⦿ CASE SUMMARY OF:
Augustine Ndulue v. Nwankwo Ibezim & Anor (2002) – SC
– Juristic persons;
– Party with interest;
1. Nwankwo Ibezim;
2. Rosaline Ibezim;
2002) 12 NWLR (Pt.780) 139;
(2002) 5 S.C (Pt.II) 124;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
* FOR THE APPELLANT
– G. E. Ezeuko, Esq. S.A.N
* FOR THE RESPONDENT
– Chief A. O. Mogboh;
⦿ FACT (as relating to the issues)
The proceedings leading to this appeal were first initiated in the High Court of Justice of the now defunct East Central State of Nigeria, Awka/Amawbia Judicial Division, holden at Awka. Two suits were involved. In suit no. AA/25/74 the plaintiff, suing in a representative capacity for himself and on behalf of the people of Umuori, Neni filed the action against two defendants, a man and his wife who hailed from Amada village, Oraukwu claiming N600.00 damages for trespass and perpetual injunction. In the second suit no. AA/26/74, the same plaintiff in the same representative capacity as in suit AA/25/74 instituted the action against another defendant also from Amada village, Oraukwu claiming N400.00 damages for trespass and perpetual injunction in respect of the same piece of land in dispute. It is important to note that one common feature in both suits is that the plaintiff, although suing in a representative capacity, expressly sued the defendants in their personal capacities. Both actions were on the application of the parties consolidated for the purpose of hearing after pleadings were ordered in the suits and were duly settled, filed and exchanged. The consolidated suits accordingly proceeded to trial and the parties testified on their own behalf and called witnesses. At the end of trial the learned trial Judge, Awogu, J. as he then was entered judgment for the plaintiff against the defendants in each of the consolidated suits.
The defendants’ appeals to the Court of Appeal, Enugu Division in appeal no.CA/E/31/88 against the said judgment of the trial court were dismissed on the 14th day of November, 1991. Their further appeals to this court in appeal no. SC.245/93 were also dismissed, on the 28th day of March, 1995.
As will be observed, the learned trial Judge after entering judgment for the plaintiff in each of the consolidated suits proceeded additionally to order a decree of perpetual injunction against “all persons from Oraukwu” town by themselves, their servants and agents from further acts of trespass into the said land of the plaintiff shown verged yellow in his plan, exhibit E.
The people of Otta and Amada villages of Oraukwu being dissatisfied with this decision applied through their respective representatives for and were granted leave to appeal as interested or affected persons to the Court of Appeal against this order of injunction clamped against the entire Oraukwu town. Similarly, the Oraukwu community as a whole through their representative also applied as affected persons and were granted leave to appeal to the Court of Appeal against the same judgment of the trial court in so far as it pertained to the gratuitous order of perpetual injunction granted against “all persons from Oraukwu.” The said people of Otta and Amada villages of Oraukwu town together with the Oraukwu community duly filed their respective appeals which were subsequently consolidated for the purpose of hearing by the Court of Appeal, Enugu Division. The appeals were at the conclusion of hearing allowed and that portion of the order of injunction granted by the trial court in so far as it affected all persons from Oraukwu was set aside.
It is against this decision of the Court of Appeal that the plaintiff has now appealed to this court.
1. Whether in the light of the pleadings and evidence before the court of trial, the Court of Appeal was right to have set aside the order of injunction made against the entire people of Oraukwu town who were neither parties, nor represented in the suit.
2. Whether the order against “all people of Oraukwu” or “all persons from Oraukwu” was an order made against non-juristic persons.
3. Whether the order made violated the respondents’ right to fair hearing guaranteed to every Nigerian by section 33 of the 1979 constitution and, if it did, what is the effect?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED WITH N10,000 COST]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The claims against all three defendants in the consolidated suits were not only prosecuted in their personal capacities, it was further pleaded in paragraph 2 of the appellant’s amended statement of claim in each suit and admitted in the defendants’ statement of defence that the said defendants were “sued personally”. No issue was therefore raised in the pleadings in both suits as to the capacity in which the defendants were sued. Admittedly, they were sued in their personal capacities and not in any representative capacity whether for and on behalf of the respondents or for and on behalf of any other group or community.
ii. It is also pertinent that no averment of whatever nature was made in the appellant’s statements of claim against the defendants or any other member of Oraukwu community in connection with the acts of trespass which constituted the subject matter of the appellant’s causes of action in the present suits. Neither was it averred that apart from the defendants, the respondents or any other persons from Oraukwu community committed or threatened to commit any unlawful acts of trespass on the land in dispute unless restrained by an order of injunction. It is clear to me that what was before the court were purely personal actions against the defendants in their personal capacities.
iii. In the present case, there is neither a scintilla of evidence nor was it pleaded by the appellant in his statement of claim that the respondents had any battle to fight in the consolidated suits but stood by to see such a battle fought by the defendants in the same interest. The appellant’s causes of action were purely personal against the defendants and neither concerned nor were they connected with any other interests which involved the respondents.
2. The Supreme Court stated that the “people of Oraukwu” are natural persons, hence are juristic personnel. However, since issue 1 was judged in favour of the respondent, this issue 2 becomes unnecessary and speculative. Iguh, JSC, stated, “But as issue 2 is entirely academic and essentially a matter of no consequence in the determination of this appeal having regard to my resolution of issue 1 in favour of the respondents, I must decline to make further comments thereupon.”
3. For ISSUE 3, THE SUPREME COURT HELD, “The Court of Appeal described the above contentions of the respondents as “serious violations of the provisions of section 31(1) of the 1979 constitution which enshrine the right of fair hearing”. I think the Court of Appeal is perfectly right in this conclusion and issue 3 must be resolved in favour of the respondents.”
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
⦿ NOTABLE DICTA
Both parties having filed and exchanged their respective briefs of argument in respect of the appeal, the court was obliged pursuant to the provisions of Order 6 rule 8(6) of the Supreme Court Rules, 1985, as amended, to treat the appeal as having been argued on behalf of the appellant and was considered as such. – Iguh, JSC. Ndulue v. Nwankwo (2002)
This order of the trial court would be justifiable if the respondents are parties to the suits or if from established evidence as pleaded, they are otherwise servants, agents or privies of the defendants in the suits. In this regard, the term “parties” has been defined to include not only those named in the record of proceedings but also those who had direct interest in the subject matter of the dispute and had an opportunity to attend the proceedings and to join as a party in the suit but chose not to do so but were content to stand-by and see the battle in which their interest is directly in issue fought by somebody else or let witnesses testify as to their title to or interest in the subject matter of the action. – Iguh, JSC. Ndulue v. Nwankwo (2002)
The law is settled that where a party asserts the title of a community and the community supported him, the trespass of such a party could be said to be the trespass of the community. – Iguh, JSC. Ndulue v. Nwankwo (2002)
It is also settled that where a person was content to stand by and see his battle fought by someone else in the same interest instead of applying to be joined as a defendant in the case, he is bound by the result in that case and estopped from reopening the issues determined therein. – Iguh, JSC. Ndulue v. Nwankwo (2002)
Where, however, an action is properly instituted in a representative capacity and/or against persons or a community in a representative capacity, that action is not only by or against the named parties, it is also against and by those the named parties represent. And so, even if all the named parties die, the action still subsists on behalf of or against those they represent but who have not been stated nomine but the action cannot be prosecuted or defended until a living person has been substituted for the named dead party. – Iguh, JSC. Ndulue v. Nwankwo (2002)
Where a question before the court is entirely academic or speculative, the appellate court in accordance with the well settled principle of this court will decline to decide the point. – Iguh, JSC. Ndulue v. Nwankwo (2002)