The Registered Trustees of Ahmadiyya Mission Nigeria V. Baba Mallam Sule (2001)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

This is an appeal by the plaintiff against the judgment of G. G. I. Ojiako, J., of the Imo State High Court, sitting at Owerri, wherein the plaintiff’s action was dismissed in its entirety. The plaintiff, acting through its attorney, Ali Onuoha, had taken out a writ of summons against the defendants jointly and severally claiming damages for acts of trespass allegedly committed by them on various occasions on its parcel of land, which it referred to as No. 16/18 Nekede Street, Owerri. It had also sought an order of injunction to restrain the defendants from committing further acts of trespass on the land.

This is one appeal that ought never to have been brought. It is manifestly lacking in merit. The plaintiff, through its attorney and the learned counsel that appeared for it in the court below, expressly and by very strong implication, conceded that the very basis upon which it had premised its action against the defendants was non-existent.

It conceded at the hearing in the Court below, contrary to its claim on its writ of summons and in the statement of claim, that it neither owned nor was in exclusive possession of the land in respect of which it had sued the defendants in trespass. It conceded, also contrary to its pleadings, that it owned the land in common, and was in joint possession of it, with the defendants. The learned trial Judge merely put his judicial approval and authority on these concessions and did the only right thing to be done: dismiss the action.

The plaintiffs case on its pleading was that the land in dispute belonged to it by virtue of a deed of conveyance executed in its favour by the 3rd to 5th defendants. The deed was admitted in evidence as Exh. D. The plaintiff claimed to be in exclusive possession when the defendants allegedly committed the acts of trespass complained of. The only two witnesses who testified on its behalf, PW1 being its attorney, did not know whether or not the 3rd – 5th defendants were in a position to convey the land to the plaintiff as they purported to do. They infact, knew nothing about the ownership of the land and, therefore, were unable to prove that the land belonged to the plaintiff.

As to possession of the land for the purposes of the claim for trespass, the plaintiff never challenged the witnesses called by the defence to show that the land was communal land. DW3 was one of the representatives of Owerri people who had allocated the land, of which the parcel in dispute formed a part, to the Hausa Muslim community, who later accommodated the Yoruba Muslim community thereon. This witness made it clear that the land was allocated to them as a community and not to any individual or group of individuals.

Indeed, the plaintiffs counsel expressly stated this to be the true state of affairs. In the court below, the learned Judge recorded counsel’s address thus at page 2 of the record:

“Exhibit “D” shows the title to the land granted to the purchasers by the two vendors as representatives of the Yoruba community of the Hausa-Yoruba quarters Owerri. Refers to paragraph 2 of statement of claim which he says was admitted by defendants in paragraph 2 of the statement of defence. Says that the nature of the grant by the Owerri Nchi Ise was to the Hausa-Yoruba community.

Submits that the grant was to the Hausa-Yoruba community and not to individuals and so the land is a communal land. Being communal land individual occupants had only right of occupancy under communal lands and not right of ownership. Cites Nigerian Land Law by Nwabueze P. 149 paragraph 2. (Italics mine).

Based on this submission, the learned Judge put the following question to counsel and received the following answer from him at page 63:

“Q. Has the vendors (Yoruba community) right to sell any portion of the land granted to the Hausa-Yoruba Muslim community by the Owerri indegenes?

Ans. In the absence of any clear partition, none of the Muslim communities can sell any portion.” (Italics mine).

This question-and-answer session between the Judge and counsel brought the realization to the latter that his case was doomed to failure. He therefore shifted position and urged the court to non suit the plaintiff instead of dismissing the action should the court find, as it was bound to find, that the 3rd-5th defendants had no right to convey the land as they purported to have done. An order of non-suit would, in his submission, be appropriate since the defendants had not disputed that the plaintiff owned at least No. 18, Nekede Road.

Naturally enough, counsel for the defence opposed that application, pointing out that an order of non-suit would be inappropriate since the case had been fully heard on the merits. Counsel cited in support Enang v. Okono & Anor. (1962) 2 SCNLR 283; (1962) 1 All NLR 530, and Gbajor v. Ogunburegui (1962) 1 All NLR 853. The court in its judgment, delivered on 27/6/85, declined to do as urged by the plaintiffs counsel and instead dismissed the action. On the plaintiff’s claim to title it held at pages 68 – 60: