Emmanuel T Ayeni & Ors V. William Abiodun Sowemimo (1982)
LawGlobal-Hub Lead Judgment Report
UDO UDOMA, J.S.C.
This is an appeal from the judgment of the Federal Court of Appeal in which the judgment and Order of the High Court of Lagos State, (Williams J.), in favour of the Plaintiff was affirmed.
In this court the judgment has been challenged. It has been attacked on two major grounds directed principally to the state of pleadings in the suit. The grounds of appeal may be stated as follows
(1) The Federal Court of Appeal erred in law in failing to hold that the Plaintiff was bound by the averment contained in paragraph 13 of the statement of claim which showed that the statement of claim disclosed no cause of action.
(2) The Federal Court of Appeal erred in law in failing to uphold the objection of the Appellants that the action was not properly constituted because
(i) The Defendants were sued in their personal capacity whereas the property in dispute is the property of Oponuwa family; and
(ii) The members of Oponuwa family not being before the court or represented it was both improper and inappropriate for the court to have directed a partition of the family property.
For the proper appreciation of the issues raised and argued in the two grounds of appeal before this court, it is necessary, I think, to examine in some detail certain aspects of the relevant portions of the pleadings in the case and the manner in which the matter was dealt with in both the High Court and the Federal Court of Appeal.
In SUIT No. LD/144/74 in the High Court of Lagos State, the claim of the Plaintiff, herein Respondent, against the Defendants, herein Appellants, as endorsed on his writ of summons both as to the parties thereto and the particulars thereof read as are hereunder set forth:
“William Abiodun Sowemimo, (For and on behalf of the children of late
Chief M.A. Sowemimo)…………… Plaintiff
Alhaji Moriamo Somisi, Oyedel Igara Adaraloye, Omotayo Igara
Adaraloye, Peter Akogu Ogunbanwo…………… Defendant(s)
The Plaintiffs claim against the Defendants jointly and severally an order of partition of the house and “landed property situate lying and being at 18 Ladega Street, Idi-Egun, Ikorodu.”
In his statement of claim the Respondent,after setting out in chronological detail the family trees and lines of succession of both the Respondent and the Appellants as descending from a common ancestor, known as Esofoluren, and showing particularly that his grandfather, Sowemimo, and the ancestor of the Appellants, Awoligun, were brothers and members of the Oponuwa family, alleged that the house and landed property, the subject matter of the action, was originally the property of Esofoluren, who had built the said house many years ago; that his ancestors before him had lived in the house aforesaid using the same in common with the ancestors of the Appellants as family property from time immemorial.
Then in paragraphs 9, 13 and 14 of the statement of claim there are to be found the following averments:
“9 – Esofoluren begat Awolegu, Are-Emule, Janguri Odukoya, Sowemimo.
13 – In or about the year 1936 Somisi partitioned the property of Esofoluren at Idi Egun between the children of her father and Sowemimo’s children.
14 – The Plaintiff’s deceased father, Chief M. A. Sowemimo carried out necessary renovation on the property and lived in the apartment allotted to himself and his brothers until his death in the year 1969.
Thereafter the Respondent alleged that after the death of his father himself and his brothers and other relatives continued to live in and occupy peacefully the apartment formerly occupied by his father; that it was only in 1973 that the Appellants, without just cause, broke into the said apartment and forcibly ejected them therefrom and took possession of the same; that in consequence of such forcible ejectment the Appellants were prosecuted and convicted in the Magistrate Court, Ikorodu; but that despite the prosecution and conviction the Respondent and other children of the late Sowemimo are still being prevented from entering into the said house by the Appellants. Hence the claim by the Respondent as set out in paragraph 19 of the statement of claim, which are in the terms following:
“19 – The plaintiff shall seek the Order of Court against the Defendants for a survey of the property in dispute to be carried out with a view to filing a plan of the said property in dispute.”
In their statement of defence the capacity in which the Appellants were defending the suit was altered and the words “for and on behalf of the Oponuwa family” were added after the last named Defendant.
Thereafter, after a general traverse of the averments contained in the statement of claim and the admission of paragraph 2 of the said statement of claim the Appellants pleaded in paragraphs 4, 6, 7, 8 and 9 as follows:
“4- The Defendants admit paragraphs 4, 5, 6, 7, 8, 9 and 11 of the statement of claim save that
(a) With respect to paragraph 4,the Defendants deny that Olugboya was a child of Ogunmolu;
(b) With regard to paragraph 8, the Defendants say that Ore Ige had more than three issues;
(c) With regard to paragraph 9, the Defendants deny that Odukoya and Sowemimo were children of Awolegu; and
“( d) With regard to paragraph 11, ‘the Defendants say that Olakunbi and Ogunbanwo are children of Fabade, a brother to Awolegu.
6 – The Defendants aver that they are members of Oponuwa family and will further contend at the trial that the plaintiff is not a member of the said Oponuwa family, nor a descendant of the Defendant ancestor.
7 – The Defendants will further contend at the trial that the plaintiff’s ancestor was one Matolu who hailed from Igbore in Abeokuta, that Sowemimo Aluko was his great great grandson and the grandfather of the plaintiff .
8 – The Defendants aver that during the life time of Awolegu the 1st, 2nd and 3rd Defendant grandfather, Sowemimo Aluko, a native of Igobroe in Abeokuta was brought to him for treatment, he being a prominent native doctor.
9 – The said Sowemimo then had to be housed with Awolegu who allowed him in (sic) use of one of his rooms in his compound and after his death his son Michael Sowemimo, who came with him was also allowed to continue to stay there. There was no absolute gift of the room to any of them.”
It is noteworthy that apart from the averments contained in paragraphs 7 and 8 of the statement of defence, the issue as to the Improper constitution of the suit in relation to the capacity in which the Appellants were sued, the property in dispute being family property, was not raised in the statement of defence; nor indeed was it pleaded that in view of the averment contained in paragraph 13 of the statement of claim there was no cause of action disclosed by the statement of claim.
Needless to add that it has been necessary to make this observation because, if in fact the Appellants had believed as is now being postulated that the word “partition” was used in the statement of claim in its strict legal sense; or that the Appellants having been wrongly sued in their personal capacity were not prepared to defend the suit because it was wrongly constituted; or if in fact they had been misled in any way or embarrassed or had entertained any doubts in these matters, it seems to me, that it would have been much more satisfactory to have raised promptly these issues in the pleadings; and that would have enabled the Court to have disposed of the matter expeditiously and neatly as preliminary issues in terms of the provisions of Order 22 Rules 2 and 3 of the Rules of the High Court of Lagos State, demurrer having since been abolished. That, however, was not done and the trial proceeded in good faith. Such were the circumstances and the state of affairs in regard to the pleadings filed and delivered in the suit when on 10th June, 1975 the suit went for trial.Thus on the pleadings, as was observed by the learned trial judge, the substantial issue for trial was as to whether or not the Respondent, and those whom he represented, were like the Appellants, and those they represented, were like the Appellants, and those they represented, descendants of Esofoluren and therefore members of the Oponuwa family, which would entitle them to share in the family property, and ultimately to the relief claimed in the suit. In the amended statement of defence put in it was again repeated that the Appellants were defending the suit “for and on behalf of the Oponuwa family.”
Furthermore, the conflicting averments contained in paragraph 7 and 8 of the original statement of defence to the effect that the 1st, 2nd and 3rd Appellants as well as the Respondent originated from a common ancestor named Sowemimo Aluko, a native of Igbore in Abeokuta, were again repeated in paragraph 8 of the amended statement of defence. It is also significant to note, as was pointed out by the Federal Court of Appeal, that the averment contained in paragraph 9 of the statement of claim to the effect that Awolegu, the direct ancestor of the Appellants, and Sowemimo, the direct ancestor of the Respondent were descendants of Esofoluren was admitted in paragraph 4 of the amended statement of defence.
Hearing was concluded on 2nd July, 1975. After reviewing the evidence in the light of the pleadings and examination of the relevant authorities brought to the notice of the Court, the learned trial Judge came to the conclusion that in his judgment the plaintiff was entitled to the Order sought; and, accordingly, ordered that a plan of the house at No. 21 (No. 18 having been corrected in the evidence given) Ladega Street, Idi Egun, Ikorodu be made; that the said plan, when made, be filed in court so as to enable the court to make the requisite order for partition. The court further directed that the plan so ordered, when made, should show the layout of the house in dispute, its component parts and any out-houses used along with it. Thereupon the Appellants by leave appealed to the Federal Court of Appeal. During the pendency of the appeal, the Appellants applied for and were granted leave by the Federal Court of Appeal to substitute Emmanuel Taiwo Ayeni as the 1st Appellant in place of Alhaji Moriamo Somisi, reported dead.
Accompanying the application and as evidence of his authority to make the application there was an affidavit attached to which was also a copy of the minutes of the proceedings of the meeting of the Esofoluren Oponuwa family held on 27th October, 1979. At that meeting, after having received a report of the progress of the suit and of the pending appeal by the Secretary, members of the Oponuwa family unanimously chose Emmanuel Taiwo Ayeni to prosecute the appeal to conclusion in place of Alhaji Moriamo Somisi (deceased) .
In the course of the hearing of the appeal, the Federal Court of Appeal received in evidence the affidavit of Emmanuel Taiwo Aveni together with the accompanying minutes of the meeting of Opanuwa family which contained 33 names listed as being members of the family, ranged against the Respondent and shown as interested in the property and in support of the Appellants. The document was admitted, exhibited and marked Exhibit FCA/L/L by the Federal Court of Appeal after overruling the objection of learned counsel for the Appellant and ruling unanimously that the document was relevant and admissible as showing that “the entire members of the family of Esofoluren Oponuwa” other than the Respondent, “knew about the existence of the proceedings and support the Appellants, who were defending in the trial court.” The appeal having been duly heard, the Federal Court of Appeal in a unanimous decision dismissed it on 27th February, 1980. The Judgment of the Court in which Coker and Mohammed, J.C.A., concurred was delivered by Nnaemeka-Agu, J.C.A. It is from that judgment that this appeal has been brought. In arguing the first ground of appeal, learned Counsel for the Appellant directed the attention of the court to the averments contained in paragraph 13 of the statement of claim and submitted, rather strongly, that by that averment the Respondent had admitted that the property, the subject matter of the suit in hand, had been partitioned in 1936. That being so, it was contended that since, as a general rule, parties to a suit are bound by their pleadings, and any evidence tending to prove the contrary would go to no issue, in the case in hand by the same token any evidence tending to show that there was merely an allotment as distinct from “partition” would go to no issue. Therefore, it was submitted that the Federal Court of Appeal ought to have held that the Respondent’s statement of claim had failed to establish a cause of action. In this connection, learned counsel submitted further that the Federal Court of Appeal misdirected itself as to the role of pleadings when in his judgment Nnaemeka-Agu, J.C.A. had said: “I must also bear in mind the fact that in civil cases pleadings are generally regarded as suggestions of counsel and are not receivable against a party in proof of the truth of the fact stated therein unless verified on oath, or signed by them, or otherwise adopted by them. (For this see Phipson on Evidence (12th Edn.) p. 580 paragraph 1432).”
The contention of learned Counsel was that the above quoted passage constituted a misdirection because the proposition of law stated therein was not applicable to the role of pleadings at the trial of an action but only as to the use to which pleadings might be put as evidence in subsequent proceedings; and that it was therefore wrong for the Federal Court of Appeal to have relied upon such a proposition of law in disposing of the effect of the averment contained in paragraph 13 of the statement of claim. The soundness of this contention as to the role of pleadings at the trial of an action in which such pleadings are filed and delivered cannot be open to doubt. Indeed, this is implied in the passage above quoted, for the expression used in “receivable against the party in proof of the truth stated therein. ” That presupposes that such receipt must be referrable to a subsequent proceeding.
While agreeing with learned Counsel as to the soundness of his submission in this respect, I would like also, If I may, to remind him of the words of Blackall, President of the West African Court of Appeal, in Ukejianya v. Uchendu, 13 W.A.C.A 45 at p. 46 in which the learned President had said: “It seems to me, however, that what this court has to decide is, whether the decision of the Judge was right; not whether his reasons were. It is only if the misdirection had caused him to come to a wrong decision that it would be material. ”
And in fairness to the learned Justice of Appeal, it is but right to observe that before the passage quoted above, he had remarked as follows: “On one hand, I must bear in mind the fact that the statement of claim was filed by the Respondent’s solicitor and that it is the law that when a word is used by a solicitor it is ordinarily deemed to be construed in the technical sense.” (In which such a word is usually understood). It is, of course, a well established principle of law that the pleading of Counsel is binding on the party in the suit in which it is delivered for the purpose of that suit. (See Lewis and Another v. Majekodunmi  1 All N. L. R. 189). Without attempting to lay down any rule of law, I think a distinction ought to be drawn between a non-disclosure of a cause of action and a default or the use of a wrong word or expression or the misues of a word in pleadings. As was said by the West African Court of Appeal in Joseph Oguntokun v. Amodu Rufai 11 W.A.C.A 55 at p. 56, there is nothing to prevent a Defendant in a suit from asking for particulars of any averment contained in a statement of claim even after the statement of defence has been filed and delivered. And where therefore a party omits to set out in descriptive detail an allegation in his statement of claim and his opponent does not apply for particulars, he is entitled to give evidence at the trial of any fact supporting the allegation given by him. So too, it must be, where, as here, a particular word or expression of doubtful connotation is used in a statement of claim and is traversed generally in the statement of defence without any application for particulars. In answer to the submissions of learned counsel for the Appellants, learned counsel for the Respondent submitted that it was clearly understood by both the Appellants and the Respondent before and at the trial that the word “partition” was not used as a technical term in its strict legal sense with all that it connotes : because the Appellants themselves in the course of their testimony at the trial had used the term freely as meaning allotment.
There is no doubt whatsoever that the present controversy relating to the averment contained in paragraph 13 of the Statement of Claim has been occasioned by the imprecise use of the word “partition”. In this connection, I consider it apt to recall the famous observations of Dr. Roget in the Introduction to his “Thesaurus of the English Language”. When the distinguished author in commending the publication to the public had said inter alia: “A misapplied or misapprehended term is sufficient to give rise to fierce and interminable disputes: a misnomer has turned the tide of popular opinion; a “verbal sophism has decided a party question; an artful watchword thrown among combustible materials has kindled the flames of deadly warfare and changed the destiny of an empire.”
That observation explains why it is vitally important that lawyers, in particular, to whom, in my view, words are tools of trade should appreciate the necessity of being careful in their choice of language rather than behave like “Alice and the Looking Glass” of expecting words to mean just what they wish them to mean at any given time because they consider themselves masters of such words.
On the other hand, I believe it is a notorious fact that the term “partition” had been so frequently and freely used among members of extended families among the Yorubas, especially in Lagos, contesting their right to separate portions of landed property originally held either jointly or in common as family property under customary law and which had descended to them from common ancestors that the word now tends to have acquired the flavour of local colloquialism. Such development cannot be ignored. But that of course is no excuse for any lawyer to be sloppy in drafting legal processes and for the failure to use the correct word within a legal con.
Be that as it may, in view of the controversy thus egendered, this court has now been put on an inquiry and must therefore examine the term “partition” more closely so as to determine with precision its true meaning and connotation as a legal concept; and also, so as to ascertain the sense in which it was used by both partIes in the proceedings in hand. The term “partition” would appear not to have received as yet any legal or judicial definition in our system of jurisprudence. Recourse must therefore be had to the received English Law. In the Halsbury’s Laws of England (3rd Ed.) volume 32 page 343 paragraphs 539 and 547, it is stated that the legal term “partition” is applied to the division of land, tenements, and hereditaments belonging to the co-owners, and the allotment among them of parts, so as to put an end to the community of ownership between some or all of them. Such co-owners may be joint tenants, tenants in common, or coparcenars. Partition may be made by agreement where all parties are either sui juris or have power conferred on them either by statute or by an instrument. The parties are such as would be necessary to make assurance inter vivos of each share of the property. Then in Cheshire’s Modern Law of Real Property (12th Edition) by Burn, the learned author, in discussing the Determination of JointTenancy by partition said at p. 217:
“(iii)-Partition is a method whereby the joint possession is disunited, and its effect is to make each former co-tenant separate owner of a specific portion of land, and thus terminate the co-ownership for ever. Instead of holding an undivided share in the whole, each person will hold a share in severalty.”
The learned author then continued: “Before 1926, partition was either voluntary or compulsory. Compulsory partition was abolished in 1925.” (See the repeal of the Partition Acts; L.P.A. 1925, 7th schedule) “Accordingly co-owners may agree between themselves to divide the property into separate shares to be held in individual ownership. The actual amount or position of the land that is to be allotted to each party may be settled by the co-owners themselves, or by an arbitrator selected by them, or even by the drawing of lots. The usual practice is first to enter into a preliminary agreement whereby the co-owners consent to the land being partitioned into allotments convenient to be held in separate ownership and as nearly as possible of equal values, provision being made for the payment of a sum of money to secure equality of partition where it is impossible to give each party land of equal value. When the division has been settled, the last step is for the co-owners to execute that form of conveyance which is appropriate to the interest involved. A deed is necessary in the case of land, but joint tenants must execute a deed of release, while the proper form for tenants in common is a deed of grant.” On the basis of the procedure thus described by the learned author of Cheshire’s Modern Law of Real Property, throughout the conduct of the case on appeal at the court of trial there was produced before that court neither a preliminary agreement of consent to partition, nor as the last step in the process of partition, a deed of conveyance either of release or of grant, as the case may be, entered into by the predecessors in title of the parties to the suit in hand as co-owners. In the circumstances, therefore, it seems clearly incorrect to assert with confidence as has been done before this court, that the word “partition” pleaded in paragraph 13 of the statement of claim was used in its strict legal sense. It must be remembered in this connection that the averment contained in paragraph 13 was in fact traversed generally in the statement of defence; and the evidence subsequently led does not go any way proximate to establishing the essential ingredients of a legal partition. It seems quite plain that the term “partition” as pleaded in paragraph 13 of the statement of claim was not used in its strict legal sense. I am reinforced in this view by the fact that the term was freely flung about by both sides in the course of their testimony before the learned trial judge. For instance, Peter Akogu Ogunbanwo the 1st witness for the Appellants, in the course of his testimony, said: “Michael Ajose Sowemimo lived at the rear of the house during part of his life time. He lived in one room of the house but later he partitioned it into two rooms and his apartment was opposite my room.
There is no doubt whatsoever that the approach of the learned trial judge to the issue of “partition” was realistic and correct. In dealing with the issue the learned trial judge relying on Chief J. O. Lahan and Others vs. Lajoyetan  2 All N. L. R. 207 had held that in his judgment the fact that Ajose was allotted a part of the house did not however prove that the house was partitioned. Such allotment was consistent with use and occupation granted him because he was a member of the family. The Federal Court of Appeal concurred in that conclusion when it held that on the evidence before the lower court on the issue, the learned trail judge was perfectly entitled to have found as he did, that “what took place in or about 1936 was that Ajose was allotted a part of the house, which form (sic) a part of the subject matter of the case, to live in and that that did not prove a partition as such.” There appears to be no justification whatsoever for this court to disturb such concurrent conclusions arrived at after a very careful consideration of all aspects of this matter. This ground of appeal therefore fails. It is rejected.
The second ground of appeal argued was that the Federal Court of Appeal erred in law in failing to uphold the objection of the Appellants that the action was not properly constituted for non joinder in that the Appellants were sued in their personal capacity whereas the property in dispute is the property of Oponuwa family.
In support of this ground, learned counsel drew the attention of the court to the writ of summons and the statement of claim filed by the Respondent as to the capacity in which the Appellants were sued. He then submitted that, it being common ground that the property in dispute is the property of Oponuwa family and that at no time throughout the proceedings was Oponuwa family as such made a party to the suit, it was improper for the learned trial judge to have ordered the partition of the family property. Learned counsel further contended that the Federal Court of Appeal was wrong in law to have upheld the decision of the learned trial judge on the authorities of Ubagu v. Ukachi  1 All N. L. R. 36: and Nana Ofori Ata II v. Nana Abu Bonsu II  A.C. 95 at p. 99 both of which decisions are opposed to and in conflict with the more recent decision of this court in Ekpere v. Aforije  1 All N .L.R. 220, pt. 1. In an interesting argument learned counsel pointed out that Nana Ofori Ata II v. Nana Abu Bonsu II (Supra) was based on Wytcherley v. Andrews (1871) L.R. 2 P and M 327 at p. 328 on the doctrine of estoppel. The principle enunciated in the latter case it should be observed was also followed by the West African Court of Appeal in Okorie Uwalaka and 3 Others v. Ngwuliaku Agba and 3 others 15 W.A.C.A. 63 in which Cousey, J .A. had said with the concurrence of the rest of the court as follows at p. 65: “It has been repeatedly held by this Court and the Courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result and should not be allowed to re-open the case. As Lord Penzance said in Wytcherley v. Andrews 25 L.T.R. 134 at p. 135 ‘That principle is founded on justice and common sense, and is in numerous cases acted upon in the Court of Chancery, where, if the persons interested are too numerous all to be made parties, one or two of a class are allowed to represent their fellows. ” Okorie Uwalaka and 3 Ors v. Ngwuliaku Agba and 3 Ors. (supra) was decided on 4th November, 1955. It was the submission of learned counsel that Ekpere v. Aforije (supra) was rightly decided; and therefore that Ubagu v. Ukachi (supra) be held to have been wrongly decided as the decision is inconsistent with the provisions of Section 117 (6) (a) of the 1963 Constitution of Nigeria, which are reproduced in Section 222 (a) of the 1979 Constitution of Nigeria. It is clear that as presented these are important submissions. They have been most powerfully and smoothly argued before this court. They call for the most serious scrutiny of the presentation of the case and of the conduct of the parties throughout the proceedings, bearing in mind the rules of the High Court of Lagos State. Finally, the examination of the question whether in fact the decision of this Court in Ekpere v. Aforije (supra) is really and truly in conflict with or opposed to Ubagu v. Ukachi (supra) must be undertaken. By way of recapitulation, it is common ground that the property in dispute is the property of Oponuwa family. Although the Appellants were sued in their personal capacity in filing their statement of defence as well as in a subsequent amendment thereto, they altered the basis of the suit, and by way of emphasis, not only described themselves but also put forward themselves as defending the suit “for and on behalf of Oponuwa family” of which they said the Respondent was not a member. The case was fought throughout under the impression that the Appellants represented the members of Oponuwa family other than the Respondents. That fact was established beyond any question by exhibit FCA/L/L already referred to in these proceedings. Nor is it argued that because the Appellants were sued in their personal capacity, the action was not properly constituted on the ground that members of Oponuwa family were neither represented at, nor before the court during the proceedings. When the point was taken before the learned trial judge, as in this Court, reliance was placed on Order 13 rule 14 of the Rules of the High Court of Lagos State, the provisions of which are in the following terms
“14.-Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may with the leave of the court or a judge, sue or be sued, or may be authorised by the Court or a judge in chambers to defend any such cause or matter on behalf or for the benefit of all persons so interested.”
The wording of the rule makes it abundantly clear that the authority to defend a suit in a representative capacity proceeds from the court; and an application for such authority may be made by either side. This is in contrast to the position of the old rules which, while the approval of the court was requisite, the authorization had to be given by the other persons interested in the suit. (See Buraimo Adegbite and Others v. Chief Imam Quadris B. Lawal and Others 12 W.A.C.A. 398). In considering the submission made to him the learned trial judge had said that if an application had been made to him it would not have been refused. But, of course, it was never made. The Respondent having failed or refused to do so, in my view, it was the duty of the Appellants who had held themselves out as champions of the cause of Oponuwa finally to have applied to the court for the authority to defend the suit in a representative capacity. Indeed, they took the first step in that direction by changing the capacity in which they were defending the action; but failed to pursue the matter to its logical conclusion. Having failed to do so, they cannot now be heard to complain on that score under the pre of protecting the interest of a third party, who may be said to have an independent right of appeal, provided such third party can bring himself within the ambit of the provisions of Section 222 (a) of the 1979 Constitution of Nigeria.
The provisions of Section 222 (a) of the 1979 Constitution of Nigeria are as follow”222-Any right of appeal to the Federal Court of Appeal from the decisions of a High Court conferred by this Constitution
(a) Shall be exercisable in the case of civil proceedings at the instance of the party thereto, or with the leave of the High Court or the Federal Court of Appeal at the instance of any other person having an interest in the matters,………………………………..
This part of the provisions of Section 222 (a) would appear to have been lifted wholesale from the provisions of Section 117 (6) (a) of the 1963 Constitution of the Federation, which was the basis of the decision of this Court in Ubagu and Others v. Chief Ukachi and Others (supra). There the High Court of the then Eastern Nigeria had made an Order on the whole people of Awka to vacate a piece of land then in dispute, although the Defendants therein were not sued as representing them. On appeal, it was argued that since the Defendants therein were not sued as representatives of the whole of Awka people, the judge was wrong to have made an Order against the whole of Awka people.
It was held by this Court that the High Court of Eastern Nigeria had no power to direct anybody to defend an action in a representative capacity, but that it was perfectly plain that the Defendants had throughout the whole of the litigation been fighting the battle of Awka community and that the court did not propose to vary the judgment of the High Court at their instance. This court then continued “If any of the other people of Awka consider themselves aggrieved by the Order of the High Court, they are persons having a right of appeal under Section 117 (6) (a) of the Constitution of the Federation and it is for them to exercise that right if they wish to obtain a variation in the judgment of the High Court. ” There then followed the Privy Council’s decision in lkebife Ibeneweka and Others v. Peter Egbuna and Another  1 W.L.R. 219 which learned counsel for the Appellants most gallantly brought to the notice of this Court. There the Privy Council had held that there had never been any unqualified rule of practice that forbade the making of a declaration even when some of the persons interested in the subject of the declaration were not before the court. Where as in that case, the Appellants had decided to make themselves the champions of the rights of those not represented and had fought the case on that basis, and the trial judge had taken the view that the interested parties not represented were in reality fighting the suit, so to say, from behind the hedge, there was no principle of law which disentitled the judge from making a declaration of title in favour of the Respondent as in that case.
Since 1964, this Court has followed religiously the decision in Ubagu and Others v. Chief Ukachi and Others (supra) in at least three cases, namely
(i) Dokubo, Quaker Dokubo and Another v. Chief Davies Bob Manuel and Others  1 All N. L. R. 113;
(ii) Mba Nta and Others v. Anigbo and Others  1 All N.L.R. 74 Pt. 2; and
(iii) Mba Orie and Another v. Okpan Uba and Another (1976) 10 S.C. 123.
It has been contended before this court that the decision in Ubagu and Others v. Chief Ukachi and Others (supra) is opposed to or in conflict with the decision of this court in Ekpere v. Aforije (supra), which is said to have been rightly decided and therefore that the former should no longer be followed. It is necessary therefore to give consideration at this stage to the facts and circumstances present in Ekpere v. Aforije (supra).
It appears that there were at least four separate communities which constituted Jesse Clan in Ekpere v. Aforijie (supra); and that the said Jesse Clan had a Clan Council with its President. It was pleaded in paragraph 10 of the statement of claim in the suit, which was filed by the Mosogan village community that: “The Mosogan village community is one of the communities making up the entire Jesse “Clan, Jesse village community and Onyobru village community are but two other such communities within the said clan.” As endorsed on the writ of summons, the representatives of Mosogan village community as plaintiffs stated that:”By a deed of lease dated 26th September, 1953 and registered as No.7 at page 7 in volume 42 of the Lands Registry, Ibadan but now Benin City in the Mid-Western Region of Nigeria, the elders and people of Jesse purported to demise to the firm of JATHOMAS Rubber Estate of Sapele all that piece or parcel of plaintiffs’ land. ” There was also an allegation of purported consent to assign the residue of the term to the 5th Defendants therein named. It was also alleged in the statement of claim that the conveyance was fraudulent, the perpetrators of the fraud being the representatives of Jesse Clan community, that the land so demised was the property not of Jesse clan community but the exclusive property of Mosogan village community; and that Onyobru village community and Jesse village community had joined in the fraudulent conveyance. The plaintiffs therefore as the representatives of Mosogan village community claimed:
(1) A declaration that the piece or parcel of land so demised is the exclusive property of the plaintiffs and not that of the entire Jesse clan community;
(2) A declaration that the purported assignment to the 5th Defendant is invalid, null and void;
(3) Rectification and or cancellation of the said lease.
The action itself was instituted against:
(1) The 1st and 2nd Defendants therein named as Chiefs and elders and as representatives of Jesse village community of Jesse Clan;
(2) The 3rd and 4th Defendants also therein named as Elders and representatives of Onyobru village community of Jesse clan; and
(3) A third party also named but not necessary to mention for the purpose of this appeal.
It was thus plain that all necessary parties were not made parties to the suit, and, in particular, Jesse clan community with its distinctive clan council and resident alleged to have perpetrated the fraudulent deed of conveyance sought to be rectified and/or cancelled was not made a party to the suit. The clan community was not sued at all. That was clearly a serious omission in the constitution of the suit. It was not a question of capacity or representation or of approval by the Court not having been obtained to defend the action in a representative capacity by persons already before the court as in Ubagu and Others v. Ukachi (supra).
The Jesse clan community was shown to be an entirely separate entity in itself whose representatives could only be decided upon and selected by the community itself. The interest of the clan was shown as distinct and different from the interest of the various other communities. Throughout the proceedings no one appeared to act or represent or fight for or hold himself out as acting on behalf of Jesse clan community as such. The case was not fought by any of the Defendants before the court as a representative or champion of Jesse clan community.
How in those circumstances could the learned trial judge have ordered either the rectification or cancellation of a deed of demise alleged to have been obtained by fraud when the perpetrators of the fraud were not before the court The problem was even aggravated by the fact that to establish fraud the onus is a heavy one indeed. On all counts it was obvious that the action was not properly constituted in that the community which ought to have been sued was not sued at all.
The facts and circumstances of Ekpere v. Aforijie are patently distinguishable from the facts and circumstances of the present case on appeal. The submission that Ekpere v. Aforije is in conflict with Ubagu v. Ukachi (supra) is completely untenable. It is ill founded and must be and is rejected.
For the reasons set out above, I have come to the irresistible conclusion that this appeal must be and it is dismissed as without merit. Costs to the Respondent assessed and fixed at N300.00.