MTN NIGERIA COMMUNICATIONS LTD v. EMEGANO CITATION: (2016) LPELR-41090(CA) In the Court of Appeal In the Owerri Judicial Division Holden at Owerri ON WEDNESDAY, 22ND JUNE, 2016 Suit No: CA/OW/87/2012 Before Their Lordships: IGNATIUS IGWE AGUBE Justice, Court of Appeal ITA GEORGE MBABA Justice, Court of Appeal FREDERICK OZIAKPONO OHO Justice, Court of Appeal Between MTN NIGERIA COMMUNICATIONS LIMITED - Appellant(s) And BARRISTER EMEKA EMEGANO (SUING AS ATTORNEY TO THE FAMILY OF ONYEWUEKE OF UMUAKAJE, UMUSEKE, OKWUDOR, NJABA L.G.A, IMO STATE) - Respondent(s) RATIO DECIDENDI (2016) LPELR-41090(CA)
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MTN NIGERIA COMMUNICATIONS LTD v.EMEGANO
CITATION: (2016) LPELR-41090(CA)
In the Court of AppealIn the Owerri Judicial Division
Holden at Owerri
ON WEDNESDAY, 22ND JUNE, 2016Suit No: CA/OW/87/2012
Before Their Lordships:
IGNATIUS IGWE AGUBE Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal
AndBARRISTER EMEKA EMEGANO(SUING AS ATTORNEY TO THE FAMILY OFONYEWUEKE OF UMUAKAJE, UMUSEKE,OKWUDOR, NJABA L.G.A, IMO STATE)
- Respondent(s)
RATIO DECIDENDI
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1. ACTION - REPRESENTATIVE CAPACITY: Requirements for suing in a representative capacity"In the resolution of this first issue, I must not fail to remark that the general position of the Law thatwhere, as in this case, the Respondent sued in representative capacity of the family of Onyewuekeof Umuakaje, Umuseke, Okwudor, Njaba, Local Government Area, Imo State, he is the sole Plaintiffand as has been held in Otapo V. Sunmonu (1987) 2 NWLR 587, he assumed the position of dominusLitis until Judgment since he had/has stepped into the shoes of the Family that donated the Power ofAttorney in his favour to prosecute the matter on their behalf. He only ceases to have the powersconferred on him at the end of the case and after judgment (Okonji V. Njokanma (1989) 4 NWLR 161refers) and if he happened to abandon the case it was left for the trial Court to substitute for him oneof those represented as if the substituted member of the family had been in the action from the timeof its commencement.Accordingly, what is needed in circumstance of where a party sues in representative capacity is theindication of such capacity under the party???s name in the title of the suit. ???Thus???, as explainedby the learned Author and Senior Advocate of Nigeria, Fidelis Nwadialo in his Civil Procedure inNigerian second Edition, University of Lagos Press, 2000 at Page 116 Citing Re Tottenham (1896)and the Nigeria cases of Ede V. Udegbo & Ors. (1961) NWLR 9 and Nta V. Anigbo & Ors. (1972) 5 SC;???If a party, ???A. B.??? is representative Plaintiff for the members of a Club ???X???, he should bementioned in the title of the Suit as, ???A. B??? ... Plaintiff ???(On behalf of himself and members of???X???)???.???The same Statement as to capacity must bemade in the endorsement of the Writ, in the title and body of the pleadings??? See Ude V. Nwara(1993) 2 NWLR 638.I am not oblivious of the decision of the Supreme Court in Vulcan Gases Ltd. Vs Gesellschaft FurIndustries Gasverwertung A. G. (G. I. V.) (2001) 1 FWLR 1 at 26 paras. D ???G Per Iguh, J. S. C.; whoin a case where one Mr. Okunlola as Counsel had without the authority or Power of Attorney of theRespondent, instituted the action at the trial Court and an Application was subsequently brought tosubstitute learned Counsel???s name with the Respondent, stated the position of the law thus:???I think I ought to observe, in the first place, that this amendment of 24th February, 1997 whichwas not opposed in no small way helped to save this proceeding. This is because, the Donee of aPower of Attorney or an Agent in the presentation of a Court suit on action pursuant to his powersmust sue in the name of the Donor or his Principal and not otherwise. See Timothy Ofodum Vs.Onyeacho (1966/67) 10 ENLR 132; Jones Vs. Gurney (1993) W. N. 72; JOHN Agbim Vs. Mallam GarubaJemeyita (1972) 2 ECSLR 365.-------------------------------------------------------------------------------- -----------------------------------------------------------------------------------------------------------------------------------------Accordingly, have regard to the amendment of the 24th February, 1997, it must be deemed that itwas the Respondent itself that commenced this action in its own name ab initio and all argumentsrelating to whether or not Mr. Okun???lola had the locus standi at the time he commenced theproceeding as a Donee of a Power of Attorney automatically go to no issue.???The contribution of Uwaifo, JSC at pages 51 ??? 55 of the above Judgment is most instructive and it isnecessary to reflect on it as applicable to this Appeal before us. Even in that case where AkinlolaEsq. commenced that action when his capacity was challenged and he subsequently filed the Powerof Attorney which led to the amendment of the writ of Summons and Statement of Claim, theSupreme Court unanimously agreed that the said learned Counsel ab initio had the locus standifollowing the amendment to reflect his true capacity.???At page 51 paragraphs G ??? H to page 52 Paras A ??? H; the Emeritus Law Lord reasoned ratherinstructively and refreshingly that:???In the case of a Plaintiff in a representative action, it is generally understood that he claims torepresent numerous other persons having the same interest, including himself, so that every personso represented, though not named on the Record, is a party to the action. It is always the issue ofcommon interest. Rules of different Courts make adequate provisions for representative action. See,Idise Vs. Williams International Ltd. (1995) 1 NWLR (PT. 370) 142; Ovenseri Vs. Osagiede (1998) 11NWLR (Pt. 572) 1. See also Detart Vs. Stevenson (1876) 1 Q. B. D. 313; Prestney Vs. Mayor & Corp. ofColchester (1882) 21 Ch. D. 111; Bedford (Duke of) Vs. Ellis (1901) A. C. 1. ..."Per AGUBE, J.C.A. (Pp.33-37, Paras. D-D) - read in context
2. ACTION - REPRESENTATIVE ACTION: Essential condition for sustaining a representative action"???There is no doubt that Order 16 Rule 1 of the Rule of Supreme Court provides that: ???A personholding the Power of Attorney and suing on behalf of his principal should sue in the name of hisprincipal only."Per AGUBE, J.C.A. (P. 42, Paras. D-E) - read in context
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3. ACTION - COMMENCEMENT OF ACTION: Effect of commencing an action by a wrong or improperparty"However this action was commenced in the High Court of Imo State of Nigeria at the NkwerreJudicial Division and as the 1st day of April, 2008 when the writ of Summons was issued at theinstance of the Plaintiff (now Respondent) the High Court of Imo State (Civil Procedure) Rules of ImoState, 2008 had become operative. the makers of the Rules must have anticipated frivolousobjections of the nature which have now become the hallmark of legal practitioners of the likes ofthe learned Counsel for the Appellant when they provided amongst others in Order 13 Rule 34 thusunder Chapter IV of that Order Captioned: ???IV Legal Practitioners???: ???34 where by these Rulesany act may be done by any party in any proceedings, such act may be done either by the party inperson, or by his legal Practitioner, or his agent (unless an agent is expressly barred under theseRules???.Besides, even if the Respondent commenced the action in the name of the wrong person as claimantOrder 13 Rule 2 expressly stipulates that;???Where an action has been commenced in the name of the wrong person as Claimant or where itis doubtful whether it has been in the name of the right claimant, a Judge may order the substitutionor addition of any other person as claimant on such terms as may be just."Per AGUBE, J.C.A. (Pp.42-43, Paras. E-E) - read in context
4. ACTION - REPRESENTATIVE ACTION: Effect of bringing a representative action"???At page 18 of the Records the Plaintiff who had stepped into the shoes of the family claimed thedamages on behalf of the family and whatever damages is awarded subsequently shall go to thefamily by virtue of the terms of the Power of Attorney donated to the Plaintiff. This is a species ofrepresentative action and accordingly, both the named Plaintiff and those represented are parties tothe Suit although the Plaintiff/Attorney to the family is dominis litis until the suit is determined.Having initiated the suit on behalf of the family, the Respondent has duly reflected the name of thefamily for and on behalf of whom the Suit was instituted so long as the mandate of the familyremains accepted and uncountermanded. Therefore, any decision arrived at by the Court upondetermination of the suit would bind the family of Onyewueke who claim to be the owners of theland and donated the authority to sue in the plaintiff???s name or any other person or group ofpersons authorized by the Plaintiff to the said plaintiff/Respondent. Accordingly, the family ofOnyewueke of Umuakaje, Umuseke, Okwudor, Njaba local Government Area of Imo State would bedeemed to present throughout the proceedings by the presence of the Plaintiff/Respondent for aJudgment given in favour of the Plaintiff/Respondent as an Attorney of the family is for the benefit ofthe family. See pages 110 and 111 of Civil Procedure in Nigeria second edition by Fidelis Nwadialo,SAN and the cases of Okeke V. Olughor (1995) 5 SCNJ 217 at 226; Ekennia V. Nkpakara (1997) 5SCNJ 70 at 88; Ede V. Nwidenyi, In RE: Ugadu (1988) 5 NWLR 189; Okanji V. Njokanma (1989) 4NWLR 161 at 169, Opebiyi V. Oshobajo & Anor (1976) 9 ??? 12 S. C 195 at 200, Olapo V. Sunmonu(1987) 2 NWLR 587, Pabiekun & Ors. V. Ajayi (1966) 1 ALL NLR 197 and Per Tobi in Dr. Augustine N.Mozie & 6 Ors. V. Chike Mbamalu & 2 Ors. (2006) LPELR ??? 1922 (SC) at PP 17 -19 Paras. D ??? B;Okoli & Ors. V. The SURVEYOR ??? General Anambra State of Nigeria (2002) LPELR ??? 242 (SC) at 19Paras A ???D Per Wali, JSC."Per AGUBE, J.C.A. (Pp. 52-54, Paras. D-B) - read in context
5. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed"... Odunze V. Nwosu (supra) and kalio V. Daniel ???Kalio (supra) which rightly decided that a Court isnot a Charitable organization or Father Christmas that would grant Reliefs not sought or claimed byparties gratuitously."Per AGUBE, J.C.A. (P. 76, Paras. B-C) - read in context
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6. ACTION - LEGAL PERSONALITY: What the term "legal personality" entails"In the resolution of this Issue shall from the onset concede to the learned Counsel to the Appellantand the authorities of MAILATIA V. Veritas Insurance (1986) 4 NWLR (PT.38) 802 at 804 andEmecheta V. Ogueri (1996) 5 NWLR (Pt.447) 227 at 231 as ably cited by him that a party who shouldcommence action in Court must be a person known to law that is legal person and that generally annon -juristic person cannot sue or be sued.???By the concept of legal personality as has been espoused by our jurisprudence over the years thegeneral position of the law is that only natural persons, in other words human beings and artificial orjuristic persons (bodies corporate) are seised of the capacity or competence to sue and be sued. InChief Aderibigbe Jacob V. Osho Owonifari (1974) 10 S. C. 157 at PP 163 ??? 165; the Supreme Courtcommenting on theory of legal personality denied a person thus:???In legal theory, a person is any being whom the law regard as capable of rights andduties. There are two kinds of persons distinguishable as natural and legal. A natural person is ahuman being while a legal contemplation such as a joint stock company or Municipal corporation. Injurisprudence, the term applies to corporation such as limited liability companies or MunicipalCorporation; it may also apply to churches, hospitals, or Universities if they are in corporate orregistered as such. Their creation and existence have been aptly described by Salmond in his Book(12. Edition) P. 220??????In Nigeria Nurses Association & Anor V. Attorney-General of the Federation & Ors. [1981] 11 -12S. C. 1 at 12; Obaseki, J.S.C, postulating on this concept posited that since the concept of artificialpersonality came into existence by legal will and fiat, they must necessarily exist only at thepleasure of the law and their extinction or death is called dissolution. On the other hand, thepersonality of a human being commences from birth and ceases to exist at death. At deaththerefore, such a being ceases to possess rights obligations and therefore can no longer be capableof suing and be sued.???What emerges from the above analogies is that like natural persons only those artificial bodies thatby virtue of their incorporation have acquired rights and concomitant obligations or duties areempowered to sue and be sued. The rationale behind this legal concept is that litigation is all aboutthe determination of legal rights and about the determination of legal rights and obligations andaccordingly, only parties with such vested rights or locus standi, who have life either natural orlegislation, can initiate actions or can be proceeded against. See Fawehinmi V. Nigeria BarAssociation (No.2) (1989) 2 NWLR 558 at 595 and Management Enterprises Ltd. V. Otusanya (1987)2 NWLR 179 and in particular ZAIN Nigeria Ltd. V. Alhaji Mohammed Kawu Ilorin (2012) LPELR ???9249 (CA) a decision of the Ilorin Division of this Court, Per Agube JCA at pages 60 ??? 62 Paras. A??? B."Per AGUBE, J.C.A. (Pp. 77-79, Paras. A-D) - read in context
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7. ACTION - REPRESENTATIVE CAPACITY: Nature and effect of instituting a case in representativecapacity on behalf of a family or ruling house???"Luckily for me, in the course of writing this Judgment, I came across the TEXT CIVIL PROCEDUREIN NIGERIA SECOND EDITION, BY FIDELIS NWADIALO, SAN at pages 122 ??? 123??? where thelearned Author of blessed memory commenting on the heading: ???Defence of Family or CommunalProperty by An Individual???,Posited:???A person may institute an action for the preservation of a property which he owns jointly withothers or for his own interest in it. A family land is an example of such property. A member of thefamily may thus sue in personal capacity to safeguard the land. One of the issues in. Sogunle AndOthers V. Akerele And Others. (1967) NWLR 58; was whether the Plaintiffs were right in suing fordeclaration that the land in dispute was their family land. the Supreme Court answered the questionin the affirmative, holding that a member of family may take steps to protect family property or hisinterest in it but that if had not the authority of the family to bring the action, the family would, ofcourse, not be bound by the result, unless for some reasons the family was stopped from denyingthat the action was binding??? per Onyeama, JSC at Page 60 of the Report.???To lay to rest this spurious objection of the learned Counsel nay this frivolous Appeal Order 13Rule 12(1) of the High Court of Imo State (Civil Procedure) Rules, 2008 in anticipation ofdevelopments of this nature as proffered by the learned Counsel for the Appellant, has provided invery clear terms that:???12(1) where more persons than one have the same interest in one suit, one or more of suchpersons may sue or be sued on behalf of or for the benefit of all person so interested???.Again to also lay to rest the question of legal personality of a family? Order 13 Rule 13(1) has madeprovision for representation of persons or classes of persons in certain proceedings concerning???(a) administration of estate or(b) property subject to a trust or(c) land held under customary law as family or community property???Where the persons or class of person members of the class can be ascertained or not ascertained,for the Court for purposes of expedient and efficient procedure, to appoint one or two persons torepresent the person or group/class or member of such Class of persons.Under Rule 4 of Order. 13 of the Rules: ???(4) In the Rule, the word ???class??? includes the personsrecognized by Customary Law as members of a family or as members of a land owningcommunity???.???With the above provisions of the Imo State High Court Rules and other Judicial authorities andtexts cited of the Respondent was proper and proper parties with the requisite legal personalitiesempowered the Respondent on behalf of their family to institute the action to protect their jointfamily property."Per AGUBE, J.C.A. (Pp. 91-94, Paras. E-A) - read in context
8. COMMERCIAL LAW - AGENCY: Definition and mode of creating an agency"In Freeman & Lockyer Vs. Buckhurst Park Properties (Mangal Ltd. (1964) 2 Q. B. 480 at 502 andPages 1 Para. 1.01; 6 Para. 1-034 of Bowstead & Reynolds on Agency, 16th Edition having explainedthat the law is settled that one on whose behalf an act is done is called the principal and the onewho is to act is called the Agent. Agency, according to the learned Law Lord, exists between twopersons when one of whom expressly or impliedly consents that the other should act on its behalf soas to affect his relations with third parties and that the other who similarly consent to so act.???According to him, the authority so created is called actual authority express or implied and that itis said that the simplest way that an Agency relationship may arise between Principal and Agent andas regards third parties is by express appointment whether written or oral by the principal. As to themode of creation and scope of authority vested by a Principal Diplock L. J; in the Freeman V.Buckhurst Park Properties (Mangal Ltd (supra) held that:???An ???actual??? authority is a legal relationship between principal and Agent created by aconsensual agreement to which they alone are parties. its scope is to be ascertained by applyingordinary principles of construction of contracts, including any proper implications from the expresswords used, the usages of trade, or the course of business between the parties."Per AGUBE, J.C.A.(Pp. 40-41, Paras. C-D) - read in context
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9. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter"In the resolution of this second Issue I must not fail to agree with the submission of the learnedCounsel for the Appellant and the authority of Integrated Timber and Plywood Products Ltd. V. UnionBank of Nigeria Plc. (2006) 12 NWLR (Pt.995) 483 at 489 (see page 502 Paras. D -F); where Ogbuagu,JSC quoted with approval the dictum of Obaseki, JSC in Tukur V. The Government of Gongola State(1989) 4 NWLR (Pt.117) 517, (1989) 9 SCNJ 1 that:???It is a fundamental principle that Jurisdiction is determined by the plaintiff???s claim (Izenkwo(sic) V. Nnadozie) 14 W. A. C. A. 361 at 363 ??? per Goussey, J. A; Adeyemi V. Opayemi (sic) (1976)??? 10 S.C. 31 at 51. In other words, it is the claim before the Court that has to be looked at orexamined to ascertain whether it comes within the jurisdiction conferred on the Court. (See WesternSteel works V. Iron & Steel Workers (1987) 1 NWLR (Pt.49) 284. Judges have no duty and indeed nopower to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction toexpound the jurisdiction conferred on them. See, African News papers of Nigeria & Ors. V. TheFederal Republic of Nigeria (1985) 1 ALL NLR 50 at 175 (1985) 2 NLR (Pt.6) at 137. See also Per Tobi,JSC In the land mark case ofInakoju V. Adeleke Oladoja???s CASE) (2007) 4 NWLR (Pt.1025) 423 at588; who following previous landmark cases on jurisdiction like Nnonye V. Anyichie (2005) 8 WRN 1at 22, NDIC V. CBN (2002) 18 WRN 1, (2002) 7 NWLR (Pt.766) 272; Elabanjo V. Dawodu (2006) 15NWLR (Pt.1001) 76; Okulate V. Awosanya (2000) 2 NWLR (Pt.646) 530 at 556-557; Adeyemi V.Opeyori (1976) 9 ??? 10 S. C. 31 at 51, Tukur V. Gongola State (supra) Egbuonu V. BRTC (1997) 12NWLR (Pt.531) 29 at 43; restated the position of the law that it is trite that in the determination ofjurisdiction of a Court to entertain and determine a suit the Court process to be used is theStatement of claim and the Relief sought therein."???In that case which was fought by way of Originating summons, the emeritus Law Lord reasonedthat the Court process to be used is the affidavit in support of the Originating Summons and that theCourt will not examine the Counter-Affidavit or statement of Defence even if filed."Per AGUBE, J.C.A.(Pp. 54-56, Paras. F-E) - read in context
10. COURT - JURISDICTION: Importance of jurisdiction in the process of adjudication"In the same case he emphasized the importance of jurisdiction as being a radical and crucialquestion of competence for if the Court of trial as in this case had no jurisdiction to hear the case,the proceedings are a nullity ab initio, however well conducted and brilliantly decided they might be,as a defect in competence is not intrinsic but rather extrinsic, to the entire adjudicatory process.Jurisdiction therefore according to the Emeritus and erudite judicial Icon, ???is the nerve centre ofadjudication; it is the blood that gives life to the survival of an action in a Court of law; in the sameway blood gives life to the human being and the animal race. (Onyeanucheya V. MilitaryAdministrator of Imo State (1997) 1 NWLR (Pt.482) 429; Madukolu V. Nkemdilim (1962) 2 SCNLR341; Barsown V. Cleinessy International (1999) 12 NWLR (Pt. 632) 516; Chief Utih V. Onnoyivwe(1991) 1 NWLR (166) 166 referred. See further A. G. Federation V. Abubakar (2008) 16 NWLR(Pt.1112) 135 at 158 paras. B ??? D Sunday Gbagba righa V. Adikumo Toruem & Anor. (2013) MRSCJ(Vol. 16) 93 at 101 paras. B ???E Per Rhodes-Vivour, JSC."Per AGUBE, J.C.A. (Pp. 56-57, Paras. F-E) -read in context
11. FAMILY LAW - FAMILY STATUS: Definition of the term "family status""In the first place the learned Counsel for the Respondents has aptly cited the case of Okulate V.Awosanya (2000) FWLR (Pt.25) 1666 at 1679 paras. C- D; where. Uwaifo, JSC adopted the definitionof ???family??? as given by the Shorter Oxford English Dictionary Vol. 1, 3rd Edition at page 723 tomean: ???The body of persons who live in one house or under one head, including parents, children,servants, etc????????? The group consisting, of parents and their children whether living together ornot; in wider sense, all those who are nearly connected by blood or affinity??????. Those descendedor claiming descent from a common ancestor; a house, kindred, lineage???.The learned law Lord continued para. F of the same page that: ???In my opinion, family membershipis no more than family affinity or consanguinity or lineage."Per AGUBE, J.C.A. (Pp. 81-82, Paras. E-C) -read in context
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12. LAND LAW - CLAIM FOR TRESPASS AND INJUNCTION: Whether a claim for trespass andinjunction automatically puts title to land in issue"... Nnamani, JSC had in the case of Ranking Udoh & Ors. V. Obot (1989) 1 NWLR (Pt.95) 59 at 64Ratio 15;held that in a claim for trespass, one need not necessarily be the owner of land and thatwhat is required is that the claimant proves exclusive possession not title but that where theclaimant claims damages for trespass and injunction against further trespass, it follows that he hasput his title in issue, which position was buttressed in Odunze & V. Nwosu & Ors. (2007) 13 NWLR(Pt.1-1050) 1 at 53 paras. E ??? F but by Onnoghen, JSC who held that:???Apart from the unambiguous claim of the Respondents for declaration of title, it is settled law thatwhere a plaintiff claims for damages for trespass, as in the instant case, his title to the land allegedlytrespassed upon, title thereby put in issue. In other words for the Plaintiff in such a case to succeed,he must first establish his title to the land in dispute before proceeding to establish possessionthereof."Per AGUBE, J.C.A. (Pp. 58-59, Paras. D-C) - read in context
13. LAND LAW - TRESPASS TO LAND: Whether a claim in trespass is based entirely on possession ofthe land"In my humble view, the claim of the Plaintiff/Respondent in the Lower Court is in the tort of Trespassto land and all that the plaintiff ought to show and prove at the hearing as can be gleaned from hispleadings and Reliefs claimed is that he was in exclusive possession of the land as at the time theAppellant???s trespassed upon the same. This is because Trespass as a tort is actionable at theinstance of a person in exclusive possession. This position of the law had long been established byour Court in a plethora of cases of settled antiquity like Adio V. Fatukasi (1972) 2 U. I. L. R. 51;Adeshoye V. Shivonika (1952) 14 W. A. C. A. 86; Odebanji V. Okunola [1968] N. M. L. R. 221 (S.C)Renner V. Annan [1935] 2 W. A. C. A. 258 Will V. Will (1924) 5 N. L. R. 76; Akpiri V. West AfricanAirways Corporation (1952) 14 WACA 195, and Oluwi V. Eniola [1967] N. M. L. R. 339 (S.C); where itwas variously held that in a case of trespass, the Plaintiff must first establish that he is in possessionof the land at the time of trespass complained of or who is deemed to have been in such possessionat such time of the trespass the rationale being that trespass is an injury to possession rather that totitle. Thus, an owner of land who is legally entitled to possession is ordinarily not competent tomaintain an action in trespass before having possession.???It has therefore been held that possession is so important that a tenant or a licensee inpossession can bring an action in trespass, his possession must be clear and exclusive, but theslightest amount of possession would suffice to entitle the person in possession to recover against amere trespasser. Although an owner of land ordinarily ought not to bring an action in trespass, whereas in this case, the trespasser by the construction of the mast shall cause permanent injury to theland which shall affect the value of their inheritance, they (owners) can bring an action for the injuryto their interest.See Tongi V. kalil 14 WACA 331 followed in Eze V. Owusoh [1962] 1 ALL NLR 138.That all that a claimant in Trespass to land simpliciter ought to show is exclusive possession wasamply demonstrated by Tobi, JSC in the celebrated case of Yekin Adedokun Oyadare V. Chief OlajireKeji & Anor (2005) LPELR - 2861 (SC.) (2005) 7 NWLR (Pt.925) 571, (2005) I. S. C (Pt.1) 19 where heheld inter alia pages 21 ??? 22 paras G ??? C of the LPELR earlier cited thus:???It is trite law that trespass to land is actionable at the suit of the person in possession of the land.The person can sue for trespass even if he is neither the owner nor privy of the owner. This isbecause exclusive possession of land gives the person in such possession the right to retain it and toundisturbed enjoyment of it against all wrongdoers except a person who could establish better title.Therefore, anyone other than the true owner, who disturbs his possession of the land can be sued intrespass and in such an action, it is no answer for the Defendant to show that the title to land is inanother person. To resist the Plaintiff???s claim, a Defendant must show either that he is the one inpossession or that he has a right to possession???See further page 20 paras. A ??? B. where the Emeritus Law Lord earlier held that it is good law thata plaintiff who succeeds in proving acts of possession can obtain Judgment claiming trespass as actsof possession and enjoyment of land could be evidence of ownership or right of occupancy. See alsoper Ogbuagu, JSC in Mather Echere V. Christopher Ezerike & Ors. (2006) LPELR ??? 1000 (S.C) atpages 23 ??? 24 Paras A ??? C; E ??? F, Tukuru V. Sabi (2013) Vol. 222 LRCN (Pt.1) 65 at 86 Paras. EE??? J and page 87 para. A per Ngwuta, JSC."Per AGUBE, J.C.A. (Pp. 59-62, Paras. E-F) - read in context
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14. LAND LAW - TRESPASS TO LAND: Whether trespass is actionable per se"... ordinarily, trespass is actionable per se and the law presumes that damage flows with it,Depending on the degree of damage proved the Appellant would naturally be entitled to Generaldamages but where he has pleaded special damages which he specifically pleaded with particulars,he was expected to adduce evidence in proof of the particulars of special damages at the hearing(see, Adurumokumer of Bakakodia V. Sillo of Omadino 14 WACA 123 at 125 followed inAttah V.Nnacho [1964] 1 ALL N. L.R. 313 S. C. and Aromire V. Awoyemi [1972] 1 ALL W. L. R. 101, (S.C), andif proved would be entitled to such damages."Per AGUBE, J.C.A. (P. 63, Paras. C-F) - read in context
15. LAND LAW - TRESPASS TO LAND: Whether claim for tresspass can be combined/joined with aclaim for recovery of possession???"It has been held that a claim in trespass and for recovery of possession are self ???contradictoryand should not be joined together as one postulates that the Plaintiff was not in possession at therelevant time whilst the other suggests that he was."Per AGUBE, J.C.A. (Pp. 63-64, Paras. F-A) - readin context
16. LAND LAW - TRESPASS TO LAND: Duty of the parties in a claim for trespass to land"As I said earlier, a claim in trespass is not dependent on declaration of title as can be seen from theRespondent???s pleadings and Reliefs. See Oluwi V. Eniola (supra) and Ekeresu & Anor V. Oyobebere& 5 Ors. (1992) 11 ??? 12 SCNJ (Pt. II) 189 at 205."Per AGUBE, J.C.A. (P. 64, Paras. C-D) - read incontext
17. LAND LAW - CLAIM FOR TRESPASS AND INJUNCTION: What a party claiming damages fortrespass and injunction must prove"???However where as in this case the Respondent sought for damages and injunction, and in viewof the decisions of the Supreme Court cited per Nnamani JSC (of blessed memory) and Onnoghen,JSC, the onus is/was on the Respondent to prove his title or better title to the land if the Appellantjoined issues by Pleading that it was entitled to possession of the land."Per AGUBE, J.C.A. (P. 64,Paras. E-F) - read in context
18. LAND LAW - TRESPASS TO LAND: Whether a claim in trespass is based entirely on possession ofthe land???"Incidentally, Ejike V. Eze (DR.) A. I. Onukogu also reported in (2005) LPELR ??? 3322 (SC) hasbeen cited herein by the learned Counsel for the Respondent in urging us to discountenance thesubmission of the learned Counsel on this Issue. At pages 18 -19 Paras F ??? A. Oguntade, JSC; whoread the Judgment of the Supreme Court relied on the dictum of Fatuyi ??? Williams JSC (as he thenwas) in Pius Amakor V. Obiefuna (1974) ALL N. L. R. 109, (1974) 3 S. C. 49 also reported in (1974)LPELR ??? 452 (SC) at Pp. 11 Paras F ??? G; 12 Paras. A ??? G and 13 paras A ??? C, in case that wason all fours with ours and who restated the settled position of the law that a person can sue fortrespass even if he is neither the owner nor privy of the owner. This is because exclusive possessionas we had held earlier, gives the person in such possession the right to retain it and in undisturbedenjoyment of if against all wrong doers except a person who could establish a better title.He further held that anyone other than the true owner, who disturbs his possession of the land, canbe sued in trespass and in such action it is no answer for the Defendant in that case who even filed aStatement of Defence to show in his paragraph 7 thereof that the title to the land was in anotherperson. In the words of the sage:???To resist the Plaintiff???s claim, a Defendant must show either that he is the one in actualpossession or that he has a right to possession.???In support of the right of a person (be he even a trespasser) in possession of land as against the trueowner to devise or convey his interest in the land or transmit it by inheritance; he cited the dictum ofCockburn, C.J; In Asher V. Whitlock (1965) L. R. 1 Q. B. Page 1 at page 5; where he remarked that:???But I take it as clearly established that possession is good against all the world except the personwho can show a good title; and it would be mischievous to change the doctrine. In Dyeball Mood andM346, one year???s possession by the Plaintiff was held good against a person who came and turnedhim out; and there are other authorities to the same effect. Suppose the person who originallyenclosed the land had been expelled by the Defendant, or the Defendant had obtained possessionwithout force, by simply walking in at the open door in the absence of the then possessor, and wereto say to him: you have no more title than I have, my possession is as good as yours; surelyejectment could have been maintained by the original possessor against the Defendant."Per AGUBE,J.C.A. (Pp. 66-68, Paras. E-F) - read in context
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19. LAND LAW - CLAIM FOR TRESPASS AND INJUNCTION: Whether a claim for trespass andinjunction automatically puts title to land in issue???"On the position taken by the learned Counsel to the Appellant herein which was erroneously alsotaken by the Trial Court in the said Amakor V. Obiefuna citing the West African Court of Appeal caseof Kponuglo V. Kodaja, the learned Sage held that case never decided that in all claims for trespassand injunction, title must be proved. His Lordship of blessed memory then dealt the dead blow to theposition taken by the learned Counsel for the Appellant here in when he submitted that Respondentought to have rooted his claim on declaration of title before damages and injunction can be grantedhim when he (the learned Judicial Icon) posited:???Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiffneed to prove is that he has exclusive possession, or he has the right to such possession, of the landin dispute but once a Defendant claims to be the owner of the land in dispute, title to it is put inissue, and in order to succeed, the Plaintiff must show a better title than that of the Defendant. Thisis clearly the position in the Kponaglo???s case as can be gleaned from the extract from page 24 ofthe Judgment???.???The above dictum of His Lordship is the true purport of the Ruling of the Learned Trial Judge atpage 112 of the Records and this position of the law as enunciated is what some of us were taughtand are familiar with as being the true state of our law."Per AGUBE, J.C.A. (Pp. 68-70, Paras. F-A) -read in context
20. LAND LAW - TRESPASS TO LAND: Duty of the parties in a claim for trespass to land"To buttress the position taken by the learned Trial Judge and as rightly submitted by the learnedCounsel/Respondent that the Supreme Court and indeed his Court in the cases relied upon by thelearned Counsel for the Appellant in support of his submissions on this Issue, did not say that anaction in trespass is not justiciable unless accompanied by a claim of Declaration of title. Oputa, JSC(also of blessed memory) had put it beyond question in Ranking Udo & Ors. V. Mbiam Obot & Ors.(1989) 1 N. S. C. C. 45 at 53 lines 7 ??? 8 that:???Trespass to land and Declaration of title to land are two distinct and separate claims. Theseclaims may arise from two distinct causes of action and an action in trespass will not constitute a barto a future action for title: Brunsden V. Humphrey 14 q. b. d. 141."Per AGUBE, J.C.A. (Pp. 70-71,Paras. F-D) - read in context
21. LAND LAW - TITLE TO LAND: When is title to land put in issue"In the same way that jurisdiction can be determined from the Statement of Claim and the Reliefssought so can a Court determine from the pleadings and the Reliefs sought whether titles is in Issue.For instance following the decisions of the Supreme Court like Ranking Udo & Ors. V. Mbian Obot &Ors (supra); Integrated Timber & Plywood Products Ltd. V. Union Bank Nig. Plc. (2006) 12 NWLR(Pt.995) 483 at 489 and Odunze V. Nwosu (2007) 13 NWLR (Pt.1050) 1 at 14; we can even deducethat where the Plaintiffs pleaded the pedigree of the land right from its founding fathers throughwhom it devolved until it got to their hand as well sought Reliefs in damages and injunction, then theinference could have even been drawn that title to the land was in issue.???Sometimes also, the Pleadings of a Plaintiff may be obscure such that the trial Court would strainevery nerve and scrutinize the entire case of the Plaintiff with a tooth comb in order to decipher thetrue purport thereof. In such a case, title to land may be deciphered from the body of the Statementof claim. Again, in the peculiar circumstance parties found themselves where the Respondent suedfor Trespass and claimed damages and injunction as Reliefs, if the Appellant had joined Issues byfiling his Statement of Defence pleading that they were the owners of the land or the ones entitled toexclusive possession, then the title to the land would automatically be put in issue and whoeverprove better title would be given Judgment or in the alternative where there is no Counter-Claim andthe Plaintiffs who have the onus and burden of proving title depending on the strength of their casewould have the suit dismissed if they failed to discharge the burden of proof at the close of eachother???s case.???As we had earlier held and in total agreement with the learned Counsel for the Respondents, thelearned trial Judge was on very firm ground when he ruled that at that juncture of the Preliminaryobjection, the title of the Respondents remained unchallenged and assuming the Defendant afterthis Appeal still refuses to file its statement of Defence, the Respondents who have allegedly put thetitle of the land in issue, shall be required to prove their case and if the Court below is satisfied thatthey have established their title, shall proceed to grant them the Reliefs sought and if they fail to doso their claim would be dismissed."Per AGUBE, J.C.A. (Pp. 73-75, Paras. A-A) - read in context
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22. LAND LAW - FAMILY PROPERTY/LAND: How is family property created and how does land qualifyas a family land"As rightly submitted by the learned Counsel/Respondent that it is a matter for judicial notice thatland and property are owned by an individual or family and that the concept of family property isingrained in our indigenous society and the bedrock of inheritance particularly as it related to landownership. This point was emphasized in Usiobaifo Vs. Usibaifo [2001] F. W. L. R. (Pt.61) 1784 at1799 Per Ibiyeye, JCA who posited in paragraphs D ??? E thereof and rightly too that:???It is settled law that the concept of family property is original to our indigenous society and thebedrock of our law of inheritance. The most common circumstance of creating family property isdeath intestate of land owner, whose estate is governed by Customary law. Such land devolves tohis heirs in perpetuity as family land. Another method of creating family land is by conveyanceintervolves where land is purchased with money belonging to the family: family land can also becreated by the use of the appropriate expression in the Will of the owner of such land. See the casesof Olowosago & Ors. V. Adebanjo & Ors. (1988) 4 NWLR (Pt.88) 275 at 287; Lewis V. Bankole 1 NLR81; and Shaw Vs. Kehinde (1947) 18 NLR 129???.???From the above authorities, it is clear and without doubt that the law recognizes the family as andentity under whose canopy a member or members or through their Attorney an action can bebrought to protect such family property."Per AGUBE, J.C.A. (Pp. 82-83, Paras. C-D) - read in context
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23. LAND LAW - FAMILY PROPERTY/LAND: Nature of land ownership vis-a-vis family property/land"???If the learned Counsel is still in doubt as to the legal personalities behind the Onyeweuekefamily, I wish to draw his attention to the fact that in Efunwape Okulate & 4 Ors. V. GbadamosiAwosanya 2 Ors. [2000] F. W.L R. (Pt. 25) 1666 which was decided several years after the casescited by the learned Counsel, the Appeal was initiated by Efunwape Okulate (For Denike family) the1st Appellant which for the 2nd Appellant, Olarenwaju Ogundipe family and Gbadamosi Awosanya,Adebayo Akilo and Bolaji Akodu were (For themselves and on behalf of the Olisa Family).Again, if the myopic vision of the learned Counsel is yet not cleared, I shall draw his attention to text???AFRICAN INDIGENOUS LAW: PROCEEDINGS OF WORKSHOP BY THE INSTITUTE OF AFRICANSTUDIES UNIVERSITY OF NIGERIA NSUKKA (7 -9 AUGUST, 1974) Edited by Hon. DR. T. O. Elias (ChiefJustice of Nigeria) DR. S. N. Nwabara (Director, Institute of African studies, University of Nigeria,Nsukka) and MR. C. O. Akpamgbo (Lecture in Law, University of Nigeria, Enugu Campus)???Published by the Government Press, Enugu at pages 43 ??? 46 particularly at 43 and 46 when thelearned Hon. Justice M. O. Balonwu in his Essay Captioned: ???THE GROWTH AND DEVELOPMENT. OFINDIGENOUS NIGERIAN LAWS AS PART OF OUR HERITAGE FROM THE BRITISH COLONIAL POLICY OFINDIRECT RULE??????One of the institutions of our indigenous jurisprudence preserved and enforced by the Courts, asa result of the British Policy under consideration, is that of Family Property, as a system of land ???holding being organized on similar structures, Nigerians have a basic and uniform system of landtenure. this is one developed the community principle in the indigenous Nigerian Law. In most, if notall, Nigerian societies, the undivided qua individual, is not entitled to any rights in land, unless he is amember of one or more land owning groups. So individual has to belong to a family household, clan,village, or to some social unit or territorial community before he is entitled to use for his own benefitland which is in control or ownership of such groups???.As if to drum it to ears of deaf and visionless skeptics of the ilk of the learned Counsel who pretendnot to be aware of this State of our indigenous law the learned Hon. Justice made it clear that:???In Nigeria, therefore, it can safely be said that the unit of landholding is the family, not theindividual, that family property is a uniform tenure of land-holding in the whole country (with thepossible exception of the North), which indicates a form of ownership vested in the family asopposed to individual???.See the case of Adagun V. Fagbola Per Kingdom, C. J. (1932) 11 N. L. R. 110 at 111; Miter Bros. V.Ayeni (1924) 4 N. L. R. 40, Per Van Der Muen JSC; Jacobs V. Oladunmi Brothers (1935) 13 NLR 1,Majekodunmi V. Amodu Tijani (1932) 11 N. L. R. 25; Taylor V. Willians (1935) 11 N. L. R. 67 at 69citing Ogunmefun V. Ogunmefun & Others N. L. R. Vol. 10 Page 82) in holding at page 70 of theReport that is until the family structure, with all its incidents of native law and custom, has beenbroken up, the correct view is that at any moment the ownership of the family property is vested inthe whole family property is vested in the whole family as trustees for the whole family.Furthermore, each individual member of the family has in addition vested in him or her what may betermed as a right of user during his/her life. That right is purely life interest which on death of theindividual that interest which on death of the individual that interest reverts to the whole familytoughly reason the user enjoyed by the deceased individual during his or her life time, the family willgenerally permit his or her children to have among them the same user rights as their parent, if thecircumstances of the family permit. See Davies V. Sagunro & Ors. (1936) 13 N. L. R. 15 and Chief EyoITA & Ors V. Asido (1935) 2 W.A.CA. 339 Per Webber, C. J.???Finally, let me comment the immortal dictum of Lord Haldane in the oft-quoted case of AmoduTijani V. Secretary of Southern Nigeria [1921] 2 A. C. 399 at 404,On this subject to the learned Counsel to the Appellant that:???The next fact which it is important to bear in mind in order to understand native land/law is thatthe notion of individual ownership is quite foreign to native ideas land belongs to the community, thevillage or the family, never to the individual. This is pure native custom along the whole length ofthis coast; and whenever we find, as in Lagos individual owners, this is again due to the introductionof English ideas???.???All the cases I had cited were decided by English Judges who recognized the indigenous custom offamily ownership of land which custom is still extant in areas where the English concept ofindividualism has not completely eroded our value systems like the case at hand. In Igbo land whichUmuakaje, Umuseke, Okwudor, Njaba L. G. A of Imo State is, land as was recorded by Dr. Meek in hisBook: Land Law and Custom. In the colonies is conceived to belong to a vast family of which manyare dead, few are living and Countless membersare still unborn. Moreover, it is also necessary to draw the attention of the learned Counsel for theAppellant to the West African Lands Committee Report (Paragraph 91 thereof) where it is statedthat:???A third principle (of land tenure) is that land is considered as still the property of the originalsettler, and thus belonging to the past, the present and the generations to come."Per AGUBE, J.C.A.(Pp. 85-90, Paras. D-B) - read in context
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24. LEGAL PRACTITIONER - AUTHORITY OF COUNSEL: Scope of the authority of counsel acting onbehalf of his client"In Chief Gani Fawehinmi V. Nigerian Bar Association & Ors. No 1 (1989) 4 S. C. N. J. (Pt. 1) 1 at 23,Obaseke, JSC, had held that: ???A legal practitioner cannot be deprived of his rights and privileges bya mere allegation that he is a party when there is no claim or cause of action against him or a provenallegation of infamous conduct in a professional respect???.Earlier at page 21 of the same Report the Emeritus Law Lord had reasoned that: ???The word???represent ??? in the context of legal representation means to act or stand for or be an agent foranother???.???The above cited case arose in the Supreme Court from a Preliminary Objection on the issue ofappearance of Counsel who was equally a Defendant in a case and some of the questions fordetermination were whether a party who is also a legal practitioner can appear for other parties inthe same suit as Counsel and conduct the other parties??? case from the Bar and whether theCounsel/Defendants whose appearances was objected to in the Lower Court should be allowed toappear for another Defendant from the Bar and while in robe, rather than from the well of the Courtand without their gowns.See also Mosheshe General Merchant Ltd. V. Nigeria Steel Products Ltd (1987) 2 NWLR (Pt. 55) 110S.C; Akanbi V. Alao (1989) 3 NWLR (Pt.108) 118 at 141 S.C; Ngwu V. Ozougwu (2001) WRN 26 S. C;Ibon V. Agbi (2004) 6 NWLR (Pt.868) 78 S. C. and FRN V. Adewunmi (2007) 10 NWLR (Pt.1042) 399on the Scope of Counsel???s authority in representing his client."Per AGUBE, J.C.A. (Pp. 49-51, Paras.E-A) - read in context
25. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Whether the issue of jurisdiction mustbe resolved first before hearing a case on the merits???"There is also no doubt that it is now settled without citing of any authority that because of thethresh old nature of jurisdiction, the Court must proceed to determine it before proceeding with thehearing of the matter on the merits and that in so doing it is the case of the Plaintiff as Stated in theoriginating process that determines the jurisdiction of the Court. See Hon. Prof. Chudi Uwazurike &Anor. Vs. Chief Austin Nwachukwu & Anor (2013) MRSCJ (Vol.12) 70 at 84 paras. E ??? I, PerOnnoghen, JSC."Per AGUBE, J.C.A. (Pp. 57-58, Paras. F-B) - read in context
26. PRACTICE AND PROCEDURE - MISNOMER: Whether suing in a wrong name is a misnomer; canthe Supreme Court correct such misnomer???"There is no doubt that in the said case of Agbomagbe Bank Vs. General Manager G. B. Olivant,case, one of the earliest decided on this legal personality and parties to a suit, the Plaintiff in thatcase named the 1st Defendant in the Statement of Claim as ???General Manager, G. B. OlivantLtd.??? and an objection was raised on the grounds that such name was not of a person known tolaw and as such could be sued and therefore ought to be struck out of the suit. it was submitted bythe Plaintiff that the description of the 1st Respondent was a misnomer which could be amended byorder of Court. The Court however held that there were authorities to the effect that in a case ofmisnomer, if application is made for the substitution of proper names by amending the writ thiscould be granted but that in the said case, the 1st Defendant not being a Legal person its name wasstruck out. See however Carlen V. Unijos (1994) 1 NWLR (Pt. 323) 631."Per AGUBE, J.C.A. (Pp. 80-81,Paras. E-C) - read in context
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IGNATIUS IGWE AGUBE, J.C.A. (Delivering the
Leading Judgment): By a writ of Summons dated and
filed the 1st day of April, 2008 and Statement of Claim
dated and filed on the 29th day of July, 2008, the
Respondent (then the Plaintiff) sued the Appellant (then
Defendant) in the High Court of Imo State of Nigeria,
Holden at Nkwere Judicial Division and sought for the
Reliefs following:
“WHEREFORE, the Plaintiff Claims:
(i) The sum of N150,000,000.00 (ONE HUNDRED AND
FIFTY MILLION NAIRA) Only being special and general
damages for trespass by the Defendant into the Plaintiff’s
Land known as and called “ALA IKPA” situate at Umuakje,
Umuseke, Okwuder, Njaba Local Government, Imo State.
PARTICULARS OF SPECIAL DAMAGE:
(a) Cost of dismantling the Communication Mast =
N75,000,000.00
(b) Cost carting the mast away and disposing of the same =
N15,000,00.00
(c) Cost of detoxification of the Land = N10,000, 000.00
(d) Cost of restoration of Land to its Original use and
purpose = N10,000,00
(e) Cost of Professional and ancillary Consultation and
advice relating to the case = N25,000,000.00
“GENERAL
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DAMAGES = N15,000,000.00
“(ii) Perpetual injunction restraining the Defendants,
its servant, agent, privies, assigns or however from
further trespassing into the Plaintiff’s land know as
and called “ALA IKPA” situate at Umuakaje,
Umuseke, Njaba Local Government, Imo State”.
Upon being granted leave to serve the Originating
Processes out of jurisdiction that is Churchgate Towers,
Plot 30 Afribank Street, Victoria Island Lagos, Lagos State,
the Defendant through its Counsel E. E. Chuwuka Esq, filed
a Motion on Notice praying for the Suit to be dismissed for
want of jurisdiction on grounds that:
1. The Suit was not properly constituted.
2. There is no CLAIMANT in the Suit;
the said motion was contested and heard on the 14th of
February, 2011 and adjourned to 6/4/2011 on which date
the learned Trial Judge T. E. CHUKWUEMEKA – CHIKEKA,
J. ruled dismissing same for lacking in merit with
N3,000.00 costs in favour of the Respondent/Plaintiff.
It would appear that the Defendant refused and/or
neglected to file a Defence to claim of the Plaintiff whereby
the Plaintiff brought a motion on Notice pursuant
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to Order 20, Rule 9, of the High Court (Civil Procedure)
Rules, 2008, EX DEBITO JUSTITIAE seeking for the
following Reliefs;
“1. An order of Court entering Judgment for the
Claimant/Applicant in the face of his Statement of
Claim, the Defendant/Respondent having failed,
neglected and/or refused to comply with the rules of
Court by filing its pleadings to the action of the
Claimant.
“2. AND FOR such further or other orders as the
Honourable Court may deem fit to make in the
circumstances of the case.”
The motion which was supported by an Affidavit of thirteen
paragraphs, a written Address and the Affidavit of service
of the originating Processes was dated 18th day of April,
2011 and filed on 19th April, 2011. As usual the learned
Counsel for the Defendant/Respondent upon being served
with the said motion, responded by filing a Notice of
Preliminary objection dated 6th June, 2011 and filed same
date seeking an order dismissing/striking out the Plaintiff’s
suit in limine for want of jurisdiction on the grounds that:
“1. There is nothing to show that the land subject
matter of the suit referred to as “ALA IKPA LAND”
lying
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and situate at Umuakaje, Umuseke, Okwudor Njaba L.
G. A, Imo State is subject of any Statutory/Customary
Right of Occupancy granted or deemed to be granted
by the Governor/Local use Act.
‘2. The Claim or Reliefs sought by the Claimant are
only ancillary reliefs which are not justiable in the
absence of any declaratory relief with regard to title
as per ground one above.
“3. By virtue of grounds one and two above the Court
lacks jurisdiction to adjudicate over the Claims
pursuant to Section 39 and 41 of the Land Use Act.”
In support of the Notice of Preliminary Objection the
Learned Counsel for the Defendant also filed a written
Address therefore. The Learned Counsel for the Plaintiff
upon receipt of the Notice of Preliminary objection filed a
written Address in opposition to same to which the learned
Counsel to the Defendant/Objector filed a Reply Address on
points of Law.
On the 6th day of July, 2011 the Written Addresses were
adopted learned Counsel for the Parties and the Court
adjourned to the 21st day of July, 2011 on which date that
he Ruled at page 1146 of Records that:
“From the
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totality of the above, I hold that the Claim of the
Respondent is proper, this Court has the jurisdiction
to entertain this Suit, the Preliminary Objection of
the Applicant lacks merit and is hereby dismissed
with N5,000.00 cost in favour of the Respondent.''
Aggrieved by the above Ruling, the Defendant/Applicant
gave Notice of Appeal with Two (2 Original Grounds dated
and filed on the 2nd day of December, 2011 and by leave of
this Honourable Court granted on the 26th of November,
2014, the Appellant was allowed to amend the original
Grounds of Appeal by adding Grounds 3 and 4 and to deem
the Additional Grounds as duly filed and served upon
payment of the requisite fees. Below are the Composite
Grounds of Appeal as amended and filed.
“GROUNDS OF APPEAL
GROUND 1 ERROR IN LAW:
The learned trial Judge erred in law when he held that the
Lower Court had jurisdiction to entertain the claim of the
claimant being damages for Trespass and perpetual
injunction without any claim of title to the land or putting
his title in issue.
PARTICULARS OF ERROR:
1. The Defendant/Appellant by way of a Preliminary
Objection challenged the
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competence of the suit on the ground that it is the claim of
Clamant that determines jurisdiction.
2. The Claim of the Claimant or the Relief sought in his
Statement of Claim was only for general and special
damages for trespass to land and perpetual injunction
without more.
3. It was wrong for the learned Trial Judge to hold that it
had jurisdiction to entertain the Suit when the Claimant did
not put his title in Issue.
“GROUND 2 ERROR IN LAW:
The learned trial Judge erred in law when he held that the
Claimant’s title to the land could be deciphered or found in
BODY OF THE Statement of claim even though the
claimant did not specifically ask for such declaration of
title.
PARTICULARS OF ERROR:
1. It is always the Relief(s) claimed at the tail end of a
Statement of Claim that confers jurisdiction on a Court and
not the confers or the body of the State of Claim.
2. The summation of the learned trial Judge in this regard is
tantamount to saying that the Courts can act as a Father
Christmas in certain cases to grant reliefs not specifically
asked for, which is not permissible in law.
“GROUND 3 ERROR
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IN LAW:
The learned trial Judge erred in law when he held in an
earlier
Preliminary Objection on jurisdiction on 6/4/2011 that the
suit was properly constituted after the Defendant/Appellant
in the Court below had contended that the Claimant cannot
be Attorney and a party at the same time in the same Suit.
PARTICULARS OF ERROR:
1. The claimant/Respondent in the Court below is one
Barrister Emeka Emegano. He sued as “Attorney to the
family of Onyewueke of Umuakaje, Umuseke, Okwudor,
Njaba L. G. A of Imo State”. He is also the Claimant.
2. The contention of the Defendant/Appellant at the Court
below was that an Attorney cannot also be a party
(Claimant) in the same Suit.
3. The learned trial Judge thought otherwise and held that
the Attorney can also be a party in the same Suit in spite of
established authorities to the contrary.
“GROUND 4 ERROR IN LAW;
The learned trial Judge erred in law when he in the said
earlier Ruling of 6/4/2011 that “the family of Onyewu being
represented by the Attorney/Claimant is a legal personality.
PARTICULARS OF ERROR:
1. The Appellant had
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earlier contended at the Court below that: “the family
of Onyewueke of Umuakaje” being represented by the
Respondent is not a person known to law and as a
consequence the said Court lacked jurisdiction to
hear the Suit.
2. The learned trial Judge in his Ruling of 6/4/2011
held that there was nothing before the Court showing
that the “Onyewueke family” does not exist or is not a
legal personality”.
3. Authorities abound that “the family of Onyewueke”
or “Onyewueke family” is not a person known to law
who can sue or be sued”.
RELIEFS SOUGHT FROM THE COURT OF APPEAL:
To allow the Appeal and set aside the whole decision made
on 21/11/2011 and on 6/4/2011 and to grant the
Defendant/Appellant’s Application dismissing the
Claimant’s Suit for lack of jurisdiction.
Fo l lowing the t ransmiss ion o f the Record o f
Proceedings/Appeal from the Lower Court to this
Honourable Court, the learned Counsel on behalf of the
parties exchanged their respective Briefs in line with the
Rules of this Court which Briefs were adopted on the 25th
of February, 2016 but owing to national
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assignment this Judgment could not be delivered as at
when due. In the Appellant’s Brief dated the 4th day of
December, 2014 and filed same date, the learned Counsel
for the Appellant E. E. Chukwuka Esq; who settled same
distilled FOUR(4) ISSUES from the Four Grounds of Appeal
as calling determination couched as follows:-
ISSUES FOR DETERMINATION:
“1. Whether the suit as constituted is proper in law
that is to say whether the Plaintiff or Claimant as the
case may be can also be an Attorney in the same Suit?
“2. Whether the Lower Court had jurisdiction to
entertain the Suit Vis-a-viz the Reliefs sought or
Claimed in the Statement of Claim?
“3. Whether the land is specifically claimed by a
Claimant or merely deciphered by a Court from the
body of the statement of claim?
“4. Whether the “family of Onyewueke of Umuakaje”
who the Attorney Claims to be representing in the
said Suit is a person known to law that can sue and be
sued?”
On his party, Emeka Emegano Esq, who settled the Brief of
the Respondent dated 6th January, 2015 but filed on the
11th day of February, 2015,
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nominated/adopted the Issues as distilled by the learned
Counsel for the Appellant. it should also be noted that upon
receipt of the Respondent’s Brief, the learned Counsel for
the Appellant further filed the Appellant’s Reply Brief dated
the 19th day of June, 2015 same date.
Before delving into the Arguments of learned Counsel on
the Issues formulated it is only apt at this juncture to have
a recapitulation of the antecedents of the case leading to
this Appeal. As can be gleaned from the Plaintiff
/Respondent statement of claim, the Plaintiff/Respondent
who is a practicing Lawyer brought this Suit in Lower
Court as Attorney to the members of Onyewueke family of
Umuakaje, Umuseke, Okwudor, Njaba Local Government
Area, of Imo State which Power of Attorney of 25/6/2007
donated to him by the members of the said Onyewueke
family, he sought to rely upon at the trial.
The Plaintiff averred that the Onyebueke family of
Umuakaje, Umuseke Ukwudor are and were at all times
material to the case, the owners in passion from time
within the memory of man all that piece of land known as
and called “ALA IKPA” situate at Umuakaje, Umuseke,
Okwudor,
10
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6) LP
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090(
CA)
Njaba Local Government, Imo State; Nigeria. The Plaintiff
claimed that the said ALA IKPA Land was inherited by them
or devolved on them from their ancestors/forebears who
deforested same and made diverse use of same until the
land got to Onuoha and to Onyewueke the grandfather of
the Plaintiffs who donated the Power of the Attorney to the
named Plaintiff.
He traced the genealogical pedigree of the piece/parcel of
land from Onyewueke who begat :
(1). AWUZIE, who begat Mr. Jerome Onyewueke and
Vincent Onyewueke amongst others;
(2). Emmanuel Onyewueke who begat Uche Onyewueke
amongst others as children;
(3). Illah Onyewueke who was the father of Louis
Onyewueke amongst others;
(4). Celestine Onyewueke (the only surviving Onyewueke
child); and
(5). Basil Onyewueke; who had been using and still use the
land for farming purposes and have reaped and still
reaping economic crops from the land having been in quiet,
peaceable and undisturbed possession of the land until
somet ime in 2007 (prec ise ly June) , when the
Defendant/Appellant trespassed into same and commenced
erection thereon.
It was also the Plaintiff (now Respondent’s)
11
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6) LP
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090(
CA)
case that before the trespass, the land had not been
alienated or dealt with by or in any manner adverse to the
possessory rights of the Onyewueke family, neither was it
pledged to any person whatsoever not sold, portioned or
shared but has always remained in joint possession of the
Onyewueke family. The cause of action was the breaking
and entering into the land and commencement of the
construction of a gigantic and Monstrous Communication
Mast thereon without the leave, consent or authority of the
Plaintiff/Respondent’s leave, consent or authority being
first sought for and had.
The Respondent further alleged that upon the finding’s
discovery of this trespassory act of the Appellant, they
(Plaintiff) cordoned off the piece of land and the area
cleaved for the construction by the Appellant, with palm
fronds (which under Custom and Native Law signifies
traditional injunction for purpose of putting any person on
inquiry that there is a dispute over the said land). The
Appellant rather than taking heed and precaution over the
Native injunction placed on the land by the Plaintiff
contemptuously removed same and committed their
trespassory acts on
12
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6) LP
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090(
CA)
the land. It was further alleged by the Appellant that
Respondent wrote to the Appellant on 26/6/2007 through
their Lawyer delivering a warning the Appellant of the
trespass and demanding a stoppage thereto.
Instead of heeding to the above warning the Appellant used
armed Guards and miscreants to ward of the Respondent
while continuing their trespass on the property of the
Respondent until it completed the construction of the said
Communication mast on the land of the Plaintiff. For the
aforestated reasons, the Appellant wrongfully entered the
said land and taken possession of same and has thereby
trespassed and is still trespassing thereon. Furthermore,
the Respondent has been deprived of the use and
enjoyment of the land and premises and has therefore
suffered loss and damage.
Consequently, the Respondent procured the service of an
Estate Surveyor or Quantity Surveyor and structural
Engineer to do a valuation of the cost of dismantling the
Mast and carting away the materials from the said land as
well as the value of the land and the cost of restoration to
its original use. He pleaded and relied on the Reports
produced by the said
13
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6) LP
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090(
CA)
Engineers and surveyors at the hearing of the Suit as well
as the costs and Drawings and other related documents
from the Defendant pertaining to the mast wrongfully
constructed on the Plaintiff’s land by the Defendant at the
trial. Hence the Claim and Relief’s earlier reproduced as
sought from the Defendant/Appellant.
ARGUMENT OF ISSUES.
ARGUMENT OF LEARNED COUNSEL FOR THE
APPELLANT ON ISSUE NUMBER 1 (ONE):
“WHETHER THE SUIT AS CONSTITUTED IS PROPER
IN LAW THAT IS TO SAY WHETHER PLAINTIFF OR
CLAIMANT AS THE CASE MAY BE CAN SUE AS BOTH
ATTORNEY AND CLAIMANT AT THE SAME TIME IN
THE SAME SUIT?”.
Arguing this Issue, the learned Counsel for the Appellant
pointed out that the Claimant/Respondent sued, as had
been done in the Lower Court, as both Attorney and as
claimant at the same time in the Suit now on Appeal. He
referred us to pages 61 -65 of the Record of Appeal where
the capacity of the Respondent was earlier challenged in
that regard and relied on Timothy Ofodum V. R.S.
Oneacho (Suing as Agent of the Administrator –
General for the Estate of Ernest Egbuna - Deceased)
(1966-67) 10 ENLR 132 was referred to in
14
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6) LP
ELR-41
090(
CA)
submitting that contrary to the above authority cited, the
Attorney instead of Suing in the name of the Donors, sued
in his own name thereby constituting himself as both
Attorney and Claimant, which has rendered the suit now on
appeal incompetent. We were therefore urged to sustain
this contention as prayed by the Appellant even at the
Court below.
For the above submission and prayer, he relied on Order 16
Rule 1 of the Rules of the Supreme Court of England which
provision he reproduced and further contended that to
compound the case, the Respondent was claiming the said
damages according to the said Respondent for trespass by
the Defendant into Plaintiff’s land known as and called
“ALA IKPA”. (Page 18 of the Records refers).
According to learned Counsel for the Appellant, in so
pleading, the Plaintiff/Respondent of Claim (Page 15 of the
Records), the land is no longer that of the “family of
Onyewueke of Umuakaje” but now that of the Plaintiff or
claimant going by the said Claims 1 and 2 of the Statement
of Claim (page 18 of the Records refers).
We were therefore urged to uphold the Appellant’s
contention
15
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6) LP
ELR-41
090(
CA)
that the suit is improperly Constituted in law and therefore
robs the Lower Court of the jurisdiction to entertain same.
ISSUE NUMBER TWO: “WHETHER THE LOWER
COURT HAD JURISDICTION TO ENTERTAIN THE
SUIT VIS-A-VIZ THE RELIEFS SOUGHT OR CLAIMED
IN THE STATEMENT OF CLAIM?”
On this Issue, the learned Counsel for the Appellant
recalled his contention in his preliminary Objection of
6/62012 on behalf of the Appellant that the claim or Reliefs
sought by the claimant were not justifiable and submitted
that it is trite law that the Claim before the Court
determines the jurisdiction and that there was no claim of
title to any land except the Claim for damages and
injunction.
He further recalled that in the said Preliminary Objection
the case, of Integrated Timber and Plywood Products
Ltd. V. Union Bank Nig. Plc. (2006) 12 NWLR
(PT.995) 483 at 489 Ratio 4; was cited in support of his
argument on jurisdiction where the Supreme Court decided
on how the jurisdiction of a Court can be determined in a
given Suit and what ought to be considered by the Court
and what is not necessary to be considered in the
circumstance, Usman V. Baba (2005) 5 NWLR (Pt.
16
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6) LP
ELR-41
090(
CA)
917) 113 Ratio 5 was further relied upon in so submitting
that pursuant to the Supreme Court decision in Integrated
Timber & Plywood Products Ltd. V. UBN Plc. (supra)
and Usman V. Baba (supra), we were urged to look once
again at the Claim or Reliefs of the Respondent at the Court
below in order to determine whether the Court was seised
with the jurisdiction to entertain and determine same.
Alluding still on this point to the dicta of Augustine
Nnamani, JSC in Ranking Udo & Ors. V. Mbiam Obot &
Ors. (1989) 1 NWLR (Pt.95) 59 at 64 Ratio 15 and
Umaru Atu Kalgo, JSC in Odunze V. Nwosu (2007) 13
NWLR (Pt.1050) 1 at 14 Ratio 16, on what is necessary
to be proved in a case for trespass and where the party
goes further to claim damages and injunction what he must
first established before establishing possession; the learned
Counsel for the Appellant submitted that the findings of the
learned Trial Judge in his Ruling at page 112 of the Records
run Counter to the Supreme Court decisions as earlier cited
above.
On the above premises, the learned Counsel argued that
the learned Trial Judge erred in law when he held that “the
Claim for
17
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6) LP
ELR-41
090(
CA)
title” was unchallenged when there was no such claim of
title at the Court below for according the learned Counsel,
what the Court was saying is that it could look through the
body of the Statement of Claim of the Plaintiff. He at that
Juncture recalled the dictum of Chukwuma -Eneh, JSC in
the Odunze V. Nwosu case earlier cited, at pages 1 and 14
Ratio 3, on not sought by parties. Kalio V. Daniel – Kalio
(1975) & S. C. 138; Okeowo V. Miglore (1979) 11 138;
Omoboriowo V. Ajasin (1984) 1 SCNLR 108 at page 46
Paras. F – G; Page 50, Paras. A – B and 53 Paras G – H
; of the Odunze V. Nwosu case (supra) were further
referred to in urging us to uphold their Preliminary
Objection to the effect that the Reliefs sought are not
justifiable in the absence of any claim for title having
regard to the claim in damages and injunction thereof
without more.
ISSUE NUMBER 3: “WHETHER TITLE TO LAND IS
SPECIFICALLY CLAIMED BY A CLAIMANT OR
MERELY DECIPHERED BY A COURT FROM THE
BODY OF THE STATEMENT OF CLAIM?”
On this Issue the learned Counsel submitted that Issue
Number 3 has already been addressed by his argument on
Issue
18
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6) LP
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090(
CA)
Number 2 which he adopted.
ISSUE NUMBER 4: "WHETHER THE “FAMILY OF
O N Y E W U E K E O F U M U A K A J E ” W H O T H E
CLAIMANT/RESPONDENT CLAIMS TO BE
REPRESENTATION IN THE COURT BELOW IS A
PERSON KNOWN TO LAW?”.
The learned Counsel on this Issue also drew our attention
to his contention in the Lower Court that “the Family of
Onyewueke” purportedly represented by the Respondent is
not a person known to law. He referred us to the decisions
of this Honourable Court inMAILAFIA V. VERITAS
INSURANCE (1986) 4 NWLR (Pt.38) 804 Ration 9 and
Emecheta V. Ogueri (1996) 5 NWLR (Pt. 447) 227 at
231, Ratio 9; on who has the capacity to sue and be sued
and further submitted that “the family of Onyewueke”
cannot by any stretch of imagination be said to be an
identifiable legal person or persons in law who can sue or
be sued.
It was therefore contended that the learned Trial Judge
erred in law when he held as he did at page 81 line 21 of
the Records and Page 82 lines 1 & 2 of the Records that the
suit was well constituted when they the Appellants fail to
see how “Onyewueke family” or “the family of Onyewueke”
19
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6) LP
ELR-41
090(
CA)
constitute a legal personality in the light of decided
authorities to the contrary Agbomagbe Bank Ltd. V.
General Manager G. B. Olivant (1961) ALL N. L. R.
116 and Okechukwu & Sons V. Ndah (1967) N. M. L.
R. 368, were finally relied upon in concluding that in the
light of the foregoing, this Court should allow the Appeal
and dismiss the Claimant/Respondent’s Suit for lack of
jurisdiction
ARGUMENTS OF LEARNED COUNSEL FOR THE
RESPONDENT.
ISSUE NUMBER ONE(1):
Reacting to the submissions of the learned Counsel for
Appellant on this Issue, Emeka Emegano, Esq for the
Respondent posited that the suit as constituted in the
Lower Court was competent as every case ought to be
looked at and decide on its peculiar nature and
circumstances. On the argument by the learned Counsel for
Appellant that the Donor of a power of Attorney must sue in
the name of the Donor, he pointed out that the learned
Counsel for the Appellant stated the general principles of
law. He added that before a Court can apply the said
general principle of law out of his head, the nature of
power donated to the Attorney in order to find out the
Scope. For this submission he
20
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6) LP
ELR-41
090(
CA)
relied on the case of DR. Ntia Vs. Jones (2007) ALL
FWLR (Pt.357) 1606 at 1611, Para. E (CA), to further
urge us in consideration of this Appeal to look at the
unchallenged pleadings of the Respondent and the power of
Attorney authorizing the named Plaintiff to bring the
action. Pages 57 – 60 of the Records where the Power of
Attorney is reproduced was drawn to our attention in this
regard.
The learned Counsel for the Appellant noted that upon our
consideration of the said pleadings at pages 15 -18 of the
Records and the Power of Attorney it would be noted that
the Plaintiff was given the powers contained in the said
power of Attorney which are specifically over the land the
subject-matter of the action now on Appeal to institute legal
action, commence, prosecute, enforce, demand, enter into,
defend action and other proceedings in any Court of law in
his name ….”, and so on. He maintained that by the express
and specific donation of the power, the Donee (the
Plaintiff/Respondent herein) can do all the things
authorized in the power of Attorney “in his name or in
the name of any person or groups of
21
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6) LP
ELR-41
090(
CA)
persons selected or appointed by him for the
purpose”, and bringing of action in his names is lawful. We
were therefore urged to hold that the general provisions of
the law that an Attorney or Agent must sue in the Donor’s
name no longer apply in the instant case.
Responding to the citing of the case of Timothy Ofodum
Vs. S. Onyeacho (Suing as Administrator of the Estate
of Ernest Ernest Egbuna Deceased) [1966 -67] 10
ENLR 132, we were urged to disregard the authority as it
deals with the general principle of law and it should not
apply to this case for the reasons already proferred above.
We were also urged to distinguish Dr. Ntia V. Jones from
the instant case as their facts are not the same. He then
explained cases as against the instant case which is specific
and the Plaintiff/Respondent was carrying out the powers
donated to him by the power of Attorney which he could
have instituted in another or group of persons name as he
went the extra-mile of stating his capacity copiously.
Finally on this Issue, he argued that the authorities of
Vulcan Gases Ltd. V. Gesellschaft (2001) FWLR
(Pt.53) 1 and DR. Ntia V. Jones, do not apply as the
22
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6) LP
ELR-41
090(
CA)
action does not in any way suffer from want of locus standi
of the Claimant more so, where the name Claimant is not
an Attorney and Claimant at one and the same time as
alleged the learned Counsel for the Appellant.
On the interpretation of paragraphs which according to
learned Counsel to the Respondent, were the subject of
legal gymnastics by the learned Counsel for the Appellant,
the learned Counsel for the Respondent, submitted that
even upon the assumption but not conceding that there is a
mix-up, that will go only to the issue of whether the
Claimant is entitled to those Claims and not the
competence of the action as constituted. He maintained
that the argument of the learned Counsel for the Appellant
in Paragraphs 3.07 and 3.08 of the Appellant’s Brief of
Argument over looks the position of the Law that once an
Agent or Attorney is appointed, he steps into the stead of
the Donor of Power of Attorney/Principal, as if he is making
the Claims himself. We were in consequence of the above
urged to resolve Issue Number One (1) in the affirmative
and dismiss the Appeal.
ISSUE NUMBER 2 (TWO):
On this Issue which is whether the Lower Court
23
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6) LP
ELR-41
090(
CA)
had the jurisdiction to entertain the suit vis-a-viz the Reliefs
or claim before the Court the learned Counsel answered
the question in the affirmative. Conceded to the general
provisions of Law and the authorities cited by the learned
Counsel for the Appellant in paragraphs 4.05 of the
Appellant’s Brief as well as 4.06 and 4.07. He defined what
is jurisdiction and how it is conferred on a Court as decided
in cases like Oloba V. Akereja (19880 75 at 1 at 21?,
Ademola V. Adetanyo (2005) FWLR (Pt.259) 1977 at
1985, Oloruntoba – Oju Vs. Abdu – Raheem (2009) 13
NWLR (Pt.1157) page? and Sections 6 (6) (b) and 272 of
the Constitution of the Federal Republic of Nigeria, 1999
(as amended), conceding to the learned Counsel to the
Appellants submission that it is to the Writ of Summons and
Statement of Claim that the Court turns in determine
whether it has the requisite jurisdiction.
In so doing, he continued, the Court considers also the
parties, the nature of claim and the subject-matter of the
suit. citing further Madukolu Vs. Nkemdilim (1962) ALL
NLR 567; the learned Counsel stated that the State High
Courts have unlimited Jurisdiction to
24
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6) LP
ELR-41
090(
CA)
hear and determine cases brought before them by
aggrieved parties once it is not caught by any of the
disabilities which would rob them of jurisdiction. In the
instant case, the learned Counsel for Appellant submitted
that there are no such disabilities and accordingly the Trial
Court possessed the requisite jurisdiction to hear and
determine the matter not on Appeal.
He explained the nature of the claim as contained in the
writ of summons and Statement of Claim at pages 1 -3 and
15 – 18 particularly paragraphs 2 – 16 of the claim
submitting on the authority of Sterling Civil Engineering
(Nig.) Ltd. V. AMB. Yahaya (2005) ALL FWLR (Pt.
263) 628 at 646, Para. C, that the claim of the
Respondent was in trespass to land which is actionable at
the person who is in minimal or slight exclusive possession
and title (based on tracing of root) are different and failure
of one does not affect the ability of the other to succeed.
Reacting to the learned Counsel for the Appellant’s
submissions in paragraphs 4.08 and 4.09 of the Appellant’s
Brief and the reliance placed on Ranking Udo & Ors. V.
Mbiam Obot & Ors. (1989) 1 NWLR
25
(201
6) LP
ELR-41
090(
CA)
(Pt.95.) 59 at 64 Ratio 15 Per Nnamani, JSC and Odunze
V. Nwosu (2007) 13 NWLR (Pt.1050) 1 at 14 Ratio 16,
Per Atu Kalgo, JSC regarding claims for trespass and
injunction and the putting of title in Issue and the claim by
the learned Counsel that the finding of the learned Trial
authorities. He submitted that the general position of the
law as stated by the Supreme Court is in respect of the
Claimant succeeding at the conclusion of the case and not
in respect of the competence of the action to rob the trial
Court of jurisdiction to hear and determine the case.
We were urged to disregard the entire arguments of the
learned Counsel for the Appellant on Issue No. 2. Paras.
4.08 – 4.012 of his Brief as they have not addressed the
issue as to whether the Reliefs/Claims of the Respondent
were/are justifiable as constituted in the Lower Court. He
submitted further that the learned Trial Judge after a
careful perusal and appraisal of the facts and application of
the law came to the conclusion that the Court below had
jurisdiction to entertain the suit. It was further submitted
that he demonstrated that the Court below appreciated the
issues before her, she
26
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6) LP
ELR-41
090(
CA)
looked at the claim and statement of claim, articulated the
use by defining trespass from several sources citing cases
to expound it after which she came to the conclusion earlier
quoted. Referring to the locus classicus of Ejike Ugorji V.
Eze (DR.) A. I. Orukogu (2005) ALL FNLR (Pt. 271) 66
at 78 paras. C – E; which the Learned trial Judge cited
amongst others, he submitted that in none of those cases
did either the Supreme Court or the Court of Appeal say
that the action is not maintainable or justiciable but the
Courts rather said that for the Plaintiff to succeed, he must
prove better title than that of the Defendant.
He added that the Supreme Court did not also hold as
purported by the learned Counsel for the Appellant in any
of those cases, that absence of a claim in Declaration of
title makes the action incompetent. In the view of the
learned Counsel for the Respondent, in an action for
trespass, two separate and independent issues must be
considered:
1. Whether the Plaintiff established his actual possession;
and
2. Whether the Defendant trespassed on it (Odumade V.
Ogunaike (2011) ALL FWLR (Pt.506) 529 at 550
refers).
We were
27
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6) LP
ELR-41
090(
CA)
therefore urged to discountence the arguments of the
learned Counsel for the Appellant in paragraphs 4.11 to
4.14 of the Appellant’s Brief as the claims for general and
special damages are proper and in order, as well as the
claim for perpetual injunction and the Court below had the
jurisdiction to entertain the action as constituted on the
maxim “Ubi jus Ibi Remedium” (where ever there is a
wrong, there is a remedy).
Concluding his argument of this Issue, the learned Counsel
for the Respondent insisted that Trespass must be distinctly
founded in damages which the Court has the jurisdiction to
award and grant injunction upon proof thereof unless
where the act of trespass had ceased before the award. The
cases of Udo Vs. Obot and Odunze V. Nwosu (supra), he
insisted are distinguishable from the present case as the
former cases were clear-cut disputes as to title to land. We
were therefore urged to resolve Issue Number 2 against
the Appellant.
Issue Number 3: on this Issue which questions whether
title to land was/is specifically claimed by the claimant or
was/is merely deciphered from the body of the Statement of
claim; the learned
28
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6) LP
ELR-41
090(
CA)
Counsel for the Appellant urged us to strike the said Issue
out as it has no bearing to the case the Appellant having
not joined issues with the Respondent on that point. He
maintained that the Lower Court was right to have held
that the title of the Respondent as claimed was/is
unchallenged on the authority of Ejike Ugorji V. Eze
(DR.) Onukogu (supra) where the Supreme Court made
it clear that once the Defendant claimed to be owner of
land in a case for trespass, then title to the land is put in
issue and in order to succeed the Plaintiff must show better
title than the Defendant.
In the instant case, the learned Counsel/Respondent
reiterated that the Appellant as Defendant has not filed a
Defence to the action of the Respondent (as claimant) nor
has the Appellant laid claim to the ownership of the land in
dispute. Moreover, it was also submitted, the trial Court did
not make any award of any claim in the suit to the
Defendant as the finding of the Lower Court at page 112 of
the Records that it could not draw any inference of any
dispute to title, the claim being unchallenged, does not
mean and cannot be interpreted to mean that the learned
Trial Judge
29
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6) LP
ELR-41
090(
CA)
had awarded a claim of title to the Respondent.
According to the learned Counsel for the Respondent, that
portion of the Ruling of the learned Trial Judge is obiter
dictum and the case of Odunze V. Nwosu (2007) 13
NWLR (Pt. 1050) 1 at 14 Ratio 3; cannot therefore
apply.
ISSUE NUMBER 4 (FOUR):
Reacting to the submission of the learned Counsel for the
Appellant on this Issue which questions whether the family
of Onyewueke of Umuakaje who the Attorney Claims to be
representing in the suit now on appeal is a person known to
law that can sue and be sued; Emegano, Esq answered the
question in the affirmative for purposes of maintenance of
action to protect family property. He went on to state the
definition of a family as decided in Okulate V. Awosanya
(2000) FWLR (Pt. 25) 1066 at 1019 paras C – D;
submitting that it is judicially noticed that land and
property are owned by an individual or a family, the
concept of family property being original to our indigenous
s o c i e t y a n d t h e b e d r o c k o f o u r l a w o f
inheritance.Usiobaifo V. Usiobaifo (2001) FWLR (Pt.
61) 1784 at 1799 para. E. (CA) and the said case on
Appeal to the Supreme Court reported in
30
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6) LP
ELR-41
090(
CA)
(2005) ALL FWLR (250) 131 at 149 (S.C); where Sale of
family land by a members of the family as his was held to
be void was cited in support of the above submission on the
recognition of family as a legal entity for the purpose of
holding or owning land as well as protection of interest
thereof.
Consequently, a member of the family, the family Head or
principle members can sue to protect family land and/or
can donate a power of Attorney to any person to protect
their interest on the family land, he further submitted. In
the l ight o f the foregoing, i t was the learned
Counsel/Respondent’s further submission that the
Appellant cannot therefore contended as he had done in
paragraphs 6.01 – 6-.05 of the Appellant’s Brief of
Argument which content ion according to the
Respondent/Counsel is a gross misconception of the law
relating to family property and inheritance. Okulate V.
Awosanya (supra) at page 1666; where Efunwape
Okulateke brought the action for the Demike family while
Olarenwaju Ogundipe brought for Ogundipe family was
cited as an example supporting the view of the Court below
that there are proper parties in the case now on appeal
31
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6) LP
ELR-41
090(
CA)
before us as can be gleaned from paragraphs 1-6 of the
Statement of claim and the power of Attorney donated to
Respondent by the family and the holding of the Court at
page 81 of the Records where he posed the question which
she answered.
The learned Counsel for the Respondent once more
conceded to the statement of the general principle by the
learned Counsel for the Appellant in paragraph 6.02 of the
Appellant’s Brief but contended that the Appellant failed to
relate same to the instant case except for the academic and
abstract technicality which the said Counsel for the
Appellant latched on in his argument even where the
Appellant has not been misled by the nature of the case nor
has the Appellant suffered any discomfort there from.
He urged us in the quest to do justice to be imbued with
the dictates of equity and reason as dictated by the dictum
of Pats-Acholonu, JSC (of blessed memory) in the case of B.
B. N. V. Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt.
912) 434 at 443 -445; noting that this is a matter that
started in 2008, where of the Appellant has not filed any
defence there to but has rather been filing one objection or
the other
32
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6) LP
ELR-41
090(
CA)
and now this. Appeal in line with the knack of big
corporations to frustrate cases by such frivolous objections
and Appeals as in this case even where they do not have
any defence in law. We were accordingly urged to resolve
this Issue in favour of the Respondent and dismiss the
Appeal as it lacks merit, with substantial costs in favour of
the Respondent.
RESOLUTION OF ISSUES
ISSUE NUMBER ONE (1) :
“WHETHER THE SUIT AS CONSTITUTED IS PROPER
IN LAW THAT IS TO SAY WHETHER THE PLAINTIFF
OR CLAIMANT AS THE CASE MAY BE CAN ALSO BE
AN ATTORNEY IN THE CASE”.
In the resolution of this first issue, I must not fail to remark
that the general position of the Law that where, as in this
case, the Respondent sued in representative capacity of the
family of Onyewueke of Umuakaje, Umuseke, Okwudor,
Njaba, Local Government Area, Imo State, he is the sole
Plaintiff and as has been held in Otapo V. Sunmonu
(1987) 2 NWLR 587, he assumed the position of dominus
Litis until Judgment since he had/has stepped into the
shoes of the Family that donated the Power of Attorney in
his favour to prosecute the matter on their behalf. He only
ceases to have the
33
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6) LP
ELR-41
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powers conferred on him at the end of the case and after
judgment (Okonji V. Njokanma (1989) 4 NWLR 161
refers) and if he happened to abandon the case it was left
for the trial Court to substitute for him one of those
represented as if the substituted member of the family had
been in the action from the time of its commencement.
Accordingly, what is needed in circumstance of where a
party sues in representative capacity is the indication of
such capacity under the party’s name in the title of the suit.
“Thus”, as explained by the learned Author and Senior
Advocate of Nigeria, Fidelis Nwadialo in his Civil Procedure
in Nigerian second Edition, University of Lagos Press, 2000
at Page 116 Citing Re Tottenham (1896) and the Nigeria
cases of Ede V. Udegbo & Ors. (1961) NWLR 9 and Nta
V. Anigbo & Ors. (1972) 5 SC;
“If a party, “A. B.“ is representative Plaintiff for the
members of a Club “X”, he should be mentioned in
the title of the Suit as, “A. B” ... Plaintiff “(On behalf
of himself and members of “X”)”.
The same Statement as to capacity must be
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made in the endorsement of the Writ, in the title and body
of the pleadings” See Ude V. Nwara (1993) 2 NWLR
638.
I am not oblivious of the decision of the Supreme Court in
Vulcan Gases Ltd. Vs Gesellschaft Fur Industries
Gasverwertung A. G. (G. I. V.) (2001) 1 FWLR 1 at 26
paras. D –G Per Iguh, J. S. C.; who in a case where one
Mr. Okunlola as Counsel had without the authority or
Power of Attorney of the Respondent, instituted the action
at the trial Court and an Application was subsequently
brought to substitute learned Counsel’s name with the
Respondent, stated the position of the law thus:
“I think I ought to observe, in the first place, that this
amendment of 24th February, 1997 which was not
opposed in no small way helped to save this
proceeding. This is because, the Donee of a Power of
Attorney or an Agent in the presentation of a Court
suit on action pursuant to his powers must sue in the
name of the Donor or his Principal and not otherwise.