANOR. (1986) 2 SC 277 at 304 – 305.
He added that the only Appellant’s witness statement on oath violates mandatory statutory provisions in that paragraphs 4 to 23 therein is simply a reproduction of the averments in paragraphs 2 to 16A of the further amended statement of defence and it is in the third person rather than being in the first person. Added to that is the fact that the witness under cross-examination admitted that he had no personal knowledge of any of the facts deposed in the statement on oath apart from what he read from the Appellant’s files and which fact was not stated in his deposition contrary to Section 115 (3) & (4) of the Evidence Act.
Learned counsel then contended that in the light of the incompetence of the statement on oath of the Appellant’s witness, its pleadings have no evidence to support it and it is to be deemed abandoned while the evidence adduced by the Respondent remains unchallenged and uncontroverted. On this, he relied on the case of INEGBEDION VS. SELO-OJEMEN & ANOR. (2013) 216 LRCN 53 and KAYDEE VENTURES LTD. VS. MINISTER OF THE FCT & ORS (2010) 181 LRCN 110.
Learned counsel further submitted that the Appellant having admitted that the Respondent was the original owner of the land in dispute, the onus then shifts on it to prove how the Respondent lost or forfeited his original title to a third party from whom the appellant now claims to have derived his title therefrom. The following cases were referred to: EWO & ORS. VS. ANI & ORS (2004) 117 LRCN 3608; ADEDEJI VS. OLOSO (2007) 145 LRCN 642; OKE-BOLA & ORS VS. MOLAKE (1975) NSCC 464 OR (1975) UILR (PT. 2) 204; ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 792; ORLU VS. GOGO-ABITE (2010) 181 LRCN 193.
It was further submitted that the Appellant herein did not plead or lead any evidence to prove how the land in dispute was donated to the Akoko Edo Local Government Council in 1940 given that the consequence of their admission that the land was originally owned by the Respondent’s family places on the Appellant the onus to show when the Respondent were divested of that original ownership and how it came to be vested on the Akoko Edo Local Government Council. Reliance was then placed on the case of OKE-BOLA VS. MOLAKE (1975) NSCC 464.
It was also contended that, based on the averments and evidence as presented by the Respondent which were not controverted, it is clear that the Akoko Edo Local Government council has no interest whatsoever in the land to convey to the Appellant, based on the principle of ”Nemo dat quod non habet” vide GBADAMOSI VS. AKINLOYE & ORS. (2013) 223 LRCN (PT. 2) page 1 at 26.
On the various reliefs sought for and granted by the lower Court, it was submitted that the Respondent led uncontradicted evidence to justify same and this was not challenged by the Appellant. As per relief (iii) which is in the alternative, it behoves the Appellant to comply with either of the two orders made, but since they had expressed no preference for any, this Court was urged to grant the order of possession and the Appellant to vacate the premises. On the whole, to resolve all the issues in favour of the Respondent.
The Appellant filed a Reply brief of argument on 14/2/18. It consists of two pages. Therein, it was urged on this Court to hold that the argument in support of the Respondent’s issue 4 does not arise from the issue for determination or any of the grounds of appeal.
On the Respondent’s submission that the statement on oath of the Appellant’s witness violates the provisions of Section 115 and 117 of the Evidence Act, it was contended that the argument is not derived from any of the issues formulated for determination or from any ground of appeal and having not filed any cross-appeal or Respondent’s notice, the submissions in paragraph 6.01 to 6.05 of the Respondent’s brief should be struck out for being incompetent.
It is expedient at this stage to address the argument proferred by the Respondent in his submission on issue No. 4 to the effect that the statement on oath of the Appellant’s sole witness did not comply with the provisions of Section 115 and 117(I) of the Evidence Act 2011 and should therefore be discountenanced.
The Appellant’s reply on this is that the arguments on that point is not derived from any of the issues formulated by the parties or from any of the grounds of appeal. Therefore having not filed any cross-appeal or Respondent’s notice, the arguments as contained in paragraphs 6.01 to 6.05 of the Respondent’s brief of argument should be struck out.
A perusal of the four issues formulated for determination by the Respondent reveal that the said argument relating to the competence of the statement on oath of the Appellant’s witness (DW1) in the lower Court is not derived from any of the said issues and issue No. 4 under which it was argued has nothing whatsoever to do with the statement on oath of the DW1 or compliance with Section 115 & 117 (I) of the Evidence Act 2011.
The law is settled to the effect that arguments in an appeal must derive from the issue or issues for determination relating to the grounds of appeal. Therefore, any such argument that is not founded or based on any issue formulated for determination in any appeal or related to any ground of appeal is incompetent and will be discountenanced. Therefore an argument proferred in support of any issue for determination must of necessity be consistent with the issue under which it is being canvassed. See ONYIA VS. MBIKO & ANOR. (2014) LPELR 23028 (CA); OBIONWU & ORS. VS. INEC (2013) 22573 (CA).
While arguing on an issue, it is wrong to embark on the argument or matters that are outside the complaint as raised in the issue for determination as was done by the Respondent in the instant case.
Consequently, the argument relating to the competence of the statement on oath of the DW1 vis-a-vis Section 115 and 117(I) of the Evidence Act 2011 as contained in paragraphs 6.01 to 6.05 of the Respondent’s brief is discountenanced and accordingly struck out.
Now dealing with the Appellant’s issue No. 1, that is, whether the learned trial Judge was right to hold that the Respondent has the locus standi and/or authorisation to institute the suit for themselves and on behalf of the Ezionobo family, a branch of the Eshinavaka royal family of Igarra.
The essential condition for sustaining a representative action is that the persons who are to be represented have the same interest as the plaintiff in one and the same cause or matter. There must therefore be a common interest alike in the sense that its subject or its relation to that subject must be the same. In other words, the persons who are to be represented and the persons representing them must have the same common interest in the subject matter of litigation. See MOZIE & ORS. VS. MBAMALU & ORS (2006) 7 SCNJ 411; ELIJA IDISE & ORS VS. WILLLIAMS LTD (1995) 1 SCNJ 120; EJEZIE & ORS. VS. ANUWU & ORS. (2008) 4 SCNJ 113.
The right to sue or locus standi can be conferred by the constitution, statute or by customary law. For instance, a member of a family can even without the consent of the other member sue to enforce his right to protect the family rights or property. However, it is required in every such case for a party to show that he has a right to protect and that his coming to Court is to seek remedy so that the right will not be violated. See ODENEYE VS. EFUNUGA (1990) 11 – 12 SC 185. The apex Court had also admonished that the issue of locus standi in a representative action should be broadly considered with due regard to the corporate interest being sought to be protected bearing in mind who the real plaintiff is or are. See LADEJOBI & ORS. VS. OGUNTAYO & ORS (2004) 9 – 12 SCM (PT. 1) 105.
In the instant case, there were originally two claimants who instituted the action for themselves and on behalf of members of Ezionobo branch of Eshinavaka Royal family of Igarra but upon the demise of the first claimant, the second claimant (now Respondent) continued with the suit till conclusion. In paragraphs 1 to 3 of the further amended statement of claim they averred as follows:
1. The plaintiffs on record are principal members of the Ezionobo Branch of the Eshinavaka Royal Family of Igarra in Akoko Local Government Area of Edo State and they have instituted this action for themselves and as representatives and with the consent and authority, of the said branch of the said family.
2. The plaintiffs aver that the Eshinavaka Royal Family is made up of four branches i.e Eziosiwo, Ezibemi, Eziavi and Ezionobo Branches, and each of the Branches customarily acquire and own separate parcels of land exclusive to themselves as other family units in Igarra under Igarra customary land tenure system also do.
3. The plaintiffs are the customary owners of a large parcel of land at Momodu Ajayi Road, in the Utua Quarters of Igarra, which is an urban area, in Edo State and within the jurisdiction of this Honourable Court.
The above set out averment was confirmed in the Respondent’s statement on oath wherein he deposed as follows in paragraph 2 thereof;
(2) That 1st claimant on record and I were mandated by the Ezionobo branch of the Eshinavaka Royal Family of Igarra to institute this action on behalf of all members of the said branch of the Eshinavaka Royal Family.
The Appellant in paragraph 1 of the further amended statement of defence averred that:
”(1) The defendant is not in a position to admit or deny the averments in paragraph 1 of the further amended statement of claim and may at the trial demand strict proof that the claimants are principal members of their family and have been authorised to institute this action.”
In the statement on oath of the Appellant’s only witness, it was deposed thus in paragraph 4 therein;
”(4) That the defendant states that the claimants are not the principal members of their family and that they have not been duly authorised to institute this action.”
The Respondent under cross-examination justified the pleading and evidence by asserting that they are representing part of the larger Eshinavaka Royal Family and that the land in dispute belong to the said part which is Ezionobo family and that the Eziakuta family are not joint owners of the land in dispute with them.
On the other hand, the Appellant witness (Mr. Francis Okundia) stated during cross-examination that he does not know any member of the Eshinavaka royal family personally and that his statement on oath was based on what he read in the file. It follows then that this is simply a case of mere denial of the authority and locus standi of the Respondent to institute the action without any evidence to prove same.
It may be expected of the Respondent to produce a documentary evidence of such authority to sue in a representative capacity but sufficient and unrebutted evidence have to my mind been adduced by the Respondent to prove that he has the right and the authority to sue in a representative capacity. As rightly held by the learned trial Judge, evidence could be oral or documentary, and the Respondent has proferred satisfactory evidence of the Approval and authority of the Ezionobo family to commence the action in a representative capacity. See ATANDA VS. OLAREWAJU (1988) 10 ? 11 SC page 1 and LADEJOBI VS. OGUNTAYO supra.
Furthermore, in NWAOSU & ORS. VS. HFP ENGINEERING (NIG) LTD (2014) LPELR 23197 (CA), this Court held that it is not in all cases that the Court will hold that a party has no authority to sue in a representative capacity where there is no formal authority by way of documents. The Courts therefore adopts a flexible attitude based on the facts and circumstances of each case. See also ADUKWU VS. COMMISSIONER FOR WORKS ENUGU STATE (1997) 2 NWLR (PT. 489) 588.
I need to seize this opportunity to bring to the fore a salient issue inadvertently ignored by the Appellant’s counsel.
That is to say, that while the Respondent pleaded copiously the fact that the land in dispute formed part of the larger parcel of land given out to the Igarra Community by the Eziakuta family and the Ezionobo part of Eshinavaka family for the building of a community market by the Igarra community, the Appellant wrongly hinged on it to insist that the land in dispute belongs to the Eshinavaka and Eziakuta families thus making the Respondent a stranger to the whole transaction and whom if any should obtain authority from both the Eshinavaka and Eziakuta families. This indeed is a total misconception and misapprehension of the Respondent’s case given the clear cut averments in paragraphs 3, 3A and 3B of the further statement of defence.
In a nutshell, the Respondents are not claiming the whole parcel of land earlier donated to the community to build a market because from the onset their own contribution constitutes only part of the whole and upon movement of the market to another area of the town by the local government council, the said land hosting the old market reverted back to the original owners who went back into possession of their respective portions.
That is to say, the Eziakuta family and the Ezionobo family which is a branch of the larger Eshinavaka royal Family. There is also unchallenged evidence on record that the said Eshinavaka Royal Family consists of four branches and each with their own individual land holdings hence only the Ezionobo family who gave out their own part of the land for a market, now upon reversion took back what was theirs without much ado by the larger family because they are aware of who owns what. Also the Eziakuta family having recovered their own portion of the larger parcel of land earlier given or donated for the community market have no business with the portion meant for the Ezionobo family branch of the larger Eshinovaka Royal Family by customary land tenure.
Albeit, my findings is that there is proof by evidence and I so hold that the Respondent has the right to sue and the authority to commence the action in a representative capacity. This issue is therefore resolved against the Appellant.
On issue No. 2, whether the learned trial Judge was right to hold that the action is not statute barred.
It is now settled by a plethora of cases that time begins to run for the purpose of the limitation law from the date the cause of action accrues. See SPDC (NIG) LTD VS. FARAH (1995) 3 NWLR (PT. 382) 148; OGUNKO VS. SHELLE (2004) 6 NWLR (PT. 868) 17; OKENWA VS. MILITARY GOVERNOR OF IMO STATE (1997) 6 NWLR (PT. 507) 154.
It is also trite law that in order to ascertain the time when the cause of action accrued for the purpose of the limitation law, the Court only needs to look at the writ of summons and the statement of claim, which of necessity should contain averments of facts as to when the wrong committed by the defendant took place and compare it with the date when the writ of summons was filed. Put in another way the period of limitation is determined by perusing the writ of summons and the statement of claim alleging when the wrong was committed and which gave rise to the cause of action and by comparing that date with the date on which the writ was filed. Where it is found that the date on the writ of summons is beyond the period allowed by the relevant limitation law, the action is said to be statute barred and as such extinguishes a plaintiff’s right to address his grievances in a Court of law. See ELABANJO VS. DAWODU (2006) 6 SCNJ 204; AMUSAN VS. OBIDEYI (2005) 14 NWLR (PT. 945) 322; SULE VS. KABIR (2011) 2 NWLR (PT. 1232) 504. FMC CORPORATION & ANOR VS. SCOA PETROLEUM SERVICES LTD & ORS. (2015) LPELR 40883 (CA).
In the instant case, the Appellant’s complaint is that the Respondent’s action is caught by Section 6(2) of the Limitation Law Cap, 89, Laws of the defunct Bendel State, now applicable to Edo State which provides that action for recovery of land shall not be brought after the expiration of twelve years from the date the right of action accrued.
For the Appellant, the suit was filed by the Respondent on 24/4/2011 for a cause of action that arose in 1978 when the Akoko Edo Local Government Council by a Deed of Conveyance transferred the land in dispute to the Appellant. That is thirty three years after the said transfer which is more than twelve years period allowed by the limitation law.
For the Respondent, the land in dispute is held by the Respondents under Igarra Customary land tenure and as such it is exempted from the operation of Section 6(2) of the Limitation Law of Edo State by virtue of Section 1(2) thereof.
Now Section 6(2) of the Limitation Law, Cap 89, Laws of Bendel State, as applicable to Edo State provides thus:
”No action shall be brought by any other person to recover any other land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims to that person.”
However Section 1(2) of the said Law provides an exception as follows:
1(2) Nothing in this Law affects actions in respect of the title to land or any interest in land held by customary tenure.
Albeit, authorities are in tandem with the above exception to the effect that the statute of Limitation have no application under customary land law. See AGBOOLA VS. ABIMBOLA (1969) 1 All NLR 287; MAJEKODUNMI VS. ABINA (2002) FWLR (PT. 100) 1336. Also in OGUNLANA VS. DADA (2009) All FWLR (PT. 473) 434, this Court per Rhodes Vivour JCA (as he then was) while relying on AGBOOLA VS. ABIMBOLA supra held inter alia that:
”The position of the law is that statutes of limitation are not applicable to tenures held under native law and custom.”
In the instant case, the Respondents pleaded in paragraphs 2 and 3 of the further amended statement of claim as follows:
2. The plaintiffs aver that the Eshinavaka Royal Family is made up of four branches i.e Eziosiwo, Ezibemi, Eziavi and Ezionobo Branches, and each of the Branches customarily acquire and own separate parcels of land exclusive to themselves as other family units in Igarra under Igarra customary land tenure system also do.
3. The plaintiffs are the customary owners of a large parcel of land at Momodu Ajayi Road, in the Utua Quarters of Igarra, which is an urban area, in Edo State and within the jurisdiction of this Honourable Court.
Evidence was also led in support of the pleaded facts as per the testimony of the Respondent and the claimant witness (CW1) to the effect that the land in dispute was held by the Respondent’s family (Ezionobo) under customary land tenure. This fact was not challenged or controverted by the Appellant and it remains accepted as proof that the said land as claimed by the Respondent was held under customary land tenure in which case, the Respondent’s action falls under the exception provided by Section 1(2) of the Limitation Law of Bendel State as applicable to Edo State. Accordingly the Respondent’s action is not statute barred. This issue is hereby resolved against the Appellant.
On issue No. 3, which deals with whether the learned trial Judge rightly declared Deed of Conveyance Exhibit ‘E’ null and void. The Respondent had in paragraph 18(i) of the further amended statement of claim sought the following reliefs:
18(i) A declaration that the purported Deed of Conveyance dated 16th December, 1997 (or 1977) and registered as No. 3 at page 3 in volume 533 at the Land Registry in Benin City whereby Akoko Edo Local Government Council allegedly conveyed the land subject matter of this suit to the defendant’s predecessor-in-title (i.e New Nigeria Bank Plc) is null and void and of no effect whatsoever as the Akoko Edo Local Government Council had no title in the land to transfer to the defendant’s predecessors-in-title or to the defendant or to any other person or authority whosoever.
The Respondent in proof of the above set out relief averred in paragraphs 3 to 3F and 5, 6, 7, 8, 9, 10 and 11 of the further amended statement of claim as follows:
3. The plaintiffs are the customary owners of a large parcel of land at Momodu Ajayi Road, in the Utua Quarters of Igarra, which is an urban area, in Edo State and within the jurisdiction of this Honourable Court.
3A The plaintiffs aver that their parcel of land aforesaid share common boundary with the land of Eziakuta family of Utua Quarters, igarra, in the same area of Igarra.
3B The plaintiffs aver that sometime in or before 1940 the Igarra Community requested for part of the said plaintiffs’ large expanse of land and part of the Eziakuta family’s parcel of land aforesaid for the purpose of the community’s market and the plaintiffs and the Eziakuta family obliged and granted the community customary tenancy thereof and the market was established thereon by the Igarra community. Under Igarra customary law, customary tenancy thus granted to the community for a specific communal purpose is free of all the usual incidents of customary tenancy; but upon the cessation of the purpose for which the tenancy was granted the land automatically reverts to the original owner-family or families thereof.
3C. When the Igarra Native authority was created in or about 1943 by the then British Colonial Administration the management of markets (including the said Igarra community market) was taken over by the Igarra Native Authority which later became part of the Akoko Edo Divisional Council, which was create in or about 1963, and later re-named Akoko Edo Local Government Council in 1977.
3D. In or about 1976 the said market was closed down and a new market was established in another location at the New Market Road, Utua Quarters, Igarra; and consequently the part of the former market land originally owned by the plaintiffs and the part thereof originally owned by the Eziakuta family respectively reverted to them in accordance with Igarra native law and custom and each of the two families took possession of their respective part of the vacated old market land.
3E. Plaintiffs aver that over the years since the old market land reverted to them, both the plaintiffs and the Eziakuta family have either been allocating parts of their respective portions of the land to members of their respective families or making outright grants or leases or sales thereof to other people, as they pleased, without any let or hindrance from any persons or authority whosoever. Some of the persons to whom plaintiffs later sold or granted parts of their own part of the old market land include Chief F.S. Ehinlaiye, Bank PHB Plc, Mr. S.K. Bello (who later resold to former Intercontinental Bank Plc) inter alia, all of which parcels of land are in the former market land which reverted to them as aforesaid and directly opposite the land in dispute herein.
3F. Plaintiffs aver that the parcel of land, measuring approximately 247 feet by 350 feet by 163 feet by 207 feet by 147 feet, now occupied and fenced round by the defendant with concrete blocks and subject matter of this suit is situate exclusively within plaintiffs part of the old market land aforesaid.
5. In or about August 1977 the plaintiffs had information that the Akoko Edo Local Government Council was arranging to make a grant of part of their customary land aforesaid to the then New Nigeria Bank Limited and they (the plaintiff) promptly protested against the Council?s proposed action.
6. Consequent on the said protest the then chairman of the Akoko Edo Local Government Council invited the then elders of the plaintiff’s family to a meeting in the Council on 27th September, 1977 at which he persuaded the plaintiffs about the economic benefits of a bank in the locality.
7. At the meeting, the said Chairman having acknowledged that the land originally belonged to, and granted by, the plaintiffs for the purpose of the old Igarra market and having assured them that if they permitted the building of the bank on the land any further information or action regarding payment of compensation on the land will be communicated to them, the plaintiffs consented that the Council may invite the New Nigeria Bank Limited to go into occupation and use of the land provided that it at any future time they (the bank) desired to acquire it and to pay compensation therefore, they would deal directly with the plaintiffs. This was also subsequently made very clear to the New Nigeria bank Plc.
8. New Nigeria Bank Limited later changed its name to NNB International Bank Plc, and later still, in or about 2005, merged with other Banks and became known as Unity Bank Plc, the defendant herein.
9. In or about October, 2002 New Nigeria Bank Plc in what they called Branch Rationalisation Scheme/Schedule closed down their Igarra Branch on the said plaintiffs’ land and were attempting to alienate or sell the property to third parties whereupon plaintiffs instructed their counsel, Messrs Sam Obaro & Co, to write to New Nigeria Bank Plc for the surrender of the land to them as they were merely on the land as tenant-at-sufferance to use same for banking services only and not to alienate it, which instruct the said counsel promptly carried out per their letter dated 5th June, 2003. The said counsel’s letter addressed to the Managing Director, NNB Plc, Benin City shall be founded upon at the trial and defendants are hereby put on notice to produce the original thereof at the trial.
10. Plaintiffs aver that to their utmost surprise, New Nigeria Bank replied, per their letter dated 19th June, 2003, to the effect that the Akoko Edo Local Government Council had conveyed the land to them by a Deed of Conveyance dated 16th December, 1997 and registered as No. 3 page 3 in Volume 533 at the Lands Registry in Benin City. Plaintiff shall at the trial found on the said letter from New Nigeria Bank.
11. Plaintiffs aver that at no time did they ever transfer their customary rights over or interest in, the land to the Akoko Edo Local Government Council or to the defendants; nor was it ever compulsorily acquired by the Local Government Council or the State Government under any law nor compensation ever paid to the plaintiffs therefore.
Evidence was also adduced by the Respondent in support of the pleadings as to how in 1940 the Igarra community decided to establish a market and requested the Eziakuta family and Ezionobo family to release part of their land for the purpose of the market and the two families granted the request rent free under a customary tenancy in accordance with customary law of Igarra land under which such land given for communal use, automatically reverts back to the original owners upon cessation of use by the grantee. The management of the said community market was later taken over by the Igarra Native authority created by the colonial masters. The Native Authority later changed to Akoko Edo Divisional Council and then to Akoko Edo Local Government Council which in 1976 decided to close down the said community market and relocated same to another area in the town. Upon relocation of the market the two families took over possession of their respective portions of the land on which the old market was built and exercised acts of ownership including allotment to members of the family, and selling some to other people.
The emergence of the Appellant on the land in dispute was said to be at the instance of the local government council which upon protest by the Respondent family, the council chairman persuaded them to allow the Appellant to stay on the land because of its economic benefit to the community and if eventually the bank decides to acquire the land, compensation will be paid to them. This was not to be until October 2002 when the Respondent family got information that the Appellant closed down its Igarra branch and had plans to sell off the building on the land. This prompted the Respondent to write to the Appellant to vacate the land and surrender same, only for the Appellant to reply by stating that the said land had been conveyed to it by the Akoko Edo Local Government council by a Deed of Conveyance dated 16th December, 1977.
The Appellant’s response as per its pleadings is that the said land in dispute was duly transferred to it by the Akoko Edo Local Government Council via the Deed of Conveyance (Exhibit E) which has been registered as No. 3 at page 3 in volume 533 at the lands Registry in Benin City. Also that the said land formed part of the land originally donated to the Akoko Edo Council for the building of the Igarra main market which upon relocation, the council, the said portion of land was transferred by the council to the Appellant with consent of the Eziakuta and Eshinavaka families who were joint owners of the land.
Incidentally, the Appellant averred in paragraph 2 of the further amended statement of defence that the said land occupied by it was jointly owned by the Eziakuta and Eshinavaka families of Igarra. This was confirmed by the evidence of the DW1 wherein at paragraph 5 of the statement on oath he deposed thus:
5. That the defendant states that the piece of land currently occupied by it was jointly owned by the Eziakuta and Eshinavaka families of Igarra. The claimants are a branch of the Eshinavaka family and do not have the authority of the Eshinavaka and Eziakuta families to institute this action as the land in dispute was jointly owned by these families. This piece of land formed part of a large parcel of land originally donated in the early 1940’s by these families on behalf of the community to the Akoko Edo Council for the citing of the Igarra main market. The market was relocated to the express-way and the land was allocated by the council to the bank for the establishment of its branch. The said parcel of land never reverted back to these families. The claimants have never at any time before the institution of this suit laid any claim or attempted to assert any claim to the land under Igarra native law and custom. The said land was given to the Local Government Council free from all incidents of native law and custom.
The principle of law guiding this state of affairs is that where the defendant admits that a claimant was the original owner of the land in dispute, the onus of proof then shifts to such defendant to prove how the said claimant forfeited or transferred his original title so acknowledged to either the defendant directly by transfer, gift, or assignment or even to a third party from whom the defendant derived title from. The case of ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 792 (OR (1986) 2 SC 385 also cited by the Respondent is quite apposite on this principle of law wherein the Supreme Court per Oputa JSC (now of blessed memory) held at pages 397 to 398 of the report as follows:
”The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, that will be the end of the story. Similarly if a particular averment of the plaintiff is admitted, there will no longer be onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the Court has to look critically at the pleadings. Where for instance, the plaintiff pleads possession of the land in dispute as his root of title and the Appellant admits that possession but adds that the land was given to the plaintiff on pledge, the onus shifts onto the Appellant to prove that the plaintiff is not the owner of the land in his possession of which has been admitted. Once the Appellant admits the plaintiff?s possession of the land in dispute in his statement of defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and Section 145 of the Evidence Act Cap 62 of 1958 will impose a burden on the Appellant to prove the negative-namely that the plaintiff is not the owner. Onyekaonwu & ors. v. Ekwubiri (1966) 1 All N.L.R. 32 at 35. In such a case, it is the Appellant who will begin and if at the close of his case he fails to prove that the plaintiff is not the owner, the plaintiff?s claim succeeds without even the plaintiff giving any further evidence.”
See also the case of EZEUDU VS. OBIAGWU (1986) 2 NWLR (PT. 21) 208 at 216 where the Apex Court per Aniagolu JSC held that:
One important feature of this case on appeal is that the defendants have admitted that the plaintiff is in possession of the portion of land in dispute, explaining that possession by contending that they pledged the land to the plaintiff’s ancestor – a pledge which the plaintiff denied.
The plaintiff has asserted that he and his forebears have been in possession of the land by right of their ownership of the land. With this admission by the defendants that the plaintiff was in possession, the onus shifted on the defendants to prove the pledge which they alleged. If they failed to prove the pledge then the presumption of law, having regard to Section 145 of the Evidence Act would be that the plaintiff was the owner of the land of which he is in possession. That section rightly states that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. See George Onobruchere & Anor. Vs. Ivwemoebo Esegine (1986) 1 NWLR (Pt. 19) 799 SC.
See also the following cases: OKOYE & ORS. VS NWANKWO (2014) 15 NWLR (PT. 1429) 93; AINA VS. ARIYO & ANOR. (2011) LPELR 42888 (CA) MAJEKODUNMI VS. ABINA (2002) 3 NWLR (PT. 755) 720.
In MOGEKWU & ANOR VS ADELANA & ORS (2014) LPELR (23617) CA this Court per Abiru JCA amplified and simplified this principle of law at pages 59 to 60 of the report as follows:
”It is trite that where a defendant in an action for declaration of title to land admits in his pleadings that the claimant is the original owner of the land in dispute, the onus is on the defendant to establish a change of ownership by sale or otherwise. There is no onus on the claimant to establish a sale or grant of the land. Thus it is the duty of the defendant to begin to adduce evidence, for it is the defendant who will lose if no more evidence is adduced having regard to the state of the pleadings.”
Also in DIMASA PROPERTY LTD. VS. YUSUF (2009) All FWLR (PT. 467) 3247. It was held that once land is admitted to belong to a party originally, it is for the defendant to prove by what right he claims to have become the owner in place of the plaintiff. The sum of it all is that what is admitted need no further proof. In other words, where facts are directly admitted or deemed to be admitted as provided for in the relevant rules of civil procedure or by statute, dealing with pleadings, such averments do not need to be proved. See SOLANA VS. OLUSANYA & ORS (1975) LPELR 3097 (SC) and ROSEHILL LTD VS. GTB PLC. (2016) LPELR 41665 (CA); KANO VS. OYELAKIN (1993) LPELR 1662 (SC).
I do not therefore intend in this judgment to engage in further exhaustive consideration as to the title of the Respondent given the undisputed facts and evidence that they belong to the branch of the Eshinavaka Royal Family of Igarra, one of the two families admitted by the Appellant to be the original owners of the land in dispute.
The question then is whether the Appellants claim that the said land was rightly conveyed to it by the Akoko Edo Local Government Council by a Deed of Conveyance made in 1977 can be sustained.
The Appellant’s assertion is that the said land was granted to the Akoko Edo Local Government council by the Eshinavaka and Eziakuta families to build a market and it was an outright grant under Igarra customary law. Therefore the said council properly exercised its right of ownership to convey same to the Appellant. But the Respondent argued otherwise, by stating that the said land in dispute was part of a larger parcel of land donated to the Igarra community upon request made to the Eshinavaka and Eziakuta families and part of what was donated by the Eshinavaka family belonging to Ezinobo branch of the family. The said land was used to build a community market but in subsequent years the colonial administration created Igarra native authority which took over the management of the said market. The market was eventually closed down and a new one built in another part of the town by the Local Government Council.
Thus by Igarra Customary land tenure, the land harbouring the old market reverted back to the original owners and was never the property of the Local Government Council who also acknowledged same upon protest to it by the Respondent’s family when the Appellant was granted access to and use of the said land to build a branch of its bank.
The Appellant did not call the local government council as a witness to support or substantiate its claim that title to the land inhere in the local government council which rightly conveyed same to it. The only witness who gave evidence in support of its pleading admitted that all he testified about in the case are based on what he read from the Appellant bank?s file and he does not personally know any of the parties concerned with the original ownership of the land.
In other words, the Appellant did not lead any evidence in support of its claim that the land was originally granted to the Akoko Edo Local Government Council in 1940 neither was any evidence led to prove the alleged customary grant by the original owners which conferred title to the local government council as claimed in the Deed of conveyance, Exhibit ‘E’.
The Appellant did not also profer any evidence to contradict or discredit that of the Respondent with regard to the fact that the land in question was donated to the Igarra community to build a community market in 1940 and that the Igarra Native Authority which eventually emerged and gradually metamorphosed to the Akoko Edo Local Government Council only took over the management of the market before it was relocated in 1976 and was not granted title to the land which harboured the old market. There is indeed a world of difference between the management of a market and ownership of the land upon which the market is located. A similar situation played out in the case of OKE-BOLA VS. MOLAKE (1975) NSCC 464 wherein the Supreme Court per Sowemimo JSC (as he then was) held thus:
”It is not in dispute in this case ….. that although the original title was and is still vested in the plaintiffs, the Appellant claimed to have derived his title from Exhibit 1, which is a Deed of Mortgage between the Native Authorities of Imore Town and L.A. Cardoso executed on the 25th June, 1921. In the Exhibit, the native Authority of Imore Town described themselves:
As owners of a large piece of land situate at Ijora in the said plan (hereinafter or partly derived) in fee simple in possession free from incumbrances and upon the Mortgage demanding payment from the mortgagors to him of the sum.
No averment was made nor was any evidence led whatsoever that the plaintiffs’ predecessors were the same as the Native Authorities of Imore Town and therefore Exhibit 1 could not be regarded as divesting the plaintiffs’ predecessors and consequently the plaintiffs of the title to the land. No evidence was called by the defendant to show how the Native Authorities of Imore Town came to be the owners of the land, which had always belonged to the plaintiffs’ families.
The submission of learned counsel for the plaintiffs is sound and the onus is therefore placed on the defendant to prove lawful possession. On the strength of the above set out decision of the apex Court and given my earlier finding that the Appellant did not prove that the local government had any title to the land which was conveyed to it in 1977, it follows that the only reachable conclusion is that the Akoko Edo Local Government council conveyed to the Appellant title to a land that does not belong to it. Thus, based on the legal principle of Nemo dat quod non habet, that is to say that no one give what he does not have. The Deed of Conveyance by which the land in dispute was conveyed to the Appellant by the Akoko Edo Local Government in 1977 is a nullity. See FAMUROTI VS. AGBEKE (1991) 5 NWLR (PT. 189) 1. Consequently this issue is also resolved against the Appellant.
On Issue No. 4 which deals with whether the non-joinder of the Akoko Edo Local Government Council as a party in the suit by the Respondent did not prejudice their claim.
The Appellant contention here is that the Respondent ought to have joined the Akoko Edo Local Government Council as a party in the suit because from the pleadings and evidence before the trial Court, there are serious issues that would warrant its joinder and failure to so do is fatal to the Respondent’s case.
For the Respondent, the Local Government Council is not a necessary party having regard to the Respondent’s claim, but, that the Appellant alleged that its root of title is Exhibit ‘E’ the (Deed of Conveyance) executed by the said local government council. Therefore it behoves it to call the local government council as a witness to prove same or in the alternative take advantage of Order 13 Rule 19 of the Edo State High Court (Civil Procedure) Rules 2012 to apply to join the Local Government Council as a third party to the suit.
The issue of joinder, non-joinder or mis-joinder of a party to a suit was adequately dealt with in the locus classicus case of GREEN VS. GREEN (1987) 3 NWLR (PT. 61) 480 where the Supreme Court per Oputa JSC (now of blessed memory) held inter alia on the distinction between proper parties, desirable parties and necessary parties as follows:
”This now brings me to the consideration of the difference between ‘proper parties, desirable parties and necessary parties’. Proper parties are those who though not interested in the plaintiffs’ claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.”
In the instant case, given the pleadings and evidence before the trial Court and the views earlier expressed by this Court while considering issue No. 3 in this judgment, the Akoko Edo Local Government Council falls into the category of a proper party going by the analysis in GREEN VS. GREEN supra.
Notwithstanding whichever category the said local government council falls in it is settled that a plaintiff is entitled to bring an action against any defendant he wishes will suffice to get the reliefs sought. See APAMPA VS. OGUNGBEMI (2017) LPELR (43264) CA. What is more, Order 13 Rule 16(I) of the Edo State High Court (Civil Procedure) Rules 2012 settles the issue and effect of a mis-joinder or non-joinder in a fell swoop by providing thus:
”Rule(I) No proceedings shall be defeated by reason of misjoinder or non-joinder of parties, and a Judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before him.”
The above provision has been given judicial interpretation and approval in GREEN VS. GREEN supra, wherein it held while considering Order 15 Rule 6 of the Rule of the Supreme Court of England 1979. That where there has been a non-joinder either by failure of the parties or an intervener to apply for such joinder, or failure of the Court to join suo motu, this non-joinder will not be taken as a ground for defeating the action. The above Rule of Court is said to have been designed to save rather than to destroy, to cure rather than to kill the action or suit. See also AYORINDE & ORS. VS. ONI & ANOR (2000) 3 NWLR (PT. 649) 348, where it was held that where a necessary party to an action for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. See also OLADEINDE & ANOR. VS. ODUWOLE (1962) NWLR 41; BELLO VS. INEC (2010) 8 NWLR (PT. 1196) 342 (SC); EZEKOYE VS. OGUNLADE & ANOR. (2017) LPELR 41954 (CA); ONAYEMI VS. OKUNUBI & ANOR (1965) LPELR 25253 (SC); SAPO VS. SUNMONU (2010) 11 NWLR (PT. 1205) 374; NIMASA VS. IHEANACHO & ORS. (2016) LPELR 40505 (CA).
In the light of the above set provisions of the Rules of Court as well as the authorities referred to in that regard, this issue is hereby resolved against the Appellant.
On Issue No. 5, that is whether the learned trial Judge was right to have awarded the sum of N3,000,000 as nominal damages in favour of the Respondent and whether such award is not excessive.
In awarding the sum of N3,000.000 as nominal damages the learned trial Judge made the following findings:
”As I have said in the course of this judgment, that the defendant cannot be referred as a trespasser between 27th September, 1977 and 4th July 2003, but may be regarded as one when via Exhibit A his lawful occupation on the land was terminated. In SPRING BANK PLC VS. MR. OJOTU SAMUEL ADEKUNLE (2011) 1 NWLR (PT. 1229) page 581 at 585. The Court had stated ‘a plaintiff is only entitled to only nominal damages for trespass where no damage is pleaded and proved.”’
In the instant case, there is no pleadings or evidence on record to show that the claimants suffered real damage or loss as a result of the defendant use and occupation of the land. In the circumstance the claimants will only be entitled to nominal damages. Further see the case of UMUNNA VS. OKWURAIWE (1978) 6 – 7 S.C. Pg. 1, OSUJI VS. ISIOCHA (1989) 3 NWLR (PT. 111) Pg. 623. Consequently, I hereby award the sum of N3,000,000.00 (three million naira) as nominal damages in favour of the claimants, for the defendant use and occupation of the land from 5th July 2003 till date.
The Appellant’s counsel had contended that the learned trial Judge was neither here nor there on its findings whether or not the Appellant is a trespasser to justify the award of N3million in favour of the Respondent as nominal damages for the use and occupation of the land. He added that in one breadth the Court held that in the light of the evidence before it, the Appellant cannot be said to be a trespasser, but in another breadth, it was held that the Appellant will at best be regarded as a trespasser on the land even though from the circumstances of the case, it may not strictly speaking be referred to as a trespasser. Therefore the award of the sum of N3million as nominal damages is not supported by any law or facts and it is also excessive and punitive in nature.
For the Respondent, the Appellant did not testify in support of its pleadings thereby leaving the Respondent’s testimony unchallenged and this entitles him to relief (ii) as sought in the further amended statement of claim.
I have perused the said relief (ii) which the Court considered before awarding the said sum of N3million as nominal damages. The said reliefs (ii) is hereinbelow set out:
(ii) N1,200,000 (One Million Two Hundred Thousand Naira) rent per annum for defendant’s continued occupation and use of the land from 5th June 2005 when it was given notice to quite same until the date of judgment and/or surrender of possession thereof to the plaintiff.
The learned trial Judge in his wisdom considered and found that the Appellant was never a tenant on the land and should not be treated as such hence he refused the claim for the sum of N1,200,000 per annum. However, in the midst of uncertainty whether or not the Appellant should be treated as a trespasser he proceeded to award the said sum of N3million as nominal damages for trespass, notwithstanding that on one hand he had held that the Appellant cannot be treated as a trespasser given the circumstances of the case.
To my mind, having resolved that the claim for N1,200,000.00 rent cannot stand because the Appellant is never a tenant on the land, the next point to be addressed is whether the Respondent claimed for damages for trespass and if it did, whether the trespass was proved. Thus having been confronted with the uncertainty as to the status of the Appellant as a trespasser, it would have been safer not to award the Respondent what they did not ask for especially where it is not incidental to the prayers sought. See OSUNDE VS. AZODO & ORS. (2015) LPELR 40709 (CA).
Even though the said award of N3million is tagged nominal damages, I am of the view that it is not justified given the circumstances of this case. This issue is therefore resolved in favour of the Appellant.
On Issue No. 6, which is whether the learned trial judge was right in awarding the sum of N100,000.00 as cost in favour of the Respondent.
Authorities abound that the award of cost is entirely at the discretion of the Court, and that costs follow the event of litigation. Therefore a successful party is entitled to costs unless there are special reasons why he should be deprived of such entitlement. See NNPC VS. CLIFCO (NIG) LTD (2011) 10 NWLR (PT. 255) 209; HACO LTD. VS. BROWN (1973) 4 SC (REPRINT) 103.
The award of costs involves a judicial discretion which must be exercised on fixed principles that accords with rules of reason and justice and not according to personal opinion or sentiments. The bottom-line however is that a successful party in an action, unless he had misconducted himself, is entitled to costs as of right. See INNEH VS. OBARAYE (1957) 2 FSC 58; ANYAEGBUNAM VS. OSAKA (1993) 5 NWLR (PT. 294) 449.
The Rules of Court also allows the trial Judge discretion in the award of cost and the Appellate Courts will not interfere with the way such trial Court exercises such discretion but will be compelled to interfere if the discretion was wrongly exercised by applying wrong principles of law, or where the interest of justice so demands. See NNPC VS. CLIFCO LTD supra and UNIVERSITY OF LAGOS VS. AIGORO (1985) 1 NWLR (PT. 1) page 143.
Furthermore, Order 47 Rule 3 of the Edo State High Court (Civil Procedure) Rules 2012 provides for the discretion of the Courts in the award of costs. It reads:
”Order 47 Rule 3: In every suit, the costs of the whole suit, and of each particular proceedings, therein, and the cost of every proceedings in Court shall be in the discretion of the Court as regards the person by whom they are to be paid.”
In the instant case, the learned trial Judge in his discretion decided to award the sum of N100,000 as cost of the litigation in favour of the Respondent. There is no evidence to the effect that the learned trial judge did not exercise his discretion judicially and judiciously or that the award was made outside any principle of law.
On this premise, this Court finds no reason to interfere with the said award. The issue is therefore resolved against the Appellant.
On issue No. 7, the Appellant complaint is that the award of N30 Million as full and final compensation or settlement in favour of the Respondent against the Appellant is erroneous because, it is not only excessive but also is in the nature of special damages which in law must be specifically pleaded and evidence led in proof thereof.
The learned trial Judge had in the judgment at page 263 of the record made the following orders:
”(iii) A mandatory injunction directing the defendant to forthwith vacate and surrender possession of the land to the claimants.
Alternatively, the defendants should pay the sum of N30,000,000.00 (Thirty Million Naira) to the claimants as full and final compensation for the piece or parcel of land now adjudged as belonging to the claimants.”
A careful perusal of the above set out order of the trial Court will show clearly that the main order of the Court is for the Appellant herein to vacate and surrender possession of the land in dispute to the Respondent.
The alternative order that followed is entirely at the discretion or option of the Appellant. In other words, the main order of the trial Court is for the Appellant to give up possession of the land in dispute, the Court having found that the Respondent have a better title to the land having proved same before the Court. The alternative order for the payment of the sum of N30,000,000.00 as full and final compensation to the Respondent for the said parcel of land now adjudged to belong to the Respondent is a form of soft landing for the Appellant if it chooses to follow that option, moreso that the Respondent had in paragraph 18(iii) claimed for the sum of N60,000,000.00 as compensation should the Appellant chose to remain on the land. I therefore find no basis to interfere with this aspect of the judgment of the trial Court.
On the whole, having resolved issue 5 in favour of the Appellant and the other six issues against it, this appeal succeeds in part and it is hereby allowed in part.
Consequently, except for the award of the sum of N3,000,000.00 as nominal damages which is hereby set aside, the judgment of the High Court of Edo State delivered on the 25th day of November, 2015 is hereby affirmed.
Parties to bear their costs.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I agree with the decision of my learned brother, Samuel Chukwudumebi Oseji, JCA affirming the judgment of the lower Court in the manner set out in the leading judgment.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading in draft, the leading judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI, JCA.
I agree with the reasoning and conclusion therein contained to the conclusive effect that the appeal succeeds in part and it is allowed in pact.
I abide by the consequential orders in the lead judgment.
Appearances:
O. Ovrawah, Esq.For Appellant(s)
J.O. Umakhihe with him, Funke Obaro, Esq.For Respondent(s)
Appearances
O. Ovrawah, Esq.For Appellant
AND
J.O. Umakhihe with him, Funke Obaro, Esq.For Respondent
