Johnson Ifeacho & Anor V. Inland Medical Company (Nigeria) Limited (1999)
LawGlobal-Hub Lead Judgment Report
FABIYI, J.C.A.
This is an appeal against the ruling of Ernest-Egbuna, J. sitting at Awka High Court, Anambra State of Nigeria delivered on 19-2-98. The learned trial Judge, by the ruling, dismissed the application of the Appellants by which they prayed for an order allowing them to defend the suit and also prosecute their counter-claim “for themselves and on behalf of the Ifeacho and Nwadibie Family of Isiagu-Amikwo Village of Awka”.
For a proper appreciation of the issues at stake in this appeal, it is apt to recapitulate albeit briefly, the background facts of the matter. The stand of the Respondent is that the Government of Anambra State issued a statutory certificate of occupancy over the contested parcel of land within an industrial layout in Awka environ to Inland Group of Companies (Nigeria) Limited. This company, in turn, granted the Respondent an irrevocable power of Attorney in respect of the said parcel of land subject of certificate of occupancy. The Respondent thereafter commenced a building project on the land. The two appellants moved onto the land and physically stopped the Respondent’s workers on site from progressing with further work.
Consequent upon the above position/stance of the Appellants, the Respondent then filed its action claiming damages for trespass and injunction.
The two appellants on record, on their own part, maintain that the land is their family property. Their Ifeacho and Nwadibie family had been farming on the said land from time immemorial through their family members. When the family noticed the presence of the Respondent on the land, the family mandated them to stop any trespasser on the land. They complied as they went to stop the Respondent from further clearing the land preparatory to building a house. It is instructive to note here that the Appellants also counter-claimed for damages for trespass and injunction against the Respondent over the land as well.
After pleadings were exchanged and issues duly joined, the appellants filed a motion in which they prayed:
‘… For an order allowing the named defendants on record to defend and prosecute this suit for themselves and on behalf of all others, the members of Ifeacho and Nwadibie family of Isiagu Amikwo Village, Awka … ‘
The averments in the affidavit of the 1st Appellant in support of their motion point to the fact that the land belonged to their family and not to the appellants personally. In stopping the Respondent from further work on the land, they were acting under the instruction and authority of their family. They asked that the family be made a party to the suit. As well, they maintained that they have the full authority of the family to represent them.
It is also pertinent to give a resume of the ruling of 19- 2-98 now under fire. The trial Judge agreed that the appellants established clearly that the Ifeacho and Nwadibie family mandated the appellants to represent them in the suit. The Trial judge was of the view that since the claim and the counter-claim relates to trespass and injunction such is a challenge to possession and not a challenge to title to the land. That since no title is in issue, the family members have no interest to protect in the subject-matter of the suit and are not parties likely to be affected by the result of the claim for trespass and injunction. The Trial Judge felt that the effect of the application being granted would be that the named defendants would cease to be the only defendants but would appear in this case merely as representatives of their family. That the family would then supplant the named defendants on record.
The above, in a nutshell, contain the rationale of the trial Judge. Such led him to dismiss the application of the appellants for joinder of necessary parties with N500 costs in favour of the Respondent. The stated dismissal of the appellants’ application precipitated this appeal. The notice cum grounds of appeal dated 3-3-98 was filed on 4-3-98. Two grounds of appeal accompanied the said notice of appeal. They read as follows with their particulars:
‘(a) The learned trial Judge erred in law when he refused to allow the defendants on record to defend this suit for themselves and on behalf of Ifeacho and Nwadibie families on the ground that title is not in issue in this suit whereas title is in issue because trespass and injunction were claimed together.’
Particulars of Error
i. The Plaintiff/Respondent having claimed damages for trespass and injunction, whilst the defendants/appellants counter-claimed also for damages for trespass and injunction over the disputed land, title is inexorably in issue.
ii. Since the dispute revolves around which of the parties is in exclusive possession the presumption of law is that the person having a better title to the disputed land is the person in possession.
iii. In the circumstances of this case, the court cannot resolve the question of possession without first resolving the question of who has better title to the disputed land.
iv. The Ifeacho and Nwadibie families having adopted the alleged trespass of the named defendants on record, the Learned Trial Judge ought to have allowed their application to be joined and represented by the named defendants on record.
b. The Learned trial Judge erred in law when he held that if the defendants are allowed to defend the suit as representing Ifeacho and Nwadibie families, then “the Ifeacho and Nwadibie families, to which the 1st and 2nd defendants belong would supplant the 1st and 2nd defendants as defendants in this suit.”
Particulars of Error
i. When an action is commenced and/or continued in representative capacity, both the named parties and those they represent are parties to the action.
ii. If the named defendants are allowed to defend the suit as representing Ifeacho and Nwadibie families, the named defendants are not “supplanted” but are still parties in addition to the parties they represent.
The relief sought from this court is an order allowing the defendants/appellants on record to defend this suit and also prosecute their counter-claim in a representative capacity for themselves and on behalf of Ifeacho and Nwadibie families of Isiagu-Amikwo Village, Awka.
On 21-9-99 when this appeal fell due for hearing, Vin. Nwabueze Esq. (formerly Vin. Agbata) learned Counsel for the appellants, adopted the brief dated 21-12-98 and filed on 4-1-99 on their behalf. He then urged that the appeal be allowed. N.N. Onugha, Learned Counsel for the Respondent, adopted the Respondent’s brief dated 19-2-99 and filed on 22-2-99. He urged that the appeal be dismissed.
As contained on page 3 of the Appellants’ brief, the three issues upon which this appeal must stand or fall are as follows:
“i. Whether from the state of pleadings and affidavit evidence, title is in issue particularly in view of the claim and counter-claim for trespass and injunction in the substantive suit.
ii Whether or not the Ifeacho and Nwadibie family of the appellants are necessary parties to the substantive suit.
iii. What is the effect of commencing and/or continuing a suit in a representative capacity?”
In arguing issue 1 as stated above, Vin. Nwabueze, Learned Counsel for the appellants, submitted that whenever there is a claim as well as a counter-claim for trespass and injunction over a portion of land, title to the said portion of land is inextricably in issue. He referred to the case of Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt.561) 139; (1998) 6 SCNJ 102 at 123.
Learned Counsel further submitted that where there is a dispute as to which of the two persons is in possession, the presumption is that the person having a title to the land is in possession. He referred to Badejo v. Sawe (1984) ANLR 319 at p. 321, Umeobi v. Utukoya (1978) ANLR 140 at p. 153, Anyabunsi v. Ugwunze (1995) 6 NWLR (Pt.401) 255; (1995) 7 SCNJ 55 at p. 67. Learned Counsel finally submitted on issue 1 that the learned trial judge was in error when he held that there is no issue of title in the case and that the family cannot therefore be joined.
On issue 2, Learned Counsel submitted that from the unchallenged affidavit evidence on the record the Ifeacho and Nwadibie family is a necessary party to the suit. He referred to Order 3 Rule 1 of the High Court Rules of Anambra State, 1988 as well as the case of Anabaronye v. Nwadike (1997) 1 NWLR (Pt.482) 374; (1997) 1 SCNJ 161 at p. 166.
Learned Counsel observed that the stated family mandated the Appellants to take action to protect the family interest in the land. He submitted that for any meaningful, effectual and complete adjudication of the question involved the family should be made a party to the suit as they are necessary parties. He referred to the cases of Ige v. Farinde (1994) 7 NWLR (Pt.354) 42: (1994) 7 -8 SCNJ 284 at p. 300: Atunrase v. Sunmola (1985) 1 NWLR (Pt.1) 105; (1985) ANLR 1445 at p. 162: Chinweze v. Masi (1989) ANLR 1 at p. 12.
Learned Counsel, on issue 2, finally submitted that Ifeacho and Nwadibie family is a necessary party to the suit and should therefore be joined as a party.
On issue 3 for determination, Learned Counsel observed that same raises the question of the effect of commencing a suit in a representative capacity. He observed that it is necessary to determine this issue in this appeal because in dismissing the application of the appellants to join the Ifeacho and Nwadibie family and to allow the appellants to defend the suit and also prosecute their counter-claim “for themselves and on behalf of the Ifeacho and Nwadibie family” the learned trial Judge held that to allow the application would amount to the family supplanting the appellants as defendants in the suit. Learned counsel said with greatest respect to the trial Judge, the view expressed by him is an erroneous statement of the law. He cited in aid of his stand point the case of Okotie v. Otugbor (1995) 5 SCNJ 217 at pages 225 – 226.
Learned Counsel finally submitted that the correct position of the law is that if the application is granted, the other members of Ifeacho and Nwadibie family would become parties to this suit in addition to the Appellants who remain the dominis litis until the suit is determined. He urged us to allow the appeal for the reasons that title is in issue in the suit. Ifeacho and Nwadibie family is a necessary party to the suit. In a representative action, both the named parties and those they represent are all parties to the action.
N. N. Onugha, Learned Counsel for the Respondent, on the first issue, observed that none of the parties to the suit directly claimed title both in the claim of the Respondent as well as in the counter-claim of the Appellants. The claim of the Respondent is one based on possession as imbued on them by the certificate of occupancy issued by the Anambra State Government. He referred to the cases of Joshua Ogunleye v Babatayo Oni (1990) 2 NWLR (Pt.135) 745; (1990) ANLR 341 at p. 343 Makanjuola v. Chief Balogun (1989) 3 NWLR (Pt. 108) 192; Savannah Bank of Nigeria Ltd v. Ajilo & Anor (1987) 2 NELR (Pt. 67) 421; (1987) 2 NWLR (Pt.57) 421.
Learned Counsel observed that a relief that is not claimed cannot be granted. He referred to P.C. Imoloame v. WAEC (1992) 11-12 SCNJ 127; (1992) 9 NWLR (Pt.265) 303; Akinbobola v. Plisson Fisko (Nig.) Ltd. (1991) 1 NWLR (Pt. 167) 270 and Hon. Justice A. Ademola v. Chief Harold Sodipo & Ors. (1992) 7 NWLR (Pt.253) 251; (1992) 7 SCNJ 417.
Learned Counsel submitted that title to the said parcel of land, being one in urban area of Awka Capital Territory of Anambra State, is clearly not in issue as title is unequivocally vested by section 1 of the Land Use Act, 1978, in the Military Governor of Anambra State.
On issue 2, learned counsel further contended that since title is not an issue, Ifeacho and Nwadibie family cannot be a necessary party as they have no interest to protect in the subject-matter of the suit.
Learned Counsel referred to issue 3 as being purely academic and of little or no practical help in resolving the issue involved in this appeal. He declined to comment on this issue. He finally urged that the appeal be dismissed on the grounds that title was never in issue in the suit. The stated family is not a necessary party and has no interest to protect in the subject-matter of the suit and is not likely to be affected by the result of the claim whichever way it goes. It is here necessary to point out that Learned Counsel for the Respondent filed a further list of authority vide Order 7 Rule 4- Miscellaneous, Court of Appeal Rules, 1981. He therein cited the case of Alhaji Abdul-Salami Teniola and 5 Ors. v. Alhaji Mustapha Olohunkun (1999) 5 NWLR (pt.602) 280; (1999) 4 SCNJ. 92 at pages 99, 100, 103 and 104 to further depict the importance and purport of the certificate of occupancy which he feels the Respondent relies upon as his sole armour.
My starting point on issue 1 is that there are authorities galore that whenever a claim for trespass to land is coupled with a claim for an injunction, the title of the parties to such land in dispute is automatically put in issue. In Odukwe v. Ogunbiyi (supra) at page 123, Iguh, JSC put it clearly beyond peradventure as follows:
“Without doubt, whenever a claim for trespass to land is coupled with a claim for an injunction, as in the present case, the title of the parties to such land in dispute is automatically put in issue. See Akintola v. Lasupo (1991) 3 NWLR (Pt. 180) 508 at 515. So, too, when two parties are on a piece or parcel of land claiming possession, the possession being disputed, trespass will be at the suit of that one who can show that title to such land is in him.”
In this matter, both the claim of the Respondent and the counter-claim of the appellants relate to trespass and injunction. As such, title is inexorably put in issue. Title is inextricably automatically put in issue. It will be tantamount to an eye wash to find otherwise. The position would have been different if it is trespass simpliciter. The authorities in Umeobi v. Otukoya (supra) at page 153, Anyabuisi v. Ugwunze (supra) at page 67. Badejo v. Sawe (supra) at page 321 are also very much in point as they speak the same language to arrive at the same conclusion.
Without any shred of doubt, title comes into play. The learned trial Judge goofed when he held that there is no issue or title in the case and that the family cannot be joined.
As for the 2nd issue relating to whether or not the Ifeacho and Nwadibie family of the appellants are necessary parties to the substantive suit, it is necessary to refer to Order 3 Rule 1 of the High Court Rules of Anambra State, 1988. It provides as follows:
“Any person in whom a right to relief exists may sue as plaintiff and any person against whom the relief exists may be sued as defendant.”
In Anabaraonye v. Nwadike (supra) at page 166, the Supreme Court pronounced that ‘a necessary party to a case is a person whose presence is necessary for the effectual and complete adjudication of the question involved in the cause or matter.’ In Black’s Law Dictionary, fifth Edition, at page 750 reference is made to ‘joinder of parties’ which is said to be the act or uniting as parties to an action all persons who have the same rights or against whom rights are claimed, as either co-plaintiffs or co-defendants. Non-joinder is at page 751 defined as the omission to join some person as a party to a suit, whether as plaintiff or defendant who ought to have been joined. An omitted party may be added on motion of any party or on Court’s own motion. A necessary party is joined for the effectual and complete adjudication of all the questions involved in the case. The object is so that the party can be bound by the result of the litigation. The aim is to put an end to litigation and not to have two parallel proceedings over the same subject-matter. In Ige v. Farinde (supra) at page 300, the Supreme Court said:
“The aim is to put an end to litigation and not to have two parallel proceedings in which the self-same issue was raised, leading to different and inconsistent results. One other objective in ruling that a person is a necessary party is for him to be bound by the result of the litigation. The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party.”
In Atunrase v. Sunmonu (supra) at p. 162, the Supreme Court sounded a note or warning that ‘the courts have to be extremely careful and rather reluctant and slow in deciding the rights of persons not parties to a pending suit.
In Chinweze v. Masi (supra) at page 12 the Supreme Court further knocked the nail on the head when it pronounced as follows:
“Put in this naked form, it becomes as clear as crystal that the presence of the second defendant is necessary in order to enable the court to effectually and completely adjudicate upon and settle all the questions involved in this case. It will amount to judicial quibbling to refuse to join the second defendant. It is also the policy of the courts to avoid as much as possible a multiplicity of suits. Learned counsel for the appellants submitted that the second defendant should have come by way of third party proceedings or file a separate suit for specific performance. The simple answer to that submission is that the court has a duty to prevent the expensive luxury of having two separate suits where it can by joinder settle the whole matter in one action.”
From the unchallenged and uncontroverted affidavit evidence of the first appellant before the trial court, it is glaring that the family mandated the appellants to go and stop the Respondent’s work on the land. I have already found that title to the land is in issue. The family, no doubt, must be interested in the outcome of the suit. I strongly feel that the family is a necessary party to the suit and should be joined as a party so that all issues in contention can be decided in one fell swoop.
Mr. N. N. Onugha, Learned Counsel for the Respondent, appears to be dealing with the substantive matter for hearing, not point relating to joinder of parties. For he cited the case of Teniola and Ors. v. Olohunkun (supra) at pages 99, 100, 103 and 104; (1999) 5 NWLR (Pt. 602) 280 at p. 299 where it is stated that:
“where the Governor or the Minister (as in this case) had granted a statutory right of occupancy over a piece of land, within the area of his authority, all existing customary rights over that piece of land became extinguished, unless the statutory right so granted is set aside by a court of competent jurisdiction by due process of law. Entry into such a piece of land under the pretext that the person making the forcible entry has a Customary right to do so, is a clear actionable act of trespass.”
I strongly feel that the above position of the law, as stated, is a joker for the respondent herein, all things being equal, at the hearing of the substantive matter in the suit. But in the meantime, all necessary parties should be joined while the Respondent keeps a closer watch over his armour.
I need to touch the last issue briefly and I will be done. It relates to the effect of commencing and/or continuing a suit in a representative capacity. Mr. N. N. Onugha, Learned Counsel for the respondent, swept it aside with a wave of the hand. He thinks it is academic. But I feel otherwise since the learned trial Judge held that to allow the application would amount to the family supplanting the appellants as defendants in the suit. With due diffidence to the Learned trial Judge, such a view is an erroneous statement of the law which led him to arrive at a wrong conclusion and/or stand point. In Okotie v. Olughor (supra) at pages 225 – 226, the Supreme court made an elucidating pronouncement on the point as follows:
“In a representative action, both the named plaintiffs and/or defendants as the case may be and those they represent are parties to the action although the named representative plaintiffs and/or defendants are dominis litis until the suit is determined. And so for the purpose of initiating any process in the representative action, such process must be by and in the name or the named plaintiffs or defendants so long as their mandate from those they represent remains acceptable and uncountermanded … Put differently, when an action is instituted in a representative capacity and/or against persons in a representative capacity, such an action is not only by or against the named plaintiffs or defendants but are also by and against those the named parties represent who are not stated nominee. Those represented, so long as the named parties are in court, are also deemed present at the trial of the action through their representatives.”
In short, in a representative action, both named parties and those represented are all parties to the action. Those represented cannot supplant the dominis litis as erroneously stated by the Trial Judge.
In conclusion, I strongly feel that the appeal is meritorious. The appeal is accordingly allowed by me. I order that the Defendants/Appellants shall defend the suit before the trial Court and also prosecute their counter-claim in a representative capacity for themselves and on behalf of Ifeaeho and Nwadibie family of Isiagu-Amikwo Village, Awka. The Respondent shall pay N1,000 costs to the Appellants.
Other Citations: (1999)LCN/0478(CA)