Mba Orie & Anor V. Okpan Uba & Anor (1976)

LawGlobal-Hub Lead Judgment Report

A. O. OBASEKI, Ag. J.S.C. 

The appellants were defendants, in the court below – the High Court of the former East Central State holden at Umuahia, to a claim instituted by the respondents for:”(a) A declaration that the plaintiffs as the lineal descendants of Nna Okpan Uba, who was the first person to bring into his possession and ownership Ekike, Ugwu-Otugba and Ngele-Aturu lands are by Nkporo Native Law and Custom entitled to half share of farm strips in any year these pieces or parcels of land are farmed.

(b) 40 (forty pounds) being half the total rental value of these lands farmed this year (1971) by the defendants who excluded and denied the plaintiffs their right”.
The 2nd appellant was on his own motion joined as 2nd defendant.

The action came up for hearing before Aniagolu, J. (as he then was), who after hearing evidence adduced by the 1st plaintiff and his witness and hearing the defendants electing to rest their case on the evidence so adduced, gave a considered judgment in which (1) he granted the declaration of right to farm, but only on a smaller area than that claimed in the first arm of the claim (i.e. claim (a) and (2) he dismissed the second arm of the claim.

The declaration was made by the learned trial Judge in the following terms:

“The court is satisfied, on the evidence that the plaintiffs are entitled to farm 1 3/4 part of each of the land in dispute in this case, each farming season in which the particular land is being farmed, leaving 2 1/4 part to the defendants’ family and that this ratio approximates to 7 to 9-7 parts to the plaintiffs and 9 parts to the defendants’ family.

The plaintiffs have discharged the onus of proof placed on them in respect of this proportion.  Accordingly, it is hereby declared that the plaintiffs as the partrilineal descendants of Nna Okpan Uba, in accordance with the Native Law and Custom of Nkporo, are entitled to farm 1 3/4 part of each of the three lands Ekike, Ugwu-Otuguga and Ngele-Aturo lands clearly shown and delineated in the plaintiffs plan, Exhibit 1, as against the defendants 2 1/4 part.  This is approximately 7 to 9 for the plaintiffs and defendants respectively”.

Against this declaration, this appeal has been brought on the following grounds:

“(1)  That the learned trial Judge erred in law in making a declaration in favour of the plaintiffs not in terms of their pleadings, there being no amendment of the said pleadings at any time before judgment.
(2)    That the learned trial Judge erred in law in making a declaration against the defendants, a declaration which would affect the interests of other members of the matrilineal family of the 1st defendants the Nde Ngbocha family in spite of the evidence led by the plaintiffs that there were other members of the said Nde Ngbocha family living at Nkporo at the time of the suit who were not parties to this suit”.

It was common ground and no issues were raised by the pleadings as to

(1)The identity of the land – the subject-matter of the action

(2) The fact that the land was originally acquired by purchase by Nna Okpan Uba.

(3) That the title to the lands bought by Okpan Uba devolved on Okpan Uba’s maternal family when Okpan died.

(4)That 1st defendant became head of the matrilineal family although defendants gave the name of the family as Biasu instead of Nde Ngbocha.

The defendants raised the issue of relationship in paragraphs 5 and 6 of the Statement of Defence and the issue of entitlement to half or any portion of the land in paragraph 9 of the Statement of Defence. Paragraphs 7 and 8 of the Statement of Claim read:

“7.The first plaintiff is the lineal descendant of Nna Okpan Uba who was his patrilineal ancestor. Nna Okpan Uba begat two males namely, Uba Okpan and Okuji Okpan. Uba Okpan begat the 1st plaintiff, Nduka, Uba and Ifegwu Uba. Okuji Okpan begat Okpan Okuji, Ikpa Okuji, Ogba Okuji and Anya Okuji all living. Nna Okpan Uba had a half brother on the father side by name Agu Uba. Agu Uba is the father of the second plaintiff. Nna Okpan while he lived, enjoyed the lands in dispute with his half brother, Agu Mba and their children.

8.By Nkporo Native Law and Custom, the radical title to land descends matrilineally, but when it comes to its uses, that is for farming purposes, members of the patrilineal family of the person who purchased the land and brought it in the matrilineal family are entitled to one half share”.

The defendants in paragraphs 5, 6 and 9 of the Statement of Defence pleaded to these averments as follows:

“5.    The defendants admit paragraph 7 of the Statement of Claim only to the extent that Okpan Uba had a son called Uba Okpan. The defendants deny the rest of the paragraph and will put the plaintiffs to the strictest proof.

6.     In further answer to paragraph 7 of the Statement of Claim, the defendants aver that Okpan who brought the lands the subject-matter of this suit (hereinafter called the lands in dispute) was not the same Okpan who was the grandfather of the 1st plaintiff nor was he the Okpan who was the half brother of 2nd plaintiff’s father Agu Okpan.  Okpan who bought the lands in dispute and Okpan who was the grandfather of the 1st plaintiff and half brother of the 2nd plaintiffs father were different persons.  The father of the Okpan who was the grandfather of the first plaintiff was one Iwo whereas the Okpan who bought the land in dispute was called Uba.  To differentiate between the two, Okpan who bought the lands in dispute was normally called Okpan Ukwu. But both Okpans lived at Nde Okpo, Elugwu Nkporo.

9.   The defendants deny paragraph 7 of the Statement of Claim and aver that Native Law and Custom of Nkporo people is that both the radical title and the user of the lands descend matrilineally and that members of the maternal family, if they give some portions of such land to members of the paternal family, they do so as a matter of grace.  The members of the paternal family have no enforceable rights over such lands”.

The 1st plaintiff gave evidence in proof of his claim and in support of their averments in the Statement of Claim.  His evidence established their geneology and their descent from Okpan Uba and relationship with 1st defendant as head of the matrilineal family on whom title to the lands the subject-matter of the action devolved.

The plaintiffs called Chief Iro Ogbu, P.W.1, the head of Elugba Nkporo.  He gave evidence touching on the custom of Nkporo as regards title to land and devolution of title and other interests in land.  Testifying and in answer to a question he said:

“The custom is that if one bought land and later dies, patrilineal and matrilineal relations would go into the land, divide into two and each section would farm half”.

On the ancestor of the plaintiffs, he said:

“One Okpan Uba was ancestor of the plaintiffs.  It is not true that their ancestor was one Okpan Iwo”.

In answer to a question from the court on the relative share of each side of the farm, the witness said:

“If there are 4 pieces of land the plaintiffs would get something like 1 1/4 be while the defendants get 21/4 “.

Uka Mba, P.W.2 also gave evidence as plaintiffs witness.  Testifying on the shares of the land each branch of the family is entitled to farm on, he said:

“Each time the land is to be farmed, the plaintiffs and the defendants would go into the land.  If the lands had 16 pieces, the defendants would take 9 while the plaintiffs would take 7”.
On the relationship of the parties, he said:

“It was the grandfather of the plaintiffs who bought the three pieces of land.  The 1st defendant is a maternal relation of the plaintiffs grandfather ….  The reason is because the plaintiffs are sons while the defendants are maternal relations.  During the life time of the father of the 2nd defendant, I was farming the lands with both the plaintiffs and the defendants.  The father of the 2nd defendant is called Ochi Onuga”.

We observe therefore that there was ample and indeed overwhelming evidence to support the findings of the learned trial Judge that the parties are related as claimed by the plaintiffs and that 2nd defendant as a maternal relation of the plaintiffs’ grandfather and his father before him has farmed on the land previously.

Turning to the grounds of appeal, the learned counsel for the appellant dealing with ground 1 submitted that the declaration made in favour of the respondents to farm on 1 1/4  part of each of the three lands Ekike, Ugwu-Otuguga and Ngele-Aturu lands delineated in Plan Exhibit 1 as against the defendants 2 1/4 part is at variance with the respondents claim in his writ of summons and Statement of Claim.

We are unable to accept the learned counsel submission as well founded in view of the fact that there was uncontradicted evidence that the relevant custom demands that the lands be split into two on every farming season for farming purposes and that while the bigger half is allocated to the appellants the smaller half is given to the respondents.  The difference in the area farmed on by each branch of the family does not constitute a variation of a case put up in the pleadings.

In any case, it is settled rule of law and practice that a party is entitled to judgment for any part of his claim proved to the satisfaction of the court. There is a long line of cases on this statement of the law and we find no substance whatever in this Ground of Appeal.

The arguments put before us in support of ground 2 is that the rights of other members of the family of Nde Ngbocha were affected by the declaration granted despite the fact that they were not made parties to the action.  The learned counsel further submitted that since they were not made parties and the defendants/appellants were not sued in a representative capacity on behalf of the family, the declaration should have been refused or in the alternative made against the defendants in their personal capacity.

We observe that this objection was not raised in the court below and that the whole of the present case from the beginning to the end including the pleadings was fought on the basis that the defendants were defending the action in such representative capacity.  We therefore think it too late and not open to the defendants named on the writ to complain, as is being done in this case, that other persons apart from themselves have been included in the scope of the judgment. This court had occasion to make a similar observation in the case of Dokubo v. Bob-Manuel (1967) 1 All NLR 113 at 121 and recently in the case of Mba Nta & Ors. v. Ede Nweke Anigbo & Anor (1972) 5 S.C.156 at 174-175.
In the case of Dokubo v. Bob-Manuel, this court said (Coker, JSC., delivering the judgment) at p. 121:

“It was also submitted that the defendants were not properly before the court as representing the Quaker Bob-Manuel sub-house in that an order for them to defend in a representative capacity for Quaker sub-house was not formally obtained and that an order for possession ought not to be made against the sub-house as a whole.  For this submission, reliance was placed upon the case of Buraimoh Adegbite v. Lawal (1948) 12 WACA 398.  The argument overlooks the point that the whole of the present case from the beginning to the end including the pleadings was fought on the basis that the defendants were defending the action in such representative capacity whereas in the case relied upon objection was taken.  Furthermore, it was for the defendants under the provisions of Order 4 Rule 3 of the Eastern Nigeria High Court Rules to obtain the requisite order and at no stage of the proceedings did they suggest that they were not so representing the Quaker Bob-Manuel sub-house and in our own view, it is now too late for them to take this point. On this point, we would refer to the following observations of this court in the case of Osomagbo Ubagu & 15 Ors. v. Chief Ozonechi Okachi & 4 Ors. FSC 484/63 delivered on the 20th February 1964:

‘The High Court of Eastern Nigeria has no power to direct any body to defend an action in a representative capacity but it is perfectly plain that the defendants have throughout the whole of this litigation been fighting the battle of Awha Community and we do not propose to vary the judgment of the High Court at their instance.  If any of the other people of Awha consider themselves aggrieved by the order of the High Court, they are persons having a right of appeal under S.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 of the judgment of the High Court’.”

This point was further emphasised when the case of Mba Nta & Ors. v. Ede Nweke Anigbo & Anor. (supra) at p. 175, Coker, JSC., delivering the judgment of this court commented as follows:

“If those named care to do so, they may ask for a representative order.  If they do not, the court is entitled to give judgment according to the evidence and the nature of the case.  If there are parties aggrieved as being caught within the case when they were not by name made parties thereto, they have a right of appeal under our Constitution and we think it right to argue that it is not open to the defendant named on the writ to complain as is being done in this case that other persons apart from himself have been included in the scope of the judgment”.

We observe that the learned trial Judge, quite correctly and properly considered it unnecessary and outside his powers to amend suo motu and refused to succumb to the temptation to amend the title to the suit to reflect the defendant’s representative capacity without any application. Ground 2 also fails and the appeal, having failed as a whole, is hereby dismissed with costs to the respondents in this court assessed at N135.00.

Other Citation: (1976) LCN/2258(SC)