➥ CASE SUMMARY OF:
Dr. Augustine N. Mozie & Ors. v. Chike Mbamalu & Ors. (2006) – SC
by “PipAr” Branham-Paul C. Chima.
Supreme Court – S.C. 345/2001
➥ JUDGEMENT DELIVERED ON:
Friday, the 14th day of July 2006
➥ AREA(S) OF LAW
Allotment of land.
➥ PRINCIPLES OF LAW
⦿ PROLIFERATION OF ISSUES IS CONDEMNED
The appellants formulated eight issues for determination, while the respondents formulated four issues. I will not reproduce the twelve issues here. I do not have such space. But I have enough space to ask what are eight issues doing in an appeal that has only five grounds of appeal? This Court has condemned proliferation of issues. As a matter of procedure, issues should not outnumber grounds of appeal. This is because issues are framed from one or more grounds of appeal, preferably more than one ground of appeal. The reverse position is the practice and it is that grounds of appeal outnumber issues. See generally Attorney-General Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Farouk (1990) 2 NWLR (Pt. 131) 137; Anonk Lodge Hotels Ltd, v. Mercantile Bank of Nigeria Ltd (1993) 3 NWLR (Pt. 284) 72. — Niki Tobi, JSC.
⦿ COMPETENCE TO FILE AN ACTION IS AN ISSUE OF JURISDICTION
The competence of a person to file an action relates to jurisdiction and it can be raised in this Court. The respondents cannot shut out the appellants from raising the issue merely because “the issue was very well expressed by the learned trial Judge in his judgment.” That law is strange to me, if it is law at all. — Niki Tobi, JSC.
⦿ A PARTY CANNOT CANVASS ARGUMENT OUTSIDE OF ISSUES FRAMED
It is clear that both issues are confined to the competence of the plaintiffs/respondents to sue in the matter. As they do not extend to the competence of the defendants/appellants to defend the action, I shall not go there. This is because parties are, bound by the issues formulated in their briefs. In other words, a party cannot advance an argument outside the issue or issues formulated in the brief without leave of Court. This stems from the larger ambit of our adjectival law that parties are, bound by their briefs. — Niki Tobi, JSC.
⦿ REPRESENTATIVE ACTION IS A RULE OF CONVENIENCE – HISTORY OF THE PRACTICE
Assuming that I am wrong and the action ought to have been instituted in a representative capacity, what is the position of the law? The rule as to representative actions was derived from the Court of Chancery in England, which required the presence of all parties to an action so as to put an end to the matters in controversy. See Anatogu v. Attorney General of Eastern Nigeria (1976) 11 SC 109. The rule has been described as a “rule of convenience only.” See Hamisu v. Abergavenny (Marquis of) (1887) 3 TLR 324 at 324. As a rule that was originated for convenience, and for the sake of convenience, it has been relaxed, (see Bedford (Duke of) v. Ellis (1901) AC 1 at page 8). As a rule of convenience, it is a matter, which ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice. See Anatogu v. Attorney General of Eastern Nigeria. In other words, Courts of law should not myopically follow the rule rigidly and fall into a big ditch and find themselves in a state of mirage where it becomes impossible to retrace their steps to do justice in a given case. On the contrary, Courts of law should invoke the rule where it is convenient to do so to assist them in doing justice in a given case. It is this aspect of doing justice in a case that vindicates the element of convenience built into the rule. The rule is not cut-and-dry. After all, justice is paramount in the judicial process. It is the cynosure of the process. — Niki Tobi, JSC.
⦿ A REPLY BRIEF CAN ONLY CONTAIN REPLIES TO NEW ISSUES RAISED BY RESPONDENT
It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or arguments raised in the respondent’s brief call for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right, any lacuna or error in the appellant’s brief. — Niki Tobi, JSC.
⦿ FOR REPRESENTATIVE INTEREST, THERE MUST BE COMMON INTEREST
Another aspect of the law on representative action is that the persons who are to be represented and the persons representing them must have the same interest. In other words, both must have a common interest and a common grievance. Accordingly, where there is a common interest and a common grievance, a representative action will be in order. See Bedford (Duke of) v. Ellis (1910) AC 1 at page 8. — Niki Tobi, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Niki Tobi, JSC
⦿ FOR THE APPELLANT
Chief Tochukwu Onwugbufor, SAN.
⦿ FOR THE RESPONDENT
Mr. Ben Anachebe.
➥ CASE FACT/HISTORY
The plaintiffs and the defendants belong to Omenu family of Ogbunike which family owned a parcel of land called Ana Owelle. The members of the family used the land in common for farming. A portion of it however was reserved for residential buildings. The practice was that any male adult member of the family who wanted a land for a building applied for and was given a plot upon payment of a token sum of one hundred Naira. In December, 1977, the 1st defendant, at an informal meeting of Omenu family in the house of the 3rd defendant applied in writing to be granted four plots of land to build a cottage hospital. The request of the 1st defendant was granted. In 1978, the membership of the Omenu family land Committee was reconstituted. The re-constitution brought in the 1st defendant and 2nd to 6th defendants as members of the land Committee. The four plots of land granted to 1st defendant was as depicted on a plan No MG AN/245/86 Ref. To Plan No E.C.A. S4/79, which was deposited by 1st defendant at the Surveyor-General’s office, Enugu. Surprisingly however, the 1st defendant cleared more than the four plots granted him by the family and laid the foundation for a building. The 5th defendant at a family meeting raised the matter but the 1st defendant assured the members that he was not taking more than the four plots granted him by the Omenu family. The family demanded to see a copy of the plan of the land surveyed by the 1st defendant. He promised to produce it later. The 2nd defendant later told a meeting of Omenu family members that six plots and not four were granted to the 1st defendant. However, it was later discovered that 1st defendant was granted 28 plots of land measuring 1,824 hectares instead of the four plots authorised by the family. It was discovered that the 1st defendant had colluded with 2nd to 6th defendants to have 28 plots instead of four allocated to himself. It was in these circumstances that the plaintiffs brought their suit.
The parties filed and exchanged pleadings after which the suit was tried by Amaizu J. (as he then was). On 14-07-95, the trial judge dismissed the plaintiffs’ claims in their entirety. Dissatisfied, the plaintiffs brought an appeal before the Court of Appeal Enugu Division (i.e. the Court below). On 14/6/2001, the Court below, in a unanimous judgment allowed the appeal. The judgment of the trial Court was set aside and the reliefs sought by the plaintiffs before the trial Court were granted. The Defendants were aggrieved by the judgment of the Court below. They have come before this Court on a final appeal.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the Court below was right in castigating and reversing the submission of the learned Counsel for the defendants/appellants that as none of the plaintiffs/respondents was head of the family and sued in their individual rights, the action was wrongly or improperly constituted and incompetent?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT ANY MEMBER CAN SUE FOR FAMILY PROPERTY
“It is good law that members of a family can sue in respect of family property. This was the position of the two Courts below and they are right. In Dadi v. Garba (1995) 8 NWLR (Pt. 411) 12, this Court held that a member of a family has capacity to sue to protect family property. Similarly in Babayeju v. Chief Ashamu (1998) 9 NWLR (Pt. 567) 546, this Court also held that any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest whether with the consent or without the consent of the other members of the family, for if he does not act he may find himself being held to be standing by when his rights were being taken away. See also Ugwu v. Agba (1977) 10 SC, 27; Melifonwu v. Egbuyi (1982) 9SC; Orogan v. Soremekun (1986) 5 NWLR (Pt. 44) 688; Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275; Odeneye v. Efunuga (1970) 7 NWLR (Pt. 164) 618.”
“It is in the light of the above authorities that I am unable to agree with the submission of learned Senior Advocate for the appellants that the plaintiffs/respondents ought to have commenced the action in a representative capacity and not in their personal capacity. And what is more, learned Senior Advocate did not see the need to file a cross-appeal against the judgment of the learned trial Judge on the issue.”
II. Whether the 1st appellant was allocated only four plots or an indefinite or unlimited number of plots?
A. NO EVIDENCE THAT 1ST APPELLANT WAS GRANTED UNLIMITED PLOTS
“The evidential burden of proof that the 1st appellant was allocated indefinite number of plots shifts to the appellants after the respondents proved that only four plots were allocated to the 1st appellant. See sections 136 and 137 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria. See also Balogun. v. Labiran (1988) 3 NWLR (Pt. 80) 66; Usman v. Jusfa (1997) 1 NWLR (Pt. 483) 525; Braimah v. Abasi (1998) 13 NWLR (Pt. 581) 167; Eboade v. Atomesin (1997) 5 NWLR (Pt. 506) 490.”
“I do not see any evidence on the part of the 1st appellant that he applied and was granted an unlimited number of plots. By the last sentence above, it is clear that the authority to grant number of plots of land to the 1st appellant was with the family of the respondents, as in his own words, “I left it open for the authorities in the family to decide on the area that will meet my needs.” In the exercise of their authority, the family decided on four plots. I ask: why the furore? After all, the “authorities in the family” in the context of the evidence of 1st appellant gave final stamp or provided the final stamp and it is four plots. Period or full stop.”
“The above evidence apart, it is not the usual practice for families to allocate unspecified or unlimited plots of land to persons. The usual practice is that specific number of plots is allocated to persons in need. And that is the case of the respondents. The case of the appellants is a very tall one beyond the tallest human being on earth, and this Court cannot reach that height. Where a practice has been for a very long period, probably competing with time immemorial, the burden is on the party taking the contrary position to lead evidence that the practice was not followed intentionally. I do not see any such evidence on the part of the appellants.”
“In sum the appeal fails and it is dismissed. The judgment of Court of Appeal is affirmed. I award N10, 000.00 costs in favour of the respondents.”
➥ MISCELLANEOUS POINTS
**George Adesola Oguntade, J.S.C:
✓ LEAVE OF COURT IS NECESSARY FOR THE PLAINTIFF/RESPONDENT TO SUE
“It seems to me that the two Courts below had both overlooked the necessity for a person suing for and on behalf of a land owning family or community to obtain the leave of the Court to sue in a representative capacity. The question is not whether a member of a family cannot sue to protect family rights in a land. Nobody would argue that such a member could not sue. But where he does, he needs to obtain the leave of the Court. It is of course true, that the Courts have been generous in the grant of the order to bring a representative action where the facts justify it. Even where the leave was not sought or granted, a Court may see the case as a representative action if, satisfied that the action in its nature was fought by the parties in representative capacities. See Jeremiah Nsima v. Ole Nnaji & Ors.  All N.L.R. 459; Bulai & Anor. v. Omoyajowo 1968 N.M.L.R. 160 & Adekunle & Anor.  8S.C. at pp. 102 to 104.”
“It seems to me that, on the undisputed facts before the two Courts below, the major problem with plaintiffs’ suit as constituted, was the failure to join as parties to the action, the Omenu family. On the facts presented, the 2nd to 6th defendants were no more than mere agents to the Omenu family. They were merely retained to mark out the lands for applicants to whom the family had made allocation. On those facts, only the Omenu family could say categorically how much land it granted to the 1st defendant. Since the land belonged to the family, it was only the family, which could decide whether or not to bring an action to defend its ownership of the land. The plaintiffs on record had sued in their individual names. They had not stated the number of members that constituted the Omenu family. It was not therefore known if they constituted the majority. On the knowledge which was available, the three plaintiffs could only have been a minority within the family since the 1st to 6th defendants who contended that the land was validly granted to the 1st defendant are also members of the Omenu family and there were six of them. Even if the 1st defendant had taken more land than was granted him, the Omenu family by its principal heads and majority of its members might still decide not to sue its own members to Court over the grant of land to another member. The clear implication is that the Omenu family was a necessary party to the suit.”
✓ FAILURE TO JOIN THE OMENU FAMILY IS CATASTROPHIC TO THE SUIT
“Now, what makes a person a necessary party to an action? The important or paramount consideration is to make the party bound by the result and to ensure that all matters in controversy are resolved in the suit. Without joining the Omenu family, it became impossible to enforce the decision of the Court in the suit against them. Further, since the land belongs to them, it was not possible to resolve the issue in controversy as to whether or not the family granted four plots or more to the 1st defendant. The injury in respect of which the plaintiffs sought a relief by their suit was done to the Omenu family. If the only problem with the plaintiffs’ suit was the omission to obtain leave, it would have been possible for the Court below and this Court to overlook the omission once satisfied that the true character of the suit was a representative action. More than that however, the failure to join the Omenu family must have a catastrophic effect on plaintiffs’ suit.”
“Further, the suit was brought against 2nd to 6th defendants as members of the land allocation Committee of the Omenu family. The result is that the Omenu family, which was the owner of the land in dispute, was not made a party to the suit. Was it not possible that the majority of the Omenu family did not approve that the plaintiffs initiate the suit? As the appellants’ Counsel put the situation, what we have in this case is a group of Omenu family members suing other members of Omenu family who were in the land allocation Committee. Suppose the Omenu family had in fact authorised the 2nd to 6th defendants to give the land in dispute to the 1st defendant. It has to be borne in mind in this connection that the principal heads of the Omenu family have in fact executed Deeds of transfer of the land to the 1st defendant and a certificate of occupancy issued in his favour.”
✓ BURDEN IS ON THE PLAINTIFF/RESPONDENT TO SHOW IT DID NOT GRANT 4 PLOTS TO THE APPELLANT
“I do not agree that the 1st defendant in this case had the burden to prove that he was granted more than four plots of land. The law is that, it is a plaintiff whose case must fail, if evidence is not called, that must lead evidence in proof of his case. The situation only changes if there are admissions made by a defendant on the pleadings.”
** Mahmud Mohammed, J.S.C:
✓ THE PLAINTIFF/RESPONDENTS FAILED TO SHOW THAT THEY HAVE THE MANDATE TO SUE FOR THE OMENU FAMILY
“With utmost respect to the learned senior Counsel to the respondents, the respondents not having shown on their Writ of Summons and the Statement of Claim that they had the mandate or authority of the Omenu family, the identity of whose head had not been disclosed throughout the proceedings at the trial Court, the Court below and even in this Court to bring the action, the issue questioning their locus standi to bring the action cannot be an academic exercise. The question to be determined in this issue is whether the respondents as plaintiffs who in their action claimed a number of declaratory and injunctive reliefs against the appellants as defendants, had the locus standi to do so particularly when all the defendants in the action except one, are members of the same Omenu family, the owner of the land, the subject matter of the dispute in the case. The law is clear that when a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justifiable. See Senator Adesanya v. President of Nigeria & Anor (1981) 2 NCLR 358.
Therefore taking into consideration all the circumstances surrounding the institution of this action by the respondents, I entirely agree with my learned brother, Oguntade J.S.C. in his judgment that the trial Court was deprived of the jurisdiction to adjudicate and determine the dispute between the parties. In a situation such as this, the proper order to make is to strike out the action after allowing the appeal on this issue of competence alone.”
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ REPRESENTATIVE ACTION: COURT WILL NOT UPTURN JUDGEMENT BECAUSE LEAVE WAS NOT SOUGHT
In Wiri v. Wuche (1980) 1-2 SC 1, this Court dealt exhaustively on representative actions. In the case, the Court said: “The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and the authority of those they represent, this Court does not and will not upset a judgment of the lower Court merely on a bare objection of failure to obtain the approval of the Court.” The Court had earlier said at page 18 of the Report: “There is no doubt that the authority for plaintiffs to sue on behalf of a community must come from that community and the order for leave to prosecute on behalf of a community under the rules of the High Court of Eastern Nigeria must come from the Court (and, here, we are in agreement with the decision in Oguchi v. Egbuchi (Supra) (see also the decision of the High Court of Eastern Region in Nsima v. Ole Nnaji and others (1961) 1 All NLR 441; otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity.” It was after the Court made the above statement that it came to the conclusion that the Court will not upset a judgment of a trial Judge merely on a bare objection of failure to obtain the approval of the Court. The decision of this Court in Wiri v. Wuche comes to this: although leave is necessary at the trial Court to sue in a representative capacity, an appellate Court will not upset the judgment merely because such leave was not obtained in the trial Court.
⦿ FAILURE TO OBTAIN LEAVE TO SUE IN REPRESENTATIVE CAPACITY WILL NOT VITIATE PROCEEDINGS
In Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 342, the Court held that where a plaintiff institutes an action in a representative capacity, leave of Court to sue in representative capacity is superfluous. See also Ifekwe v. Madu (2000) 14 NWLR (Pt. 688) 459, where the Court also held that failure to obtain the leave of Court to sue in a representative capacity is not fatal as to vitiate the proceedings. The Court cannot therefore strike out or dismiss an action just because the plaintiff did not obtain the leave of the Court to sue in a representative capacity, as this will defeat the justice of the case. See also Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587.
➥ REFERENCED (OTHERS)