AJALA & ANOR v. GINIKANWA & ORS (2018)

In The Court of Appeal of Nigeria

On Friday, the 25th day of May, 2018

CA/OW/07/2012

Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLA  Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA  Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE  Justice of The Court of Appeal of Nigeria


Between

1. IKWUAGWU AJALA
2. BENEDICT OSONDU IKWUAGWU
(Suing for themselves and on behalf of the Amaba people of Isiala Isuamawu,
Isuikwuato L.G.A)-Appellants

AND

1. H.R.H EZE PETER GINIKANWA
2. CHIEF AJA IKEJI
(President, Ovim Community League, Ovim-Imenyi Branch)
3. RETIRED MAJOR JOHNSON EJIMOFOR
4. ELDER NZE A.O. KANU
5. CHIEF J.N. EJIMOFOR
6. PAUL EKEKWE
(For themselves and on behalf of other Members of Ovim Community of Isuikwuato L.G.A)-Respondent

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ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Abia State High Court in Suit No. HS/01/05, delivered on 17/10/2011 by Hon. Justice Obisike Oji, wherein the learned trial Judge struck out the claims of the Plaintiffs (now Appellants) and also struck out the Counter-claim by the Defendants (now Respondents and Cross Appellants).
The claims of the Plaintiffs at the trial Court was for:
(a) A declaration that the portion of land where the Post Office, Mission Hill (Methodist Church Nigeria Diocese of Isuikwuato Headquarters), Girls Secondary (Model School), Saint Cyprian Anglican Church, Efik Quarters, Ibibio Quarters, Trinity Methodist Church, Yoruba Quarters and the Area where the Railway Station is located, moving further into the area where Amaba Daily Market is situate, belongs to the Amaba people of Isiala Isuamawu, Isiukwuato.
(b) A declaration that the invasion of the Plaintiffs land and vandalization of the Plaintiffs properties by the Defendants and other members of Ovim Community, on the 3rd day of May, 2004 amounts to trespass and consequently wrongful and illegal.
(c) Five Million Naira damages (N5,000,000.00) for trespass against the Defendants, jointly and severally for trespass committed on the Plaintiffs land.
(d) Special Damages in the sum of N801, 500. (Eight Hundred and One Thousand, Five Hundred Naira) being damages for the Plaintiffs properties on the 3rd day of May, 2004 as particularized in paragraph 43 of the Plaintiffs Statement of Claim.
(e) An Order of Perpetual injunction, restraining the Defendants, whether by themselves, their servants, agents or privies form further acts trespass on the Plaintiff’s land. See pages 1 – 9 of the Records of Appeal.

The Defendants Counter-Claimed, thus:
(a) A declaration that by refusing to abide by the terms of Customary tenancy between the Plaintiffs and the Defendants and by challenging the Defendants/overlords title, the Plaintiffs are guilty of misconduct and liable to an order of forfeiture in relation to all that parcel of land granted to the Plaintiffs verged black in the Defendants Survey Plan No. ASA/ABD4/2005, filed with the Statement of Defence/Counter-claim.

(b) An Order of forfeiture against the claimants in respect of the said land. See the Statement of Defence/Counter-claim on pages 163 -174 of the Records of Appeal.
After hearing the case, the trial Court held that the main Suit was academic because the actual persons in lawful occupation of the lands, were not joined and made parties to the Suit, and as such a declaration of title could not, in the circumstances, be made. And with regards to the Counter-claim, the trial Court refused to grant the relief sought, despite the judgment in Exhibit X  allegedly acknowledging the status of Plaintiffs as Customary tenants of Defendants.
On page 465 to 467 of the Records of Appeal, the Trial Court said:
As can be seen from a review of the evidence and address (sic) of Counsel this Suit has been long drawn and hotly contested, it involves land with established institutions or infrastructure and facilities on them. I have not seen the parties disagreeing on the features on the land. The features that are agreed to be on the land are Post Office, Methodist Church, Schools, Anglican  Church, Efik Quarters, Ibibio Quarters, Yoruba Quarters, Railway Station, Market. These are functional facilities and structures which the owners are enjoying.
A remarkable feature of this case in that both sides agree that those persons and institutions on the land in dispute are lawfully there. None of the parties is contending for instance, that the Methodist Church, are illegally on the land and should be thrown out. Instead, the parties have tumbled over themselves to demonstrate that these persons and institutions are not only occupying this land but are there by well documented legal documents. The Claimants have evidence and tendered documents to show that the Methodist Church is lawfully occupying where they are on the land; the Anglican Church are lawful occupiers; the Nigerian Railway Station is located where it is by proper legal instruments. The same with the Secondary School, Post Office, the Quarters etc.
Defendants have also led evidence and tendered documents to the same effect with each of these institutions and facilities. Yet the Claimants have brought this Suit praying me to declare them the owners of the

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land where these institutions and facilities are. The Defendants have come to Court to resist that, and to urge me to find instead that they are the owners. While all these are going on, these institutions and persons, who are lawfully on these lands and enjoying them, have not been made parties to the Suit. It may very well be said that the Nigeria Railways is in comatose; but it cannot be said to have died, for the living to be scrambling (over) her property. If Nigeria Railways is in comatose, that cannot be said of the Methodist Church nor of the Anglican Church or even the State Education Board. None of the parties have contended that any of these institutions or persons on the land has run foul of the terms of its title. Without deciding which of the parties has presented better document of title in this Suit, it is clear that none of the parties has brought any dispute against these institutions and persons on the land in dispute.
It does appear that the Suit of the Claimants here is academic
Turning to the Counter-claim of the Defendants, they are praying Court for the forfeiture order of the Court against the claimants. In the address of Counsel he 
referred in extenso to the judgment in Exhibit X and urged me to hold that the Claimants are in this Suit re-litigating issues decided on in that judgment. I must say that the defendants in their Counter-claim are guilty of the same misdemeanor.
In the judgment in Exhibit X, rightly or wrongly, the issue of customary tenancy of the Claimants, are raised. It was the Counter-claimants who were joined as parties in that Suit, that raised it. They cannot again be raising the same issue here.
I have looked at the other aspects of the reliefs of the Claimants the claim for damages for the property destroyed; the cross examination of PW2 revealed that the things said to have been destroyed are not communally owned property that can be litigated as presented here. They belong to individuals and associations that are not parties to this Suit. See pages 465 to 467 of the Records of Appeal.

That is the judgment Appellants appealed against, and the Respondents also cross appealed. Appellants Notice of Appeal is on pages 430 to 441 of the Records, while the Notice of Cross-Appeal was filed on 28/12/11, with the leave of this Court. (See the Additional Records of Appeal transmitted to this Court and regularized on 24/2/16).
Appellants filed their brief on 2/10/14 and distilled three (3) Issues for the determination of the Appeal, as follows:
(1) Whether the Appellants case before the trial Court was academic (Ground A).
(2) Whether the learned Trial Judge was right in granting ownership status to institutions and persons who were tenants, lessees and grantees on the portions of the disputed land and holding that the said institutions and persons ought to have been made parties in the Suit. (Grounds B, C & D).
(3) Whether it was appropriate for the learned Trial Judge not to have evaluated evidence led by the parties before the trial Court and make specific findings of facts thereon as it pertained to ownership of the portions of land in dispute. (Ground E).
The Respondents filed their Brief on 19/7/16, and in it, raised a preliminary objection, seeking to strike out the Appeal for incompetence. And for the main appeal, they distilled a lone Issue for the determination of the Appeal, namely:
Whether the Court below was rightly to have denied the Appellants the reliefs they sought in the Suit ??? (Grounds A, B, C, D & E).
(The Cross Appeal and the briefs thereof will be treated separately later).
When the appeal came up for hearing on 22/3/18, the Respondents Counsel told us that they raised the Preliminary Objection on pages 4 and 5 of the Respondents brief, but that did not canvass argument on it.
On page 5 of the Respondents brief, Counsel O.A. Obianwu Esq., SAN (who settled the brief) simply said that Grounds A, B, C and D (of the appeal) deal with the same complaint and tantamount to repetition, apart from being prolix, argumentative and narrative; that Grounds E and F deal with the same complaint, to wit, evaluation of evidence and making findings on the evidence, and are prolix, argumentative and narrative in nature; that the grounds ought to be struck out as well as the appeal.
Having stated, at the hearing of the appeal, that they did not canvass arguments on the preliminary objection, it appears even that little attempted argument on page 5 of the Brief was abandoned, as the Respondents did not pursue the

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said preliminary objection at the hearing of the appeal. The said preliminary objection is hereby struck out for being abandoned. See Agboroh Vs WAEC (2016) LPELR  40974 (CA); Registered Trustees of Airline Operators of Nigeria Vs Nigeria Airspace Management Agency (2014) LPELR  22372 (SC).

Arguing the appeal, Tude Akinrimisi Esq., who settled the brief for the Appellants, on Issue One, contended that the case was not an academic issue, and relied on the case of Agbakoba Vs INEC (2008) 18 NWLR (Pt.1119) 489 at 546 -547, where it was held:
An academic question is an issue which does not require answer or adjudication by the Court, because it is not necessary to the case. It is hypothetical or a moot question. An action becomes hypothetical or raises a mere academic point when there is no live matter in it to be adjudicated upon or when its determination hold no practical or tangible value for making a pronouncement upon it. It is otherwise an exercise in futility
Counsel said that, going by the Appellants pleadings and the evidence adduced by Appellants to prove their ownership by way of traditional history; and the fact that the Respondents had also pleaded and led evidence to contest the Appellant’s claims, and that there was evidence of constant and continuous bloody clashes over ownership of the land by the parties, the definition of academic question, as in the above cited case, would not fit into this case by the parties, as the claim before the Court, and questions therein, required some answers and the issue of ownership was not a moot question but live issues that required adjudication. He submitted that the question as to which of the parties owned the disputed portions of land the waring communities were contesting, remained an essential and fundamental question, and not merely an academic question. He argued that the trial Court was wrong to conclude that the disputed portions of the land belong to institutions and persons occupying them; he (Counsel) said that the said institutions and persons occupy their said portions as tenants, lessees or grantees, but not as owners.
Counsel said it is trite law that where a party does not have absolute ownership of land, and is tenant or lessee or where the grant is for a specific period of time, reversionary rights go back to the original owners and as such, by treating the occupier institutions or persons as owners, the trial Court had extinguished the reversionary rights of the owners. Counsel urged us to note that there was evidence that some of the institutions and persons, referred by the trial Court, had acknowledged, to be rent paying tenants to either one or both of the contending communities. He relied on Exhibit ZD, where he said, the Methodist Church conceded that they were paying rent to the Appellants, but stopped due to the crises between the parties and needed proper determination of the true owners of the land to enable them know who to continue to pay rent to.
Counsel relied on the case of Shettima Vs Goni (2011) 18 NWLR (Pt. 1279) 413 at 479, to say that the Supreme Court defined an academic Suit as one that is purely theoretical and of no practical utilitarian value to the Plaintiff, even if judgment is given in his favour, and where the Suit is not related to practical situation of human nature and humanity; he said that that was not the situation in this case.
On Issue 2, Counsel answered in the negative, and restated the arguments in Issue one, relating to his claim that the trial Court granted ownership of the land to the institutions and persons occupying the land, such as Methodist Church, Amaba Daily Market, Methodist Girls Secondary School, Ovim Post Office, Railway Station, Ovim Girls Secondary School. Counsel said the above institutions were merely used to define the scope (area spread) of the Appellants land, but the trial Court misconstrued the same. He argued that Appellants land even went beyond where the above institutions occupy and that there was evidence that some of the institutions, like Methodist Church, Anglican Church and the Girls Secondary School, were aware of the competing claims of the parties over the disputed land; that the said institutions did not contest ownership of the said land.
He argued further that the said Institutions and persons did not need to be joined as parties in the Suit; that they were not necessary parties to the Suit; that neither the Appellant’s claims nor Respondents Counter-claim had any direct bearing on them (Institutions) in respect of their respective

………………..D………………..

tenancies, leases or grants and the said institutions were not contesting original ownership of the land against either of the parties. Counsel relied on the case of Green Vs Green (1987) NWLR (Pt. 61) 480 and Yusuf Vs Adeyemi (2009) 15 NWLR (Pt. 616) on who is a necessary party that such a party would be bound by the result of the action and there must be a question which cannot be effectively and completely settled unless such a person is a party.
On Issue 3, on how the trial Court evaluated the evidence, and whether it failed to make specific findings of fact as pertained to ownership of the portions of land, Counsel referred us to many cases on what evaluation of evidence connote, and the duty of the trial Court to evaluate such evidence. See Eze Vs Okoloagu (2010) 3 NWLR (Pt. 1180) 183; Ameyo Vs Oyewole (2009) 8 NWLR (Pt. 1142) 1; Oyadiji Vs Olaniyi (2005) NWLR (Pt. 919) 561.

Counsel said that the trial Court, in this case, reproduced and summarized the evidence adduced by the witnesses but failed to place the evidence of the parties on the imaginary scale of justice, to determine where the pendulum tilted. He relied on Lamurde Local Govt Vs Karka (2010) 10 NWLR (Pt.1203) 574; Oduwole Vs Aina (2001) 17 NWLR (Pt.741) 1 at 45.

He, again, submitted that the trial Court was wrong in his findings, to attribute ownership of the land to the Institution and person that occupied them, not to parties to the Suit; that the trial Court therefore misapplied the case of Jinadu Vs Esurombi (2009) 4 – 5 SC (Pt. 2) 65.
He urged us to resolve the issues for Appellants.
The Respondents Counsel, O.A. Obianwu Esq., SAN, arguing the lone Issue, referred us to the reliefs sought by Appellants – Declaration of title to the lands in dispute, special and general damages and injunction. Counsel said Appellants complaint in this appeal relate only to the refusal of the trial Court to make the declaration of title, sought. Counsel said that the trial Court was right to refuse to grant the declaration sought by the Appellants; that as the trial Court rightly observed, both parties had claimed to have been responsible for the presence of the institutions and facilities on the land in dispute, but the said institutions and persons, which are legal personalities, were however not joined and made parties to the Suit; that it cannot be seriously disputed, that any pronouncement of the Court on the question of ownership of the portions of the land, which they were occupying, would have directly affected them. Counsel agreed that the Court could not therefore, in the absence of the said Institutions and persons occupying the land, make a decision which would prejudice them. He relied on the case of Ngwu Vs Onuigbo (1999) 13 NWLR (Pt. 636) Pt. 525 – 526. Counsel said the Churches, Schools, Railways and other Institutions, which had built up the areas they were occupying in the land, cannot be said not to be necessary parties to the Suit, in the light of the reasoning in the above case of Ngwu Vs Onuigbo (supra).

Counsel also relied on Okwu Vs Umeh (2016) 4 NWLR (Pt. 1501) 120, where it was held:
A Plaintiff is not bound to sue a particular party. However, where the outcome of the Suit will affect that party one way or the other, it will be foolhardy not to join him in the Suit. In fact it would amount to an exercise in futility as the said party will not be bound by the outcome of the case.

Counsel added that, that was what the trial Court in this case also said. He argued that it can be seen that the relief sought by Appellants, to the effect that the named portions of land belong to the Amaba people of Isiala Isuamawu Isuikwuato, was most misconceived; he said that they did not seek a declaration of entitlement to statutory or customary certificate of occupancy in respect of the lands in issue, which is the only relief a Court is permitted to make in the light of the Land Use Act; that Appellants prayed the Court, seeking ownership, oblivious of the position of the law in the case of R.O. Nkwocha Vs Gov. of Anambra State (1984) 6 SC Pt.326 that
The tenor of the act as a simple piece of legislation is the nationalization of all lands in the country by the vesting of its ownership in the state, leaving the private individual with an interest in land which is mere right of occupancy.

Counsel further said that Appellants arguments were misdirected, he said that it was not a question of granting ownership status to institutions and persons in physical occupation of the disputed land, as the Court never granted

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any relief in favour of the institutions and persons in occupation in its judgment; that the Court only reacted to the evidence placed before it by both sides. Counsel said Appellants argument predicated on their alleged reversionary interest was also misconceived, as Appellant did not plead that they were bringing the action on the basis of their reversionary interest! He said that a party must be consistent in stating his case, and cannot pursue a different case on appeal. Counsel relied on Ngwu Vs Onuigbo (1999) 13 NWLR (Pt. 636) 512; Akuneziri Vs Okenwa (2000) 15 NWLR (Pt. 691) 526.

He urged us to resolve the issue against Appellants and dismiss the appeal.
RESOLUTION OF THE ISSUES
I think the lone Issue distilled by the Respondents Counsel aptly summarized the three Issues by the Appellants, and I adopt the same to determine this appeal, with some modifications.
Was the trial Court right to refuse the Appellants reliefs sought in the Suit, in the light of the evidence adduced?”

As the learned Senior Counsel for the Respondents’ rightly argued, I think the learned Counsel for Appellants greatly misconstrued the decision of the trial Court when it held on pages 465 to 466 as follows:
As can be seen from a review of the evidence and address (sic) of Counsel this Suit has been long drawn and hotly contested, it involves land with established institutions or infrastructure and facilities on them. I have not seen the parties disagreeing on the features on the land. The features that are agreed to be on the land are Post Office, Methodist Church, Schools, Anglican Church, Efik Quarters, Ibibio Quarters, Yoruba Quarters, Railway Station, Market. These are functional facilities and structures which the owners are enjoying.
A remarkable feature of this case in that both sides agree that those persons and institutions on the land in dispute are lawfully there. None of the parties is contending for instance, that the Methodist Church, are illegally on the land and should be thrown out. Instead, the parties have tumbled over themselves to demonstrate that these persons and institutions are not only occupying this land but are there by well documented legal documents. The Claimants have evidence and tendered documents to show that the Methodist Church is lawfully occupying where they are on the land; the Anglican Church are Lawfully occupiers; the Nigerian Railway Station is located where it is by proper legal instruments. The same with the Secondary School, Post Office, the Quarters etc.
Defendants have also led evidence and tendered documents to the same effect with each of these institutions and facilities. Yet the Claimants have brought this Suit praying me to declare them the owners of the land where these institutions and facilities are. The Defendants have come to Court to resist that and to urge me to find instead that they are the owners. While all these are going, these institutions and persons who are lawful on these lands and enjoying them have not been made parties to the Suit. It may very well be said that the Nigeria Railways is in comatose, but it cannot be said to have died, for the living to be scrambling (over) her property. If Nigeria Railways is in comatose that cannot be said of the Methodist Church nor of the Anglican Church or even the State Education Board. None of the parties have contended that any of these institutions or persons on the land has run foul of the terms of its title.

Without deciding which of the parties has presented better document of title in this Suit, it is clear that none of the parties has brought any dispute against these institutions and persons on the land in dispute.
It does appear that the Suit of the Claimants here is academic
There is nothing in the above decision to suggest that the trial Court granted the said institutions and persons, in lawful occupation of the land ownership of the portions of the land in dispute at the expense of any of the parties in this case. The trial Court merely stated, and rightly, in my view, that having acknowledged the said Institutions and persons, including Methodist Church, Anglican Church, Nigeria Railways, Post Office, Schools, Market and various Quarters – Efik, Ibibio, Yoruba Quarters  as lawfully occupying their respective portions of the land, whereof they have developed, and built functional structures and facilities, which they were/are enjoying, the Appellants (or parties by extension) cannot bring this action seeking:
A declaration that the portions of land where Post Office, Mission Hill (Methodist Church, Nigeria

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Diocese of Isuikwuato Headquarters), Girls Secondary School (Model School), Saint Cyprian Anglican Church, Efik Quarters, Ibibio Quarters, Trinity Methodist Church, Yoruba Quarters, and the area where the Railway Station is located, moving further into the area where the Amaba Daily Market is situate belongs to (them) the Amaba people of Isiala Isuamawu, Isuikwuato.
Thus, having acknowledged that the various institutions and persons were/are lawfully occupying their said portions, Appellants cannot lawfully seek an order to declare them (Appellants) owners of such portions of land, without joining the said Institutions and Persons as parties to the Suit, as making such order(s) would certainly affect the proprietary or possessionary or occupationary interests of the said Institutions/Parties!
That, I think, is an elementary principle of law, which Appellants Counsel is expected to know, and if he did not know, should be thankful to the trial Judge for calling his attention to this fact/law, and the Court being kind/mild enough to just strike out the claims of Appellants (instead of dismissing it), after taking evidence.
There are myriads of decided authorities on the need to join necessary parties to an action, to enable the Court to effectively and finally determine the rights of the parties in the Suit. And where a Suit cannot be effectively disposed of, without a given party, who stands to be affected by the orders of the Court, or whose joinder or presence/evidence is needed to vest jurisdiction on the Court to pronounce on the matter, the Court would be wasting its precious judicial time to entertain the same. See the case of Green Vs Green (1987) 3 NWLR (Pt. 61) 480; Ngwu Vs Onuigbo (1999) 13 NWLR (Pt. 636) 526. See also Okwu Vs Umeh (2016) 4 NWLR (Pt. 1501) 120, where it was held:
A Plaintiff is not bound to sue a particular party. However, where the outcome of the Suit will affect that party one way or the other, it will be foolhardy not to join him in the Suit. In fact, it would amount to an exercise in futility as the said party will not be bound by the outcome of the case.
The Supreme Court re-stated who is a necessary party in the case of Poroye & Ors Vs Makarfi & Ors (2017) LPELR  42738 SC, when it said:
It is settled law that a necessary party is a person whose presence in an action is essential for the effectual and complete determination of the claim before the Court. See Re. Yesufu Faleki (Mogaji) 1986 2 SC 431 at 499; (1986) 1 NWLR (Pt. 19) 759; Ige Vs Farinde (1994) 7 -8 SCNJ 284.”
It is easy, in my opinion, to see and understand how hearing and pronouncing on this Suit, meant to establish the ownership of the Appellants over portions and parcels of land, which land is in effective occupation of third parties, (as stated by the Appellants), but not made parties to the Suit, would amount to exercise in futility, and as such an academic exercise, that would not bring any benefit to the parties, as the same cannot be enforced against the said 3rd parties, if pronounced. It would of course enure no benefit to the Claimants, in the circumstances. In the case of Agbakoba Vs INEC & Ors (2008) 18 NWLR (Pt. 1119) 489, relied upon by the Appellants, the Supreme Court stated when a Suit amounts to academic question:An academic question is an issue which does not require answer or adjudication by the Court, because it is not necessary to the case.
It is a hypothetical or a moot question. An action becomes hypothetical or raises a mere academic point where there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it.
It is strange, in my view, that the Institutions and Persons (3rd Parties) which are occupying the property and are presented by Appellants to be enjoying the property, are not those complaining against the Respondents (or any party) for trespass and seeking reliefs thereon, but Appellants are those asserting rights over the lands they (3rd Parties) occupy, lawfully! I do not think Appellants have the locus standi to bring the action, or that such action requires any adjudication, as the trial Court right held.
In the case of Dibiagwu Vs Uzonwanne & Ors (2017) LPELR  43074 CA, this Court said:
A Case or Appeal is said to be an academic exercise, when it would bring no benefit to any party, except, perhaps, the sensual/mental satisfaction to the party who brought it, where there is no live issue in the litigation/Claim; that is, where what is presented to the

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Court for a decision (and if decided) cannot affect the parties thereto in anyway, either because the fundamental nature of the reliefs sought has changed or there is a changed circumstance, since after the litigation, such that in the end, the case or the appeal has become academic at the time it is due for hearing. See Labour Party Vs Bello & Ors (2016) LPELR 40848 CA; Eric Uchegbu & Anor. Vs Pastor Mgbeahuroike & Ors(2017) LPELR 41683 CA; A.G. Federation Vs ANPP (2004) LRCN 2671; Odedo Vs INEC (2008) 17 NWLR (Pt.1117) 554.”
In an era where by the operation of law (the Land Use Act, 1978), which has been incorporated in the 1999 Constitution, as amended, land in each State is vested in the Governor of the State, it sounds self defeating for a party to bring a Suit, seeking declaration of ownership of land (in effective and lawful occupation of a 3rd Party) to himself, without any recourse to who is entitled to the Statutory or Customary right of occupancy over the land. In the case of Nkwocha Vs Gov. Anambra State (1984) 6 SC 326; (1984) LPELR  2052 (SC), the Supreme Court said:
The tenor of the Act (Land Use Act) as a simple piece of legislation is the nationalization of all lands in the country by the vesting of its ownership in the State, leaving the private individual with an interest in the land which is a mere right of occupancy.
I think the Suit was a misadventure and ill-advised. I resolve the Issue against the Appellants and hold that the appeal lacks merit. I dismiss it with cost, assessed at Fifty Thousand Naira, in favour of the Respondents.
CROSS APPEAL
The Cross Appellants filed their brief on 19/3/18, and distilled two (2) Issues for determination of the Cross Appeal, namely:
(1) Whether the Court below was right to strike out the Counter-Claim of the Cross-Appellants. (Ground F (sic) of the Cross Appeal).
(2) Whether the Court below was right not to have dismissed the Appellants Suit Grounds 2, 3 and 4 of the Cross Appeal.

The Cross-Respondents filed their Cross Respondents brief on 20/3/18, and appeared to have adopted the Issues as distilled by the Cross-Appellants, for the determination of the Appeal.
The Cross-Appellants filed a Reply to the Cross-Respondents brief.
Arguing the Cross-Appeal, Learned Senior Counsel, O.A. Obianwu S.A.N. (who settled the Cross-Appeal) on Issue one, (which derived from the ground one of the Cross Appeal, not ground F) simply exchanged position with the Appellants Counsel as regards the argument of the main appeal, with regards to the reasons for the decision to strike out the Suit.
He referred us to the Counter-claim, which sought:
(1) A declaration that by refusing to abide by the terms of the Customary tenancy between the Plaintiffs and the Defendants, and by challenging the Defendants/overlords title, the Plaintiffs are guilty of misconduct and liable to an order of forfeiture in relation to all that parcel of land granted to the Plaintiffs, verged black in the Defendants Survey Plan No. ASA/ABD4/2005, filed along with this Statement of Defence/Counter-claim.
(2) An order of forfeiture against the Plaintiffs in respect of the said land.
Counsel referred us to the evidence they led to prove the said customary tenancy, on pages 258 to 259 and 269 to 270 of the Records of Appeal, as well as Exhibit X (the judgment of the High Court in Suit No. HO/49/83). Counsel said the evidence led by them at the trial Court on the point was not challenged by the Appellant and so the trial Court was wrong to hold that they (Cross Appellants) were guilty of the same misdemeanor as the opponents (Cross Respondents), and struck out the Counter-claim; Counsel said that was a travesty of justice as the customary tenancy was established by Exhibit X.
Unfortunately, the Cross Respondents arguments on this Issue, appears to confuse it with a Reply Brief, or a resort to further argue the main appeal, as the Cross-Respondents rather reargued the main appeal on pages 2 to 5 of their Respondent’s Brief to Cross Appellants Brief of Argument, wherein he re-argued that the trial Court was wrong to strike out Appellants claim, because of the failure to join the institutions and facilities on the land, as parties, whereas they (Appellants) had proved that the Institutions and persons where their (Appellants) tenants on the land!
I think the failure of the Cross Respondents to challenge that issue notwithstanding the Cross Appellants cannot argue

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against the decision of the trial Court, striking out their Counter-claim (just as it did the main claim) for the same reason the trial Court gave, namely that:
Both from the claimants and defendants, there is evidence here that the ownership of the land in dispute is in persons who are not parties to this Suit. Turning to the Counter-claim of the defendants, they are praying Court for the forfeiture order of the Court against the Claimants I must say that the defendants in their Counter-claim are guilty of the same misdemeanor. In the judgment in Exhibit X, rightly or wrongly, the issue of Customary tenancy of the Claimants was raised. It was the Counter-claimants, who were joined as parties in that Suit that raised it. They cannot again be raising the same issue here.See page 467 of the Records).
Of course, Cross Appellants Counsel had defended that decision of the trial Court in the main appeal, that striking out the main appeal was proper, for the reasons given, that the Institutions and Persons on the land, lawfully enjoying occupation of the land were not joined as parties, and so the Court cannot take the case and make orders that will bind them – Institutions and Persons not joined as parties.
In paragraphs 5.5 to 5.8 (page 6) of the Respondents Brief filed on 19/7/2016, the Learned Senior Counsel for the Respondents had argued:
The reasoning of the trial Court in relation to the claim of ownership of the portions of the land in dispute can be seen from pages 425 line 25 -428 line 4 of the Records. It is respectfully submitted that the conclusion of the Court that in the circumstances of the case it was not possible to grant a declaration of title in the Appellants favour, is correct. As rightly observed by the trial Court, both parties claimed to have been responsible for the presence of the institutions and facilities on the land in dispute. The institutions and facilities which were legal personalities were, however, not made parties to the Suit. It cannot be seriously disputed that any pronouncement on the question of ownership of the portions of land, which they were occupying, would have directly affected them. The Court could not therefore, in their absence, take a decision which might prejudicially affect them, one way or the other.
I think above arguments, rightly made by Learned Senior Counsel, in the same case/Appeal, placed a moral burden on him to stick to the truth/law on the issue. He cannot be allowed to prevaricate, to approbate and reprobate, to suit his dangerous conflict positions in the same case. See the case of Nyako Vs Adamawa State House of Assembly & Ors (2016) LPELR 41822 SC, where the Supreme Court held that Counsel cannot blow hot and cold, at the same time, or approbate and reprobate on the same issue just as one cannot eat his cake and have it. See also Suberu Vs State (2010) LPELR 3120 SC; (2010) 8 NWLR (Pt. 1197) 586; Olubeko Vs Awolaja & Anor (2017) 41854 CA.

Thus, the Counter-claim by the Cross Appellants, could not be resolved on the merits, and stood to be struck out, too because of the same circumstances and reasons given by the trial Court, and accepted by the Respondents Counsel for the striking out of the main Suit. I therefore resolve this issue against the Cross Appellants.
Was the trial Court right in striking out the Appellants claim, instead of dismissing it?
The Cross-Appellants had answered the 2nd Issue in the Cross-Appeal in the negative, saying the trial Court erred in striking out the Suit, rather than dismissing the same. He argued that Appellants had sought to rely on devolution of the property, by customary inheritance, or simply put, by traditional history; that they failed to establish their case by that method and so the case should have been dismissed; that it is settled law that where the line of succession is not satisfactorily traced, the claim must fail. He relied on many decided authorities, including Ishie Vs Mowanso & Anor. (2001) FWLR (pt. 43) 338; Chukwu Vs Nnaji (1990) 6 NWLR (Pt. 156) 363; Eze Vs Atasie (2000) 10 NWLR (Pt. 675) 479; Mogaji Vs Cadbury (1985) 2 NWLR (Pt. 7) 393.
Counsel also stated that the Statement of Claim, on which Appellants grounded their claim, did not satisfy the legal requirements of pleading the:
(1) Founding of the land;
(2) The name and history of the founder;
(3) Names, particulars and histories of the persons through when (sic) the land devolved before getting to the claimants.

He argued that on the pleadings alone, the case of the Appellants had broken down, and ought to have been dismissed.

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The Cross Respondents again in my view, also failed to address this issue in their 2nd Issue and rather argued whether the Court below was right to strike out the Counter-claim of the Cross-Appellants, which he answered in the negative, saying the trial Court ought to have dismissed the Respondents/Cross Appellants Counter-claim, instead of striking same out.

Of course, the Cross Appellants 2nd Issue, rather focused on Appellants Claim, not on the Counter-claim that the trial Court should have dismissed the Appellants claim and not striking it out.
The Cross Respondents had answered the Issue in the affirmative whether the lower Court was right not to have dismissed the Appellants case.
He argued as follows:
The Trial Court struck out the Appellants case, despite reviewing evidence led at the trial, specifically upon the fact that the trial Court held that the Appellants case was an academic exercise due to the failure of the Appellants to join institutions/facilities as parties to the Suit.
The trial Court did not find that the Appellants case was proved or not proved, as the trial Court did not arrive at a finding in relation thereto, but struck out the Appellants case on other grounds than that relating to proof of ownership.
Consequently, I humbly submit that it would have amounted to injustice to have dismissed the Appellants case under the circumstances, particularly as the Appellants case was struck out on technical grounds See paragraphs 3.7, 3.8 and 3.9 of the Cross Respondents Brief.

The above submission in my opinion, represents the correct state of the facts and the law, in this appeal and Cross appeal. I think the Cross-Appellants were merely acting, or grandstanding on the issue, having already acknowledged that the reasons or reasoning of the trial Court for striking out the Suit had to do with failure to join occupiers of the land, acknowledged by both sides, as enjoying lawful occupation of the land(s) in dispute. The Lower Court’s decision was therefore not founded on the merits of the case, and so could not have been an order of dismissal.
The law is trite that where a case is not heard and determined on the merits, the appropriate order to make is to strike it out, if it cannot be determined on the merits. See Kayode & Ors Vs Abdulfatai & Ors (2012) LPELR 7874 CA; Alsthom S.A. Vs Saraki (2005) 3 NWLR (Pt. 911) 208; Ogwuowere & Ors Vs Udeh & Ors (2016) LPELR 41028 (CA).
It is rather surprising to note that, by arguments of Counsel on both sides, they would have preferred the dismissal of their claims and Counter-claims by the trial Court, which obviously would have ultimately worked hardship and injuries on them in the circumstances. Counsel should always avoid grandstanding on issues, and rather act to protect the overall interests of their clients and uphold the tenets of the Court and justice.
I see no merit in the Cross-Appeal and hereby dismiss it with Fifty Thousand Naira (N50,000.00) against the Cross-Appellants, payable to the Cross-Respondents.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, Justice Ita George Mbaba, JCA. I am in complete agreement with the reasoning and conclusions reached therein. I also agree with the orders made in respect thereof, inclusive of the order made in connection with costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother ITA G. MBABA JCA. I agree entirely with the reasoning and conclusion therein.
I just have the following by way of addition.
It is trite law that proper parties must be before a Court for a Court to have competence and jurisdiction to determine a matter. See COTECNA INTERNATIONAL LTD v. CHURCH GATE NIG LTD ANOR (2010) 18 NWLR PT. 1225 p. 346 where Adekeye J.S.C. had this to say on this point:
“It is trite law that for a Court to be competent and have jurisdiction over a matter, proper parties must be identified. Before an action can succeed, the parties to it must be shown to proper parties to whom rights and obligation arising from the cause of action attach. The question of proper parties is very important issue which would affect the jurisdiction of the Court as it goes to the foundation of the suit in limine. Where the proper parties are not before the Court, then the

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Court lacks the jurisdiction to hear the suit. BEST VISION CENTPE LTD v. UAC. NPC PLC (2003) 13 NWLR (PT. 838) PG. 594; IKENE v. ANAKWE (2000) 8 NWLR (PT. 669) p. 484; PEENOK LTD v. HOTEL PRESIDENTIAL (1983) 4 NCL 122; EHIDIMHEN v. MUSA (2000) 8 NWLR (PT. 669) p. 540.”
Of their own showing, the Plaintiffs in their claims claimed that the portion of land where Post Office Mission Hill (Methodist Church Nigeria Diocese of Isuikwuato Headquarters) Girls Secondary (Model School) Saint Cyprian Anglican Church, Efik Quarters Ibibio Quarter, Trinity Methodist Church Yoruba Quarters and the Area where the Railway Station was located belonged to them yet Methodist Church Nigeria, Anglican Church members of Ibibio Quarters Yoruba Quarters, Efik Quarters who definitely would be affected were not joined as parties. The presence of all these was necessary for the just determination of this case. Indeed they are necessary parties. See GREEN v. GREEN (1987) 3 NWLR PT. 61 p. 480. Failure to join necessary parties in an action vitiates such action. It renders it incompetent. See HON. JUSTICE F. O. AYOOLA (NEE AKANBI) v. ALHAJI B. A. BARUWA ORS (1999) 11 NWLR (PT. 628) 595; OKONTA v. PHILIPS (2010) 15 NWLR (PT. 1225) 320.

The same virus of incompetence also infected the cross-appeal.
I agree the lower Court lacked jurisdiction to entertain the action and rightly struck out both the appeal and the cross-appeal.
The appeal and the cross-appeal lack merit. I abide by the order as to cost in the lead judgment.

Appearances

A.O. AKINRIMISI ESQ. with him, M.C. AGONUO (MISS.)-For Appellant

AND

O.A. OBIANWU ESQ. SAN with him, C.A. OBIANWU ESQ.-For Respondent

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