In The Court of Appeal of Nigeria
On Friday, the 22nd day of June, 2018
Before Their Lordships
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
1. BARR. BENEDICT ASABORO
2. ANTHONY OSORO
3. MAMA EDESHAREAME UGBARUGBA –Appellants
1. EMMANUEL ARHE ERHUE
2. MR. ALFRED OMARE
3. PRINCE SAMUEL ADURE
4. MAMA OGHENE KPAROBO OVEDJE
(For themselves and on behalf of the entire Abovwe Family of Otovwodo-Ughelli)
5. SETRACO NIGERIA LIMITED –Respondents
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellants and the 5th respondent in this Court were the defendants in Suit No. UHC/116/2006 instituted by the 1st – 4th respondents in the High Court of Delta State, Ughelli Judicial Division, holden at Ughelli. In the said suit, the 1st – 4th respondents, as plaintiffs, claimed in paragraph 37 of their further amended statement of claim as follows:
(a) A declaration that the 1st – 4th defendants not being members of Abovwe Family of Otovwodo-Ughelli have trespassed on plaintiffs family land lying and situate along Agbara-Ughelli road known as Akpuvunagha Bush by digging trenches on it preparatory to digging a burrow pit.
(b) An order of perpetual injunction restraining the defendants by themselves, their servants, agents and/or privies from further interfering with the plaintiffs family right over the said land described in relief 1 above, further trespassing on same and/or meddling in any way whatsoever inimical to or adverse to the plaintiffs’ family right to the property described in Relief 1, to wit digging, excavating and converting the land to a borrow pit.
(c) The sum of eight million naira (N8,000,000.00) being damages for the unlawful and illegal interference and/or trespass of the defendants jointly and/or severally on the plaintiffs family land described in Relief 1 above without the consent and authority of plaintiffs family.
(d) An order setting aside the purported sale of the land in dispute to the 2nd defendant by one Chief Thomas Osidje and/or any other person as same was done without the consent and authority of the Head and the principal members of the Abovwe family.
The appellants filed a joint statement of defence, while the 5th respondent filed a separate statement of defence. The appellants and the 5th respondent separately denied the claims of the 1st – 4th respondents and urged the trial Court to dismiss them. After hearing the parties and their witnesses; and after the addresses of learned counsel on behalf of the contending parties, the trial Court delivered a reserved judgment on 02/02/2015 wherein it entered judgment in favour of the 1st – 4th respondents as follows:
(1) The purported sale of a second piece of land measuring 25 acres of land in Akpuvunagha bush (land in dispute) to the 2nd Defendant herein is hereby set aside.
(2) The Defendants by themselves, servants, agents and or privies are restrained from trespassing on the said land in dispute.
(3)I award costs of N40,000 in favour of the Plaintiffs against 1st to 3rd Defendant(sic) who postulated the void sale to 2nd Defendant.
Being dissatisfied with the part of the judgment relating to the grant of the 1st – 4th respondents reliefs (b) and (d), the appellants on 22/04/2015 filed a notice of appeal containing 9 (nine) grounds.
In the appellant’s brief filed on 08/06/2017 and settled by Albert Akpomudje, Esq. (SAN), three issues have been formulated for determination as follows:
1. Whether the trial Court ought to have dismissed relief 37(b) upon the dismissal of relief 37(a) the principal relief upon which the other reliefs are dependent? Grounds 1, 2, 8.
2. Whether the Honourable Trial Court having failed to properly evaluate the evidence in line with the wordings of relief 37(d) ought to have dismissed relief 37(d) as not proved? Grounds 3, 4, 5, 7 & 9.
3. Whether the Honourable Court had the jurisdiction to hear and determine the suit in the absence of necessary parties before the Honourable Court and whether the trial Court has jurisdiction to grant reliefs against parties who are not privy to the transaction in relief 37(d) of the 1st set of respondents claim? Ground 6.
B.O. Ubioworo, Esq settled the 1st -4th respondents brief, which was filed on 18/08/2017 but deemed as properly filed on 16/01/2018. The 1st-4th respondents also formulated three issues for determination but framed them thus:
1. Whether the appellants discharged the burden of proof imposed on them by law to prove that 2nd appellant validly purchased the land in dispute.
2. Whether the trial Court had the jurisdiction to hear and determine the suit in the absence of Chief Thomas Osidje, Bosha Ighoyivwi & Adogbeji Akpojiyovwi and to grant reliefs against them.
3. Whether the trial Court ought to have dismissed relief 37(b) upon the dismissal of relief 37(a).
The 5th respondent filed its brief on 06/07/2017. The 5th respondent’s brief was settled by A.O. Whisky, Esq. who distilled the following two issues for determination:
(i) Whether the 5th respondent could have trespassed on the land in dispute, having vehemently denied knowing neither the appellants nor the 1st set of respondents.
(ii) Whether the person purportedly alleged as members of staff of the 5th respondent were acting within the scope of their authority.
The two issues identified and framed by the 5th respondent do not arise or flow from any of the appellants grounds of appeal and they are liable to be stuck out. The law is settled that an issue formulated for determination, in an appellate Court, must arise from the appellants grounds of appeal. See Attorney General, Bendel State & 2 Ors. v. P.L.A. Aideyan (1989) 4 NWLR (PT.118) 646; State v. Dr. Olu Onagoruwa (1992) 2 NWLR (PT.221) 33; Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (PT.1236) 175; Dr. Roy Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (PT.1597) 218 and Hon. (Mrs.) Dorathy Mato v. Hon. Iorwase Herman Hember & 2 ORS (2018) 5 NWLR (PT.1612) 258 at 281 per Onnoghen, CJN, where the Supreme Court recently restated the principle of law as follows:
………issues for determination must be formulated from the grounds of appeal. They must be based on, related to or arise from the grounds of appeal.
In the case of Baliol Nigeria Ltd. v. Navcon Nigeria Ltd. (2010) 16 NWLR (Pt.1220) 619 at 627 per Ogbuagu, JSC; the Supreme Court categorically stated as follows:It is now firmly settled in a plethora of decided authorities by this Court that any issue or issues which is or are not formulated from a ground of appeal, is incompetent and must be ignored or discountenanced and struck out. See the cases of MANAGEMENT ENTERPRISES V. OTUSANYA (1987)2 NWLR (Pt.55) 179; (1987) 4 SCNJ 110 and ALLI & Anor. v. CHIEF ALESINLOYE & ORS. (2000) 6 NWLR (Pt. 660) 177 at 212; (2000) 4 SCNJ 264. In other words, the Court lacks the power to deal with an issue or issues not formulated or distilled from any ground of appeal. See the cases of KRAUS THOMPSON ORGANISATION LTD. v. UNIVERSITY OF CALABAR (2004) 4 SCNJ 101 at 133; (2004) 9 NWLR (Pt.879) 631 and MOJEKWU V. MRS. IWUCHUKWU (2004) 4 SCNJ 180; (2004) 11 NWLR (Pt.883) 196.”
Without further ado, therefore, the two issues formulated by the 5th respondent are hereby struck out for being incompetent, since they neither relate to nor arise from the appellants grounds of appeal.
To determine this appeal, I adopt the issues as formulated by the learned senior counsel for the appellants, because his issues are properly tied to the grounds of appeal. Issue 3 will be treated first and, thereafter, Issues 1 and 2 will be taken together.
ISSUE NO. 3
Whether the Honourable Court had the jurisdiction to hear and determine the suit in the absence of necessary parties before the Honourable Court and whether the trial Court has jurisdiction to grant reliefs against parties who are not privy to the transaction in relief 37(d) of the 1st set of respondents’ claim?
Learned senior counsel referred to the averments in paragraphs 1 and 35 of the 1st – 4th respondents further amended statement of claim and the evidence of PW1 one Stephen Adegole Were Dafese and the 1st respondent (the 1st plaintiff) Emmanuel Arhe Erhue and contended that the case put forward by the 1st – 4th respondents was that they sought to set aside the sale of land allegedly made during the tenure of Chief Thomas Osidje, Bosha Ighoyivwi and Adogbeji Akpojiyovwi (principal members of Abovwe family) who were alive at the time the action was filed but were not made parties to the suit. Learned senior counsel argued that the 1st 4th respondents identified and excluded themselves from the real persons who sold the land in dispute but decided to pursue their case against persons who they described as complete strangers to the Abovwe family. He then stated as follows:
The big question is why subject to the uphill task of proving who and how the land in dispute was sold when the perpetrators are within the knowledge of the 1st set of respondents as plaintiff right from the onset of the case. The ground upon which the 1st respondent sought to set aside the alleged sale of the land in dispute was that it was done by Chief Osidje and his associates without the consent of the head and principal members of the Abovwe family.
Coincidentally the reason why the trial Court granted relief 37(d) was because the appellants as strangers to the Abovwe family were not able to show how the Abovwe family interest was effectively divested to them since they could not tell who was the family head as at the time they bought the land and whether Chief Thomas Osidje and company acted with the mandate and authority of the Abovwe family head. So to pose the relevant question, which the trial Court did not avert his mind to: who is in a better position to assist the Court in determining who and how the sale of the land in dispute was conducted, is it the members of the Abovwe family who conducted the sale and who know the genealogy of the Abovwe family; or complete strangers as the appellants who know little or nothing about the Abovwe family, except that they know quite well that the land was sold by the Principal members and representatives of the Abovwe family? The answer to this question clearly shows that Chief Thomas Osidje, Bosha Ighoyivwi, and Adogbeji Akpojiyovwi and company are necessary parties which the 1st set of respondents ought to have made parties in their case for the just determination of same.
Learned senior counsel contended that Chief Thomas Osidje, Bosha Ighoyivwi, and Adogbeji Akpojiyovwi and Company are necessary parties who the Honourable Court ought to have made parties in the case and without whose presence the Honourable Court could not have reached a just determination of the case one way or the other. In support of this contention, he relied on the case of Ekpere & Ors. v. Aforije & Ors. (1972) ALL NLR 224 at 229 and 231 232, per LEWIS, JSC. The learned Senior Advocate of Nigeria (SAN) further argued that without the presence of the said Chief Thomas Osidje, Bosha Ighoyivwi, Adogbeji Akpojiyovwi, and other unnamed persons who were not joined, granting relief 37(d) as it was done by the trial Court is a verdict against Chief Thomas Osidje and others who are not parties to the suit and that their nonjoinder robs the Court of jurisdiction to determine the suit.
After referring to the case of Nangibo V. Okafor (2003) 14 NWLR (Pt. 839) 78 at 105, per Onu, JSC, learned senior counsel for the appellants submitted that the parties to an agreement for sale of law (sic) must be made parties in a suit seeking to set same aside.
In finally urging the Court to resolve this issue in favour of the appellants, learned senior counsel submitted that:
Assuming but without conceding that Chief Thomas Osidje, Bosha Ighoyivwi, and Adogbeji Akpojiyovwi and company are not necessary parties to the set (sic) and their presence as parties did not affect the ought (sic) come of the suit, we submit that the Honourable Court ought to have dismissed relief 37(d) of the claim against the 1st and 3rd appellants and the 2nd set of respondent since they were not parties to the alleged sale which the 1st set of respondents sought to set aside.
It should be noted that the learned counsel for the 1st – 4th respondents argued this issue under their issue No. 2 and submitted that the failure to join the trio of Chief Thomas Osidje, Bosha Ighoyivwi & Adogbeji Akpojiyovwi will not vitiate the suit or deprive the Court of jurisdiction as alleged by the appellants. To support this submission, learned counsel referred to the cases of Iyere v. Bendel Feed & Flour Mill (2008) 7-12 SC 151 at 179 and Anyanwoko V. Okoye (2010) 1 SC (Pt.2) 30 at 46.
Learned counsel for the 1st – 4th respondents relied on the cases of Iyere v. Bendel Feed & Flour Mill (supra) and Sapo v. Sunmonu (2010) 3-5 SC (Pt.2) 130 and argued that a party is at liberty to pick and choose whom he wants to sue in a situation where there are numerous tort-feasors.
On the meaning of a necessary party and how to determine who is a necessary party, learned counsel referred the Court to the cases of Okonta v. Philips (2010) 7-12 SC 173 and Carrena v. Arowolo (2008) 6-7 SC (Pt.1)66. Learned counsel then argued stated and contended as follows:
……it is pertinent to draw the Court’s attention to the fact that for the 9 years which this suit lasted in the lower Court, the defendants/appellants never raised the issue of jurisdiction in the lower Court, neither did they bring any application for the trio of Chief Thomas Osidje, Bosha Ighoyivwi & Adogbeji Akpojiyovwi to be joined as parties in the lower Court. Instead the defendants/appellants fielded Bosha Ighoyivwi as their hind witness i.e. DE3. The trio themselves also did not bring any application as interveners to be joined to the suit. We therefore urge my Lord to regard this issue of jurisdiction as an afterthought. Although it is trite law that the issue of jurisdiction can be raised at any stage, even on appeal, the law also requires the party to act timeously by seeking to be joined. We refer to the case of YARADUA & 42 ORS. v. CONGRESS FOR PROGRESSIVE CHANGE(2011) 10 SC 7 at page 40.
In response to the appellants’ arguments with reference to the case of Nangibo v. Okafor & 4 Ors. (2003) 14 NWLR (Pt.839) 78, learned counsel for the 1st – 4th respondents submitted that the Abovwe family (on whose behalf the trio allegedly contracted), are the proper persons to bring an action to set aside same and this is what was done at the lower Court.
In paragraph 1 of the further amended statement of claim filed by the 1st – 4th respondents in the lower Court, the 1st – 4th respondents stated that they instituted this action for themselves and on behalf of Abovwe family of Ekrabovwe Community, Ughelli excluding Chief Thomas Osidje, Bosha Ighoyivwi and Adogbeji Akpojiyovwi. They claimed that at the time of instituting the action the 1st respondent, 2nd respondent and 3rd respondent were respectively the Chairman, Secretary and an elder of the Abovwe family while the 4th respondent was the Chief priestess of Ibuerivwi deity of Abovwe family. They also claimed that:
(i) The 25 acres of land in dispute formed part of Abovwe family vast land measuring more than 1,000 acres known as and called Akpuvunagha Bush, being and situate along Agbarha Road, Otovwodo-Ughelli.
(ii) The head of Abovwe family is usually the eldest man of the three gates that makes(sic) up the Abovwe family and the eldest man of each gate is the head of that gate.
(iii) The family has an elected executive committee with a chairman who reports to the Head of the family for guidance and consent for the day to day running of the Abovwe family and performs the following functions:
(a) Ensuring the unity of the family by always calling the monthly general meetings of Abovwe members which holds at Orho hall, Ekrabovwe Village, Ughelli.
(b) Acting as a communication link between the family and the public.
(c) Collection of rents and dues accruing from family properties.
(d) Protection of the interest of the family properties against unauthorized alienation, trespass and destruction.
(e) With the consent of the head and principal members of the family, to liase with the family lawyer to institute and/or prosecute pending suits if any.
(f) With the consent of the head and principal members of the family, to manage the family bank account and scholarship awards from corporate organizations.
(iv) The head, chairman and secretaries of the Abovwe family were pleaded, including as follows:-
(f) When Enajeme died on 4/4/85, Pa Ighoyivwi Uviena who died on 17/9/96 became head, Ogbe and his executive committee still remained.
(g) Sometime in 1994 Chief Thomas Osidje was elected chairman, while late James Erhue was secretary of Abovwe executive committee among other executives, Ogbe Ojarovwe his predecessor died 1995.
(h) Upon the death of Pa Ighoyivwi Uviena, Pa Iyamu Erhue became the head of the family until his death on December 13th 2004.
(i) Adogbeji Akpojiyovwi became chairman in 2000, Bosha Ighoyivwi secretary, with late Pa Iyamu Erhue as the head of the family. Letters written upon the instructions of Pa Iyamu Erhue as head of family by the law firm of T.J. Onomigbo Okpoko (SAN) shall be relied upon during the trial of this suit.
(v) The Adogbeji Akpojiyovwi led executive committee was dissolved on the 15th day of February, 2004 at the monthly meeting of the Abovwe family and a caretaker committee headed by the 1st plaintiff who was later voted as the substantive current chairman was instituted.
(vi) The reasons for the dissolution of the Adogbeji Akpojiyovwi led executive committee are the sale of the family shrine called Ibuerivwi lying and situate off Arho Road, Otovwodo Ughelli, using the 1st defendant instead of Barr. T.J.O. Okpoko (SAN), the family’s counsel, unauthorised sales of family lands, refusal to call family general meetings and inability to account for family money.
(vii) Sometime in 1993 while Ogbe Ojarovwe was chairman and Pa Ighoyivwi Uviena was family head the Abovwe family sold 25 acres of their family to the 2nd appellant and his half-brother, one Jeffrey Osoro.
(viii) In the first week of November, 2006 they discovered trenches on the land in dispute which has now been surveyed and delineated in litigation Survey Plan No. ITA/DT/188/2008 dated 22nd December, 2008 and prepared by Surveyed E.D. Itesa.
In paragraphs 35 and 36 of the further amended statement of claim, the 1st – 4th respondents stated as follows:
35. Plaintiffs aver that Adogbeji Akpojiyovwi executive committee has refused to handover the family documents to wit: land master plan, Master plan and list of sale of Agharagbowhoavie land, Agreement between Shell and Abovwe family, stamps, family records from the 1950s, Deeds including the one covering the land in dispute and other vital family documents to the current executive committee led by the 1st plaintiff, as is the practice. The executive committee of Adogbeji requested for such documents from Chief Thomas Osidje via a letter. This letter shall be relied upon during the trial of this action.
36. Plaintiffs aver that consequent upon their refusal to handover the documents and their threats to cause trouble, the plaintiffs reported the matter to the police at Ughelli Police Station. At the police station, Adogbeji Akpojiyovwi in his statement to police said he is an ex-chairman of the family and that all documents are in custody of Mr. Bosha Ighoyivwi, the ex-secretary. Mr. Bosha Ighoyivwi in his statement to police said that he has handed over the said documents to the 1st defendant. Plaintiffs shall rely on these statements to the police during the trial of this action.
The appellants, on the other hand, stated in their 2nd amended joint statement of defence that:
(a) The 2nd appellant did not own any land jointly or in common with Joffrey Osoroh as the land he owns within Akpuvunagha bush is 50 (fifty) acres.
(b) The 50 (fifty) acres of land was validly sold or transferred to the 2nd appellant.
(c) Adogbeji Akpojiyovwi (also known as James Akpojiyovwi) became chairman with Bosha Ighoyivwi as secretary of Abovwe family in 2000 and denied that late Pa Iyamu Erhue was head of Abovwe family from 2000 to 2004 or at all.
(d)The sale of land by Abovwe family is carried out by the Executive Committee of the family after due consultation with and approval by the head and principal members of Abovwe family. At the time agreements were executed in favour of the 2nd Defendant by the Abovwe family those who were authorized to perfect sales of land transactions on behalf of the family by way of executing documents for sale of Abovwe family land were Pa Okulushe Adebor, the head of Abovwe family, James Akpojiyovwi Chairman, Bosha Ighoyivwi the secretary and Joseph Ojarovwe Treasurer.
(e)It was during the tenure of Ogbe Ojarovwe as the executive chairman of the executive committee of Abovwe family that the 2nd appellant approached the family through him and purchased his first set of 25 acres of land from the family under accordance with Urhobo native law and custom in 1993.
The appellants then averred in paragraphs 20, 21, 22, 23, 24, 31, 32 and 33 of their 2nd amended joint statement of defence as follows:
20. Later during the tenure of Chief Thomas Osidje who succeeded Pa. Ogbe Ojarovwe as Chairman of the Executive Committee, 2nd Defendant again purchased another set of 25 acres of land from Abovwe family under Urhobo native law and custom. In completing these transaction, the Head and members of the Executive Committee took the 2nd Defendant to each of these parcels of land, pegged out the boundaries of portions of land subject matters of the sale transactions and in the presence of witnesses among whom were Pa Uviena, Thomas Osidje, Bosha Ighoyivwi and others handed the parcels of land over to the 2nd Defendant, who was thereby put into possession.
21. 2nd Defendant paid money as consideration for the sale of these lands to him. For the purposes of documentation, these two transactions were later reduced into writing. At the trial of this action, the 1st, 2nd and 3rd Defendants shall rely on the two unregistered deeds of conveyance of 22nd September, 2002 and 10th November, 2002 as receipts for payments made to Abovwe family by the 2nd Defendant.
22. As soon as the 2nd Defendant purchased these lands he permitted his mother the 3rd Defendant to cultivate the lands with crops and in that process the 3rd Defendant also plotted out portions of the lands to family relations and others to farm on; some of whom paid rents. At this time it was the entire 50 acres that was put under cultivation until 2002 when her son the 2nd Defendant planted oil palm crops or palm trees on the first 25 acres that he purchased.
23. Since 2002 that 2nd Defendant cultivated palm trees on half portion of the land that is the land the subject matter of the first transaction, the 3rd Defendant and other persons with her permission have from year to year cultivated the other 25 acres with crops. These farming activities were to the knowledge of the Plaintiffs who did nothing to challenge the 2nd Defendant as they were aware that the land is the bona fide property of the 2nd Defendant.
24. Sometime in the year 2006 the Plaintiffs trespassed into a portion of the 2nd Defendant’s land under cassava cultivation and uprooted some cassava. Consequently, the mischief of the Plaintiffs was reported to the Police at Ughelli and the Plaintiffs were arrested.
31. In further response to paragraph 34 of the further amended statement of claim, 1st , 2nd, and 3rd Defendants aver that the features and boundaries indicated on the Plaintiffs survey plan do not reflect the correct features and boundaries of the land in dispute. The correct features, boundaries and dimensions of the land in dispute are as contained in the 1st, 2nd, and 3rd Defendants survey plan No. DON/DT/05LD/2009 dated 14/7/2009 prepared by Dave O. Nnamani, a registered surveyor.
32. In further response to paragraph 35 of the further amended statement of claim, 1st, 2nd, and 3rd Defendants aver that the Plaintiffs are not members of the Executive Committee of Abovwe family. They did not demand for any documents from the Executive Committee led by Akpojiyovwi neither are they entitled to receive documents from the Committee by way of hand over.
33. Paragraph 36 of the further amended statement of claim is vehemently denied. Akpojiyovwi did not at any time say that documents are in custody of Bosha Ighoyivwi neither did Bosha Ighoyivwi say that documents are in custody of the 1st Defendant. 1st Defendant does not have custody of documents of Abovwe family. All the 2nd Defendant has are his copies of documents of purchase of the land.
As can be seen from the pleadings of the 1st – 4th respondents and the appellants, the dispute centres only on the second 25 acres of land allegedly purchased by the 2nd appellant from the Abovwe family. In its judgment, the trial Court after summarizing the evidence and legal arguments of the parties, stated on page 268 of the record of appeals as follows:
What 1st Defendant said in his evidence in chief was as follows:
The second 25 acres was purchased by the 2nd Defendant from the Abovwe family during the tenure of Chief Thomas Osidje.”
The trial Court then proceeded to state and hold as follows:
So, was Chief Thomas Osidje head of Abovwe family when the land in dispute was sold to 2nd Defendant? Thomas Osidje was never pleaded by any of the parties as ever being head of Abovwe family or head of any of the three gates of Abovwe family except as a one time chairman of Abovwe family executive committee. See paragraph 10 of Plaintiffs/Further Amended Statement of claim and paragraph 20 of the 2nd Amended joint Statement of defence of 1st, 2nd and 3rd Defendants. The 1st Defendant could not mention the exact dates both sales of 25 acres each was made to 2nd Defendant by the Abovwe family under cross-examination.
I wish to state, straightaway, that the evidence of the 1st appellant that he purchased the second 25 acres……..during the tenure of Chief Thomas Osidje does not mean that he (the 1st appellant) said that Chief Thomas Osidje was the Head of Abovwe family when the land in dispute was sold to the 2nd defendant as misconstrued by the trial Court.
It is true that both parties pleaded that Chief Thomas Osidje was chairman of the executive committee of Abovwe family. In fact, the 1st – 4th respondents pleaded in paragraph 10(g) of their further amended statement of claim that sometime in 1994 Chief Thomas Osidje was elected chairman of the Abovwe family, and averred in paragraph 10(i) thereof that:
(i) Adogbeji Akpojiyovwi became chairman in 2000, Bosha Ighoyivwi secretary, with late Pa Iyamu Erhue as the head of the family. Letters written upon the instructions of Pa Iyamu Erhue as head of family by the law firm of T.J. Onomigbo Okpoko (SAN) shall be relied upon during the trial of this suit.
In response to the above averment, the appellants pleaded in paragraph 10 of the 2nd amended joint statement of defence, inter alia, thus:
1st, 2nd and 3rd Defendants also admit paragraph 10(I) to the extent therein averred that Adogbeji Akpojiyovwi (also known as James Akpojiyovwi) became a chairman in 2000 along with Bosha Ighoyivwi as secretary) but deny that late Pa. Iyamu Erhue was head of Abovwe family from 2000 to 2004 or at all.
From paragraph 20 of the appellants’ 2nd amended joint statement of defence, reproduced earlier in this judgment, the appellants pleaded, amongst other things, that the Head and members of the Executive Committee took the 2nd Defendant to each of these parcels of land, pegged out the boundaries of portions of land subject matters of the sale transactions and in the presence of witnesses among whom were Pa Uviena, Thomas Osidje, Bosha Ighoyivwi and others handed the parcels of land over to the 2nd Defendant, who was thereby put into possession.
I am of the opinion that in view of the state of the parties pleadings, Chief Thomas Osidje, Adogbeji Akpojiyovwi and Bosha Ighoyivwi, who allegedly played prominent roles during the sale transaction between the Abovwe family and the 2nd appellant, are obviously necessary parties to the 1st – 4th respondents suit and whose presence would have assisted the trial Court to fairly resolve the dispute. It was also necessary to make Chief Thomas Osidje, Adogbeji Akpojiyovwi and Bosha Ighoyivwi parties to the suit of the 1st – 4th respondents so that they would be bound by the result thereof. See Green v. Green (1987) 3 NWLR (Pt. 61) 481.
The Supreme Court has defined a necessary party as:
…..one who is not only interested in the subject matter of the proceedings but also one in whose absence, the proceedings could not be fairly dealt with.
See Hon. James Abiodun Faleke v. Independent National Electoral Commission & Anor. (2016) 18 NWLR (Pt. 1543) 61 at 135, per Kekere-Ekun, JSC. See also Ibegwura Ordu Azubuike v. Peoples Democratic Party & 5 Ors. (2014) 7 NWLR (Pt.1406) 292 and Prince Biyi Poroye & 8 Ors. v. Senator A.M. Makarfi & 3 Ors.(2018) 1 NWLR (Pt. 1599) 91 at 143 per Ariwoola, JSC.
As stated earlier, the parties agreed that Chief Thomas Osidje, Adogbeji Akpojiyovwi and Bosha Ighoyivwi were not just members of Abovwe family but principal officers of the Executive Committee of the Abovwe family and the appellants specifically pleaded the pre-eminent roles they played during the alleged sale of thesecond 25 acres of the disputed land to the 2nd appellant. In their suit, the 1st 4th respondents described themselves as Acting for themselves and on behalf of the entire Abovwe family of Otovwodo-Ughelli (Underlining mine for the sake of emphasis). However, in paragraph 1 of their further amended statement of claim, the 1st – 4th respondents averred, inter alia, that:
The plaintiffs instituted this action for themselves and on behalf of the family head Pa. (Sir) Stephen O. Dafiese, and the entire members of Abovwe family Abovwe family of Ekrabovwe community Ughelli excluding Chief Thomas Osidje, Bosha Ighoyivwi, and Adogbeji Akpojiyovwi. (Emphasis supplied by me)
From the above averment, the 1st- 4th respondents did not put forward the Abovwe family as one united family, in the sense that they ex facie excluded the said Chief Thomas Osidje, Bosha Ighoyivwi and Adogbeji Akpojiyovwi, who were hitherto recognized as Chairman, Secretary and principal members, respectively, of the executive committee of the Abovwe family. In fact, the 1st – 4th respondents stated in paragraph 12 of their further amended statement of claim that the Adogbeji Akpojiyovwi-led executive committee of the family was dissolved for sundry reasons, including unauthorised sales of family lands.
In paragraph 37(d) of their further amended statement of claim, the 1st – 4th respondents specifically mentioned Chief Thomas Osidje and unequivocally sought an order to set aside the purported sale of the land in dispute to the 2nd defendant by one Chief Thomas Osidje and/or any other person.
By splitting their family into two or more factions, as it were, it cannot be properly said that it was the Abovwe family that took out the action without the joinder of these three principal members of the family as parties to the 1st – 4th respondents suit. Since the 1st – 4th respondents decided to balkanize the Abovwe family, those they deliberately excluded ought to have been made parties to the suit, in view of the fact that they also have interest in the Abovwe family land, the subject matter of their suit.
In the case of Ramada International and Pharmaceutical Limited v. Felix Ezeonu & 2 Ors. (2016) 14 NWLR (Pt.1533) 339 at 356 per Bolaji-Yusuf, JCA, this Court held that a Court cannot give judgment against a person who is not a party to a case. Therefore, there is need for a Court not to make any Order which binds non-parties to the case before it. See Charles Chinwendu Odedo v. Independent National Electoral Commission & Anor. (2008) 17 NWLR (Pt. 117) 554.
The 1st – 4th respondents deliberately refused or omitted to join necessary parties to their action, as demonstrated in this judgment. Chief Thomas Osidje, Bosha Ighoyivwi and Adogbeji Akpojiyovwi are persons who both the 1st – 4th respondents and the appellants had made important allegations against and, being persons having interest in the subject matter of the suit, they ought to have been made parties. The result is that all the proper parties were not before the trial Court and the Court had no jurisdiction to entertain the suit and grant relief 37(d) in the 1st – 4th respondents further amended statement of claim. I base my opinion on the views of the Supreme Court in the case of Hon. James Abiodun Faleke v. Independent National Electoral Commission & Anor. (2016) 18 NWLR (Pt. 1543) 61 at 135, per Kekere-Ekun, JSC where the apex Court stated that:
The question of proper parties has been held to affect the jurisdiction of the Court as it goes to the foundation of the suit in limine, in which case the Court would lack jurisdiction to hear the suit. See G. & T. Investment Ltd. v. Witts & Bush Ltd. (2011) 8 NWLR (Pt. 1250) 500 @ 538, F-H.
Let me make it clear, before I am misunderstood, that I understand the general principle of law that one person cannot be both a plaintiff and a defendant in the same action. This general principle of law, however, applies only to parties who are actually before the Court. Therefore, there is always a distinction between parties named in the proceedings and the persons represented. See Chief L.U. Okeahialam & Anor. v. Nze J.U. Nwamara & 5 Ors. (2003) 12 NWLR (Pt. 835) 597 at 614 per Ayoola, JSC.
Having regard to the circumstances of this case, since the trio of Chief Thomas Osidje, Bosha Ighoyivwi and Adogbeji Akpojiyovwi, were expressly excluded as those members of Abovwe family represented by the named plaintiffs, they ought to have been joined in their individual or personal capacities as defendants to the suit.
The joinder of Bosha Ighoyivwi and Adogbeji Akpojiyovwi became more imperative as they were named parties to the two Deeds of Conveyance made on the 22nd day of September, 2002 and the 10th day of November, 2002, respectively exhibits 4 and 5 Being named parties in the said deeds of conveyance,and since the 1st – 4th respondents have excluded them from those members of the Abovwe family represented in the suit, it was necessary for them to be joined. The reason is that the Supreme Court has held that: it is elementary that only the parties to a deed of assignment can go to Court for a cancellation of the deed.See Golden Victor Nangibo v. Uche Okafor & 4 Ors. (2003) 14 NWLR (Pt. 839) 78 at 105 per Onu, JSC.
Without more, I resolve Issue 3 in favour of the appellants and against the respondents.
ISSUES NO. 1 & 2
1. Whether the trial Court ought to have dismissed relief 37(b) upon the dismissal of relief 37(a) the principal relief upon which the other reliefs are dependent?
2. Whether the Honourable Trial Court having failed to properly evaluate the evidence in line with the wordings of relief 37(d) ought to have dismissed relief 37(d) as not proved?
Learned senior counsel for the appellants submitted that the trial Court ought to have dismissed relief 37 (b) upon the dismissal of relief 37(a), as relief 37(b) is intricately tied to and dependent on relief 37(a). He also relied on the cases of Musari v. Ogunfodunri (1996) 9 NWLR (Pt.470) 1 at 10 and Olowu v. Eniola (1967) NWLR 339 and contended that the remedy of injunction will not succeed if the claim for trespass fails. On the nature of an injunctive relief, learned senior counsel referred to the cases of NNPC V. A.I.C. LTD. (2003) 2 NWLR (Pt.805) 560 at 585 and Michael Osu & Ors V. Nwadialo & Ors. (2007) LPELR 8373.
He argued that since the 1st – 4th respondents tied their injunctive relief to trespass, that relief ought to have been dismissed as the relief for trespass was refused.
In respect of relief 37(d), learned senior counsel contended that the said relief as couched could not be granted as there was no evidence to sustain it. He stated that the evidence elicited from the 1st – 4th respondents witnesses and the appellants witnesses show clearly that Chief Thomas Osidje, Pa. Uviena, Bosha Ighoyivwi and Adogbeji Akpojiyovwi were indeed the head and principal members of the Abovwe family as at the time the land in dispute was sold to the appellants. Learned senior counsel referred to the evidence before the trial Court and submitted that Pa. Ighoyivwi Uviena was not just one time head of the Abovwe family, he was actually the head of the family as at the time the land in dispute was sold.
It was contended on behalf of the appellants that the trial Court did not understand/appreciate the case of the appellants and the areas parties joined issues in the case and avoided exhibits 4 and 5 ratifying or confirming the consent of the head and principal members of the Abovwe family.
Learned counsel for the 1st – 4th respondents disagreed with the appellants submissions and argued that the appellants admitted the averments in paragraphs 4 and 7 of the further amended statement of claim by paragraphs 5 and 7 of their 2nd amended joint statement of defence.
Counsel cited the case of Ajibulu v. Ajayi (2013) 226 LRCN (Pt.1) 1 at 18-19 and submitted that it is trite law that facts admitted are never in issue and require no proof.
The learned counsel contended that the appellants, having admitted that the 1st – 4th respondents family previously owned the land in dispute, had the burden of establishing by pleadings and evidence that the 1st – 4th respondents family’s title over the land in dispute has been extinguished by the alleged purchase by the 2nd appellant as pleaded at paragraph 20 of the 2nd amended joint statement of defence. To buttress this contention, learned counsel referred the Court to the cases of Onobruche v. Esegine (1986) 1 NWLR (Pt.19) 799 at 807 per Oputa, JSC and Adedeji V. Oloso (2007) 1-2 SC 99.
Learned counsel argued that the affidavit evidence in paragraph 4 of exhibit 6A clearly establishes the absence of the consent of the head and principal members of the Abovwe family to the sale of the land in dispute. He contended, relying on the case of Akin Adejumo & Ors. v. Ajani Yusuf Ayantegbe (1989) 3 NWLR (Pt.110) 417,
that purchase of family land without the consent of the head and principal members is void.
The learned counsel submitted that exhibits 4 and 5 (Deeds of Conveyance) were tendered by the appellants for the purpose of this suit in case their reliance on customary purchase as root of title fails. He submitted, therefore, that exhibits 4 and 5 are afterthoughts and their presence in this suit cannot also confer title on the 2nd appellant because these exhibits are registrable instruments which were not registered. In support of the argument that registrable instruments must be registered, counsel for the 1st – 4th respondents referred the Court to Section 15 of the Land Registration Law and the case of Obienu v. Okeke (2006) ALL FWLR (Pt.340) 1166.
I wish to state immediately that where a party seeks a declaratory relief, as relief 37(a) in this case, he cannot rely on the admission of the defendant to succeed. The party has a duty to lead evidence to establish his claim on the preponderance of evidence. See Hon. James Abiodun Faleke v. Independent National Electoral Commission & Anor. (2016) 18 NWLR (Pt. 1543) 61 at 149 per Kekere-Ekun, JSC. Simply put, a declaratory claim is not granted merely on admission. See Motunwase v. Sorungbe(1988) 5 NWLR (Pt. 92) 90.
The trial Court held that the sale of the second 25 acres of the land, that is the land in dispute, was void because it was not done with the consent of the head of the Abovwe family. I think that if the trial Court had adverted its judicial mind to exhibit 5 properly, it would have discovered that those who sold the second 25 acres to the 2nd appellant were the same persons who sold the first 25 acres to the appellant as contained in exhibit 4 which was accepted by the 1st -4th respondents as valid. There was no reasonable basis to nullify the sale of the second 25 acres of the Abovwe family land to the 2nd appellant.
Apart from tendering exhibits 4 and 5, appellants called a very prominent and a principal member of Abovwe family Bosha Ighoyivwi as DW3 and he gave unchallenged and uncontroverted evidence on pages 240c, 240d, 240e and 240f of the record of appeal, inter alia, as follows:
I know the plaintiffs. I also know the defendants. I know the reason why the parties are in Court. The parties are in Court because of Abovwe family land which we sold to 2nd defendant. The name of the bush is Akpuvunagha bush. The land is located at Otovwodo/Agbarha road Uduere-Ughelli. I am from Abovwe family. Abovwe family has an executive committee. I am the vice chairman in the Abovwe executive committee. Before now I was the secretary of the Executives Committee of Abovwe family. When I was secretary one James Akpojiyovwi also called Adogbeji was the chairman …………..
2nd defendant bought land of 50 acres from Abovwe family. 2nd defendant first bought 25 acres from Abovwe family then my father named Uviena Ighoyivwi was the head of Abovwe family. One Pa Ogbe Ojarovwe was the chairman of the Executive committee of Abovwe family when the 25 acres was bought by 2nd defendant. The 25 acres of land was sold in accordance with native law and custom of Urhobo people …………
The first set of 25 acres of land purchased by 2nd defendant from Abovwe family was purchased during the tenure of Pa Ogbe Ojarovwe as chairman of Above Ighiyivwi. One Pa Uviena Ighoyivwi was head of family. The second set of 25 acres was sold to 2nd defendant during the tenure of Chief Thomas Osidje as the chairman of executive committee. At that time Pa Uviena Ighoyivwi was still the head of the family. The sales were done in accordance with the Urhobo native law and custom. 2nd defendant paid the first sum of N250,000 for the first 25 acres of land. He paid the sum of N250,000 for the second 25 acres of land purchased from the Abovwe family…….
In respect of the second 25 acres of land, we adopted the same procedure. For the purpose of measuring and handing over the second 25 acres to the 2nd defendant, those present were Thomas Osidje, my father, myself, 2nd defendant and others were present. 2nd defendant presented drinks and colanuts(sic) for the family and my father prayed for him. After Thomas Osidje one late James Adogbeji Akpojiyovwi became the chairman of the executive committee of Abovwe family.
At the time of James Adogbeje Akpojiyovwi as chairman I was the secretary while Joseph Ojarovwe was the treasurer. I know one Okulushe Adebor. At the time of our tenure, Pa Okulushe Adebor was the head of the family. During our tenure we executed an agreement for 2nd defendant in respect of the land.Those was signed the agreement were James Akpojiyivwi, Joseph Ojarovwe, Bosha Ighoyovwi (myself) 2nd defendant and Pa Okulushe Adebor. Thomas Osidje witnessed the agreement with thumb impression. A witness signed for 2nd defendant. I look at this document and I say it is the agreement we signed and thumb impression………….
2nd defendant planted palm trees on the first 25 acres. 2nd defendant’s mother the 3rd defendant used the second 25 acres for farming purpose.
I agree with the submission of the learned senior counsel for the appellants that upon the dismissal of relief 37(a), the trial Court ought to have dismissed relief 37(b). Relief 37(a) is a claim for trespass while relief 37(b) is for injunction. The law is that the remedy of injunction will not avail a party where his claim for trespass fails. See Rufai Musari & 4 Ors. v. Alli Ogunfodunrin & 3 Ors. (1996) 9 NWLR (Pt. 470) 1 at 10 per Adamu, JCA; Madam Safuratu Salami & 3 Ors. v. Sunmonu Eniola Oke (1987) 4 NWLR (Pt. 63) 1 and Salawu Oke & 3 Ors. v. Muslim Lamidi Aiyedun (1986) 2 NWLR (Pt. 23) 548 at 560 per Kazeem, JSC where the Supreme Court stated as follows:
Since the learned trial Chief Judge had found that the appellants were not liable for trespass, it is inconceivable to think that the order for perpetual injunction which was earlier made to restrain the appellants from further committing the said trespass, can still be allowed to remain.
See (i) Oladimeji v. Oshode (1969) 1 All N.L.R. 417 at 432; and
(ii) Olayioye v. Oso (1969) 1 All N.L.R. 281 where this Court observed at page 285 as follows:-
The remedy for an injunction will not avail where, as in this case, the plaintiff could not have succeeded in the claim for trespass and both claims should have been as well refused.
The learned counsel for the respondents argued that since exhibits 4 and 5, being registrable instruments, were not registered, they are afterthoughts and their presence in this suit cannot confer title on the 2nd defendant. I agree with the submission of learned counsel for the 1st – 4th respondents that exhibits 4 and 5, being registrable instruments, ought to have been registered by the 2nd appellant. However, the law is that a purchaser of land, who has paid for the land and has taken possession of it by virtue of a registrable instrument, which has not been registered, has acquired an equitable interest, in the land which is as good as legal estate. See Mrs. Elizabeth Irabor Zaccala v. Mr. Kingsley Edosa & Anor. (2018) 6 NWLR (Pt.1616) 528 at 549 per Ogunbiyi, JSC.
I think that I have advanced sufficient reasons to resolve these two issues in favour of the appellants. Issues 1 and 2 are hereby, accordingly, resolved in favour of the appellants and against the respondents.
I have resolved all the three issues in this appeal against the respondents and in favour of the appellants. Having so resolved the issues in this appeal, I find the appeal to be meritorious. The appeal, therefore, succeeds and it is hereby allowed.
The part of the judgment of the trial Court delivered in Suit No. UHC/116/2006 on 02/02/2015 granting the 1st -4th respondents relief 37(b) and 37(d) is hereby set aside. Accordingly, the 1st -4th respondents Suit No. UHC/116/2006 is hereby dismissed in its entirety.
The sum of N100,000.00 (One hundred thousand naira only) is hereby awarded as costs in favour of the appellants against the 1st- 4th respondents.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, M.A.A. ADUMEIN, JCA. I agree with the reasoning and conclusion contained therein. I also hold that the appeal has merit and it is hereby allowed. I abide by the consequential orders made in the lead judgment including order as to costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.
I agree with the reasons therein adumbrated to arrive at the conclusion that the appeal is meritorious and should be allowed.
I also allow the appeal and I abide by the consequential orders cost of N100,000.00 (One hundred thousand Naira in favour of the Appellants and against the 1st – 4th Respondents
A. Akpomudje (SAN) with him, I.D. Tuggen, Esq., Dr. O. Akpomudje and M.O. Asaboro, Esq. –For Appellant
B. O. Ubioworo, Esq.- for 1st – 4th respondents.
A.O. Whisky, Esq. – for 5th respo