Chief Shaibu Mamudu Idogierhie V. H.r.h. Chief John Oare Ii, Jp (2005)

LawGlobal-Hub Lead Judgment Report

NGWUTA, J.C.A.

The respondent is the clan Head of Anwai clan. He instituted the action in suit No. HAU/7/98 against the appellant and 9 others. The 1st appellant was sued in his personal capacity, but the other 9 defendants in the suit were each sued in a representative capacity. The claim in the court below is for the following reliefs:

“1. A declaration that the plaintiff is the only person entitled, personally or through agent, to collect customary dues/rents on all of Anwai Communal lands.

2. Perpetual injunction to restrain the 1st defendant by himself, servants, or agents from collecting any customary dues/rents on any part or parts of Anwai communal land.
3. Perpetual injunction to restrain the 2nd-10th defendants by themselves, agents or privies from paying any dues/ rents to the 1st defendant.
4. An order compelling the 1st defendant to account fully for all customary dues, rents or monies paid to, or collected by him on any part or parts of Anwai communal lands from 1990 to date.
5. The sum of N4,452,400.00 (Four million, four hundred and fifty-two thousand, four hundred Naira) being general and special damages for trespass, environmental degradation of Anwai communal land less of customary dues/rents and usurpation of customary rights.”

A memorandum of appearance was filed on behalf of the appellant as defendant but none was filed by any of the 2nd -10th defendants.

The respondent, as plaintiff, and the appellant as 1st defendant, filed and exchanged pleadings. No statement of defence was filed by, or on behalf of, any of the 2nd – 10th defendants. Also the settled records show that none of the 2nd – 10th defendant ever appeared at the trial.

At the trial, the plaintiff (now respondent) testified, and called two other witnesses and closed his case. The 1st defendant (now appellant) gave evidence, called five other witnesses and closed his case. Learned Counsel for the parties addressed the court and in a reserved judgment dated 27/5/01, the trial court found for the respondent in part, ordering that the 1st defendant is therefore ordered to give full account of all rents collected from 2nd to 10th defendants, during the period 1990, till the time the court ordered that the Assistant Chief Registrar High Court of Justice, Auchi should be collecting the rents.”

Aggrieved by the judgment, the appellant appealed against same on 6 grounds, herein reproduced, shorn of their particulars:

“Grounds of Appeal:

1. The judgment is against the weight of evidence.
2. The learned trial Judge erred in law, when he held that he had jurisdiction to hear and adjudicate the case.
3. The learned trial Judge erred in law, in modifying an established custom of the Anwai 4. Community on the issue of entitlement to rents and royalties from land in Anwai.
4. The learned trial Judge erred in law, in making a case distinct and different from that put forward by the parties, particularly the plaintiff.
5. The learned trial Judge erred in finding that the Eworra Development Committee is responsible to the appellant in the discharge of its function of collecting rents and royalties.
6. The trial Judge erred in ordering the appellant to render account of rents and royalties collected since 1990…”

In compliance with the rules of the court the parties, through their counsel, filed and exchanged briefs of argument.

In his brief, deemed filed on 23/1/03, learned Counsel for the appellant isolated four issues from the six grounds of appeal for the court to determine. The four issues are:

“1. Whether, having regards to the facts and the exhibits duly admitted in evidence, the learned trial Judge was right to hold that res judicata was inapplicable to deny him jurisdiction to try this case? (This issue encompasses ground 2 of the appeal.)

2. Whether having rightly found (page 106, line 24-27) that the clan Head was by custom excluded from control of land in the village, the trial court was justified in amending or rewriting the said native law and custom suo motu without any claim to that effect and even entertaining arguments from the parties on the issue. (This issue encompasses ground 3 of the appeal.)
3. Whether the learned trial Judge was right in making out a case for the plaintiff different from the case as per his pleadings and evidence, when he held that a sharing formula be adopted in the use and management of the proceeds from land in Anwai clan between the clan head and the constituent villages. (This issue can be distilled from ground 4)
4. Whether having regards to the evidence led at the trial, the learned trial Judge was right in holding that the defendant who was sued in his personal capacity was liable for the actions of the Eworra Community Development Association and/or the entire Eworra Community? (This issue encompasses grounds 5 and 6)

At the hearing, learned Counsel for the appellant adopted and relied on the appellant’s brief of argument dated 31/7/02, the reply brief dated 20/5/04 and a list of additional authorities dated 15/11/04 and urged us to allow the appeal.

Learned Counsel for the respondent adopted and relied on the respondents’ brief dated 5/4/04. He referred to his notice of preliminary objection dated 3/5/04 and adopted, and relied on his argument pursuant to the said notice in the respondents’ brief of argument. He adopted the issues formulated by the appellant.

In issue one in his brief, learned Counsel for the appellant referred to page 104 lines 20 – 30 of the records for the lower court’s ruling that the issues in this matter and the earlier case of HAU/14/75 in exhibit B are the same, but that the parties to the suit are different in that in exhibit B five persons represented the Anwai Community as there was no clan head when the suit in exh. B was initiated. In the present suit, the plaintiff is the clan head and from this fact the trial court came to the conclusion that the plaintiffs in the two suits are different. Learned Counsel submitted that the holding and observation of the trial court are not in accord with the stilled principles guiding representative actions. Counsel argued that in a representative action, it is not the person acting in a representative capacity that is the real party. He is at best; the agent of the persons he represents. He relied on: Afolabi v. Adekunle (1983) 2 SCNLR 141, (1983) 8 SC 98; Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) at 377 SC. Counsel contended that in suit No. HAU/14/75 as well as in the present suit, the plaintiff is the Anwai Community represented in the former suit by five persons and in this latter case by the clan head. He argued that the 1st defendant/ appellant is privy by blood and office to the 6th defendant in suit No. HAU/14/75. Based on the above, learned Counsel contended that the trial court ought to have upheld the submission on res judication and declined jurisdiction accordingly. He referred us to the following cases: