Muo Okafor & Ors V. Sylvanus Ifionu & Anor (1978) LLJR-SC

Muo Okafor & Ors V. Sylvanus Ifionu & Anor (1978)

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SOWEMIMO, J.S.C.

This appeal relates to a judgment by Aseme, J., delivered at the Anambra State High Court, sitting at Awka, on the 22nd of September, 1974. The suit was first filed in the Orumba District Court Grade A in 1963 as suit No. 46/63 and was later transferred to the Onitsha High Court where pleadings were duly ordered. There was an earlier abortive hearing of the case but after the Civil War, the case came before the court and was duly heard and determined. In the District Court Grade A, the plaintiffs who sued for themselves and on behalf of the Agunwaja family of Umunebo Ufuma claimed:-

i. Declaration of title to land known as and called ANAGUIKPA ABO which is shown verged pink on Plan SE. 21A/63

ii. 300 pounds (N600) damages for trespass;

iii. Injunction to restrain the defendants their servants and agents from trespassing on the said land.

When this action was first instituted, the first set of defendants were sued in their personal capacity. In 1964, as a result of a motion brought by the plaintiffs, Okoli Ehi and 3 Others for themselves and on behalf of the people of Akpu, were joined as second set of defendants. In 1973, Chief Geoffrey Oji and Mazi Edmund Otti for themselves and on behalf of Ajalli community, were joined as the 3rd set of defendants. When the case came up for hearing, however, notice of withdrawal was filed against the second set of defendants by the plaintiffs. The 1st set of defendants, later filed an amended.

For the purpose of this appeal, the plaintiffs, who are the appellants before this court will be referred to as the Agunwaja people. The 1st and 3rd sets of defendants will be referred to as the Ajallis and the 2nd set of defendants as the Akpu people.

On the issue joined before the learned trial Judge on the pleadings, the Ajallis claimed that the land belonged to the Akpu people. They relied on the judgments of the High Court of Onitsha from 1942-1948 on which this issue of their relationship to the land was determined. The Agunwaja people, although not parties to the said suits, knew about them but took no part at all to defend the area of land which they now claim. What is strange however, is that although the Akpu people have filed a defence in which they claimed ownership of the land in dispute as against the Agunwaja people, the Agunwaja people decided to withdraw their claim for title, trespass and injunction against the Akpu people.

The case was fought out in the High Court on the basis as to whether the title of the Agunwaja people was established or whether as the defendants, the Ajallis claimed, they were customary tenants of the Akpu people to whom the land belonged. The learned trial Judge who heard this case, in commenting on the evidence of the third plaintiff stated, inter alia, as follows:-

“3rd plaintiff alone gave evidence and no other person from Agunwaja family had denied before me knowledge of the possession and occupation by the Ajallis. The 3rd plaintiff was an unimpressive witness and having watched him give evidence I was convinced from his cross-examination that he was not speaking the truth. The plaintiffs and the Akpus are two neighbouring villages having common boundary with the land in dispute which was part of the subject matter of the litigations between the Ajallis and the Akpus. The plaintiffs chose not to join in the protracted litigations; they took no steps to evince their title ever since the Ajallis had been in possession for many generations. The plaintiffs are therefore guilty of standing by and laches, and if they had succeeded to prove that the land in dispute was theirs I should have still dismissed all the items of their claim on these grounds.”

The learned trial Judge cited two judgments in Volume 14 WACA in support of what he had said.

Earlier on, the learned trial Judge in deciding whether the Agunwaja people authorised the plaintiffs to sue on their behalf in this case, had this to say:-

“In his opening address Mr. Obanye, learned counsel for the plaintiffs for the first time stated that there are three sub-sections of Agunwaja family. This however was not pleaded and it seemed to me clear from the unsatisfactory evidence of the plaintiffs in this respect that the allegation that this action was authorised by those purported to have been represented has not been proved. The same goes to the alleged sub-divisions of the land into Anagwu Ikpa, Anagwu Abo, Nkpoda Ugwu and Ugwu Orie. In the writ and in the Statement of Claim the land in dispute is named Anagwu Ikpa Abo. No such sub-divisions enumerated above were pleaded except that they were shown on the plan and it was admitted in evidence that there are no features demarcating the land into four sections. In my view this sub-division was imaginary. There may be other lands of the plaintiffs bearing these names but these are certainly not the land in dispute, verged pink in Exhibit ‘G. 3rd plaintiff, Emmanuel Egwuonwu Madu gave evidence and the surveyor and two other witnesses were also called.”(underlining ours.)

On appeal before this court, Chief F.R.A. Williams, learned counsel for the appellants submitted that since the learned trial Judge had held that the 3 plaintiffs who sued on behalf of the Agunwaja family were not so authorised by the family, the proper order that should have been made by the Judge was to strike out the claim but not to dismiss it since the Agunwaja family were no longer regarded as parties to the case.illiams, learned counsel for the plaintiffs to argue the point raised by him and since no objection was taken by Mr. Mojekwu, learned counsel for the 1st set of defendants did not agree that it was open to the appellants to raise the point now being raised on the issue of plaintiffs’ capacity to sue since the 1st set of defendants did not challenge the plaintiffs’ authority. Mr. Oji, learned counsel for the 3rd set of defendants contended that the 3rd plaintiff was never cross-examined as regards authority to sue and it was not part of the case the 3rd set of defendants and so the finding of the learned trial Judge as to absence of authority of the plaintiffs to sue, in the capacity in which they sued, should be disregarded. We have allowed Chief F.R.A. counsel for the defendants when Chief Williams made his submissions it is too late in the day for us to reconsider whether he should have been allowed to make the submission or not. We wish to examine the pleadings before the case was heard. In the Statement of Claim filed on behalf of the plaintiffs on 17/10/84, paragraphs 1, 2 and 3 read as follows:-

“1.The Plaintiffs are members of Agunwaja family of Umunebo Ufuma and bring this action for themselves and for the said family.

2. The first set of defendants are natives of Ajalli and are sued personally.
3. The second set of defendants are natives of Akpu and are sued for themselves and as representing the people of Akpu.”

The 3rd set of defendants filed an amended dated 9th of April, 1974 and paragraphs 1, 2 and 3 read:-

“1. Save as hereinafter expressly admitted the 3rd set of defendants deny each and every allegation of facts contained in the Statement of Claim as if the same were set out seriatim and specifically traversed.

2.The 3rd set of defendants not being in a position to admit paragraph 1 of the Statement of Claim put the plaintiffs to their very strict proof thereof.

3. The 3rd set of defendants admit paragraphs 2 and 3 of the Statement of Claim and further say that they are natives of Ajalli and defend this action for themselves and on behalf of the Ajalli Community.”

The 1st set of defendants filed their last amended Statement of Defence on the 29th of April, 1974 and paragraph 1 reads as follows:-

“Save as is hereinafter expressly admitted, the 1st set of Defendants deny each and every allegation of facts contained in plaintiffs’ Statement of Claim as if same were set out seriatim and specifically traversed.

1. 1st set of defendants admit paragraphs 1, 2 and 3 of Statement of Claim.”

The only party who raised the issue of the capacity in which the plaintiffs sued and required a strict proof of their authority to sue is the 3rd set of defendants as in paragraph 1 supra. Although as pointed out by learned counsel for the 3rd set of defendants, they did not cross-examine the plaintiffs as to the capacity in which they sued but following the rule of pleadings, since they did not admit it and went further to plead that such capacity should be strictly proved, it was then an open issue in the nature of a general traverse as regards the capacity in which the plaintiffs sued, and therefore, one requiring determination of the learned trial Judge.

On the other hand, the learned trial Judge from the evidence of the plaintiffs on cross-examination should have seen that the capacity in which the plaintiffs sued was never really challenged. Nevertheless, since the learned trial Judge had held that it was an issue before him, and having considered the evidence of the 3rd plaintiff, who was the only party who gave evidence in support of the capacity and having held that it was unimpressive and unsatisfactory, there was nothing that an appeal court could do about it, especially as there is no cross appeal on the point by the respondents.

This case commenced in 1963 and actual hearing before the learned trial Judge began on the 16th of April, 1974, a period of almost 11 years. We would have thought that the learned trial Judge should have considered what were the issues actually being fought before him and not decide the case on an issue formulated by himself on the pleadings. We would like to make it clear that save for this technical point relating to capacity the findings of the learned trial Judge in this case are amply borne out and justified on the evidence.

We have considered the arguments and submission made before us, as well as the cases cited by Chief F.R.A. Williams, and although we have some misgivings as regards the course taken by the learned trial Judge, we hold however that since (the learned trial Judge) had come to the conclusion, rightly or wrongly, as there is no cross appeal on the issue, that the plaintiffs have no authority of the Agunwaja family to sue on their behalf, he should only have struck out the claims and not dismissed them.

The appeal therefore succeeds. The judgment of the learned trial Judge dismissing the plaintiffs’ claims is hereby set aside including the award of costs. We substitute instead an order striking out the plaintiffs’ claims as against the defendants before him. The appeal will therefore be allowed with costs assessed at N500 in favour of the appellants, the named plaintiffs personally.

Other Citation: (1978) LCN/2071(SC)