The Registered Trustees of Ahmadiyya Mission Nigeria V. Baba Mallam Sule (2001)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
This is an appeal by the plaintiff against the judgment of G. G. I. Ojiako, J., of the Imo State High Court, sitting at Owerri, wherein the plaintiff’s action was dismissed in its entirety. The plaintiff, acting through its attorney, Ali Onuoha, had taken out a writ of summons against the defendants jointly and severally claiming damages for acts of trespass allegedly committed by them on various occasions on its parcel of land, which it referred to as No. 16/18 Nekede Street, Owerri. It had also sought an order of injunction to restrain the defendants from committing further acts of trespass on the land.
This is one appeal that ought never to have been brought. It is manifestly lacking in merit. The plaintiff, through its attorney and the learned counsel that appeared for it in the court below, expressly and by very strong implication, conceded that the very basis upon which it had premised its action against the defendants was non-existent.
It conceded at the hearing in the Court below, contrary to its claim on its writ of summons and in the statement of claim, that it neither owned nor was in exclusive possession of the land in respect of which it had sued the defendants in trespass. It conceded, also contrary to its pleadings, that it owned the land in common, and was in joint possession of it, with the defendants. The learned trial Judge merely put his judicial approval and authority on these concessions and did the only right thing to be done: dismiss the action.
The plaintiffs case on its pleading was that the land in dispute belonged to it by virtue of a deed of conveyance executed in its favour by the 3rd to 5th defendants. The deed was admitted in evidence as Exh. D. The plaintiff claimed to be in exclusive possession when the defendants allegedly committed the acts of trespass complained of. The only two witnesses who testified on its behalf, PW1 being its attorney, did not know whether or not the 3rd – 5th defendants were in a position to convey the land to the plaintiff as they purported to do. They infact, knew nothing about the ownership of the land and, therefore, were unable to prove that the land belonged to the plaintiff.
As to possession of the land for the purposes of the claim for trespass, the plaintiff never challenged the witnesses called by the defence to show that the land was communal land. DW3 was one of the representatives of Owerri people who had allocated the land, of which the parcel in dispute formed a part, to the Hausa Muslim community, who later accommodated the Yoruba Muslim community thereon. This witness made it clear that the land was allocated to them as a community and not to any individual or group of individuals.
Indeed, the plaintiffs counsel expressly stated this to be the true state of affairs. In the court below, the learned Judge recorded counsel’s address thus at page 2 of the record:
“Exhibit “D” shows the title to the land granted to the purchasers by the two vendors as representatives of the Yoruba community of the Hausa-Yoruba quarters Owerri. Refers to paragraph 2 of statement of claim which he says was admitted by defendants in paragraph 2 of the statement of defence. Says that the nature of the grant by the Owerri Nchi Ise was to the Hausa-Yoruba community.
Submits that the grant was to the Hausa-Yoruba community and not to individuals and so the land is a communal land. Being communal land individual occupants had only right of occupancy under communal lands and not right of ownership. Cites Nigerian Land Law by Nwabueze P. 149 paragraph 2. (Italics mine).
Based on this submission, the learned Judge put the following question to counsel and received the following answer from him at page 63:
“Q. Has the vendors (Yoruba community) right to sell any portion of the land granted to the Hausa-Yoruba Muslim community by the Owerri indegenes?
Ans. In the absence of any clear partition, none of the Muslim communities can sell any portion.” (Italics mine).
This question-and-answer session between the Judge and counsel brought the realization to the latter that his case was doomed to failure. He therefore shifted position and urged the court to non suit the plaintiff instead of dismissing the action should the court find, as it was bound to find, that the 3rd-5th defendants had no right to convey the land as they purported to have done. An order of non-suit would, in his submission, be appropriate since the defendants had not disputed that the plaintiff owned at least No. 18, Nekede Road.
Naturally enough, counsel for the defence opposed that application, pointing out that an order of non-suit would be inappropriate since the case had been fully heard on the merits. Counsel cited in support Enang v. Okono & Anor. (1962) 2 SCNLR 283; (1962) 1 All NLR 530, and Gbajor v. Ogunburegui (1962) 1 All NLR 853. The court in its judgment, delivered on 27/6/85, declined to do as urged by the plaintiffs counsel and instead dismissed the action. On the plaintiff’s claim to title it held at pages 68 – 60:
“The plaintiffs went nowhere near proving that those who conveyed plots 16/18 Nekede Road had any right to do so. This was made worse by their joining, as defendants two of their purported grantors (3rd and 4th defendants) who should have been their witnesses…
…The grantors of Plots 16/18 to the plaintiffs had no right to do so because they had no exclusive title whatsoever to the two plots of land. Nemo dat qui (sic) non habet.
The plaintiffs’ transferor’s claim in the communal property of the Hausa-Yoruba Muslim community is adverse and repugnant to the claim of the entire community as the plaintiff’s transferors cannot part with any part of the communal land in any way whatsoever without the consent and concurrence of the other members of the community or their representatives. The deed, Exhibit “D”, is tainted with deceit and is void and of no effect.”
On the plaintiff’s claim for damages for trespass and ejectment the court held at page 69 that:-
“The defendants, who are part and parcel of the Hausa-Yoruba community which community, has a valid possessory title to the entire Hausa-Yoruba quarters at Nekede Road, Owerri, as co-owners of the said quarters cannot be sued successfully in trespass nor can they be refrained from entering any part of the quarters until there is a definite partition of the entire area by the different ethnic Muslim groups now occupying the place. The plaintiff’s claim for order of ejectment therefore has no basis.”
Then on p. 70, the learned Judge concluded his judgment:
“To sum up, the plaintiffs have failed to establish any case of trespass against the defendants. The plaintiff’s claim for trespass and perpetual injunction against the defendants and ejectment of all or any of the defendants from plots 16/18 Nekede Road, Owerri, therefore fails and is hereby dismissed.”
Against these manifestly unassailable findings and conclusions, the plaintiff filed a notice of appeal to this court on one original ground, with leave of court three additional grounds were later filed. Out of these four grounds Mr. I. F. Ajijola formulated three issues for determination as follows.
“1. Whether the trial Judge ought to have restrained the defendants and ordered the ejectment of the defendants in the light of his findings that the land in dispute was communal land.
2, Whether the use of the land by the plaintiff as joint-owners or co-owners for the building of a place of worship (i.e. Mosque) the purpose for which the land was granted amounted to an ouster and/or act of trespass.
- Whether the plaintiffs were entitled to succeed on their claims having regard to the evidence adduced at the trial.”
Chief P. O. Kalu, who settled the respondents’ brief, criticized these issues as not arising from the pleadings. He formulated three of his own, which are themselves open to the objection that they are rather dilatory and do not hit the heart of the controversy as defined by the complaints in the grounds of appeal.
Considering the judgment appealed from and the grounds of appeal therefrom, I think all three issues formulated on behalf of the appellant can be moulded into the single question whether or not the learned Judge was right in the circumstances in dismissing the plaintiff’s action as he did.
As I have indicated, the answer should be an unhesitating YES.
The Judge was unquestionably right in dismissing the action in its entirety having regard to the fact that the plaintiff conceded to the defendants the two most crucial points upon which its case was based.
Firstly, it conceded, as has been seen, that the 3rd – 5th defendants had no power to convey the land in dispute, thus making the purported conveyance null and void and of no effect whatsoever. Counsel emphasised this point in the amended appellant’s brief at pp. 1- 2 where, in the name of stating the background facts, he argued:-
“4.1 The land in dispute forms portion of a virgin land given to Hausa-Yoruba muslim community to abate their crying nuisance (Otherwise known as call to prayer). The land was given to the muslim community represented by Mogaji Sule the father of 2nd defendant/respondent (page 58 record of proceeding). The land is a communal land belonging to all muslim denominations in Owerri.
4.2 The plaintiff/appellant is a muslim organization and by virtue of being a muslim have a proprietary interest in the land in dispute. One important point which need to be highlighted in this appeal is the fact that the land was given to all muslims as a place of worship i.e. building of mosques and not for residential settlement. This means, any muslim who is willing and capable of building a mosque can do so without any let or hindrance.
4.3 Evidence has shown that the land in dispute was given to the plaintiff/appellant free of charge by the 5th, 6th and 7th defendants. This should not be an issue in this appeal in that appellant was given what actually belonged to them in error. The transfer could not vitiate their proprietary interest in a property in which they are joint or co-owners.
4.4 The plaintiff averred that 1st and 2nd defendants who belong to the Hausa community have their own place of worship (Mosque) within the Hausa quarters falling within the Hausa-Yoruba quarters. The plaintiff’s complaint is that having obtained building plan the defendants interfered with their building of the mosque over 16 and 18 Nekede Road and which parcels lie adjacent facing Nekede Road.”
Secondly, the quoted passage shows also that the plaintiff conceded that the land was owned and jointly occupied by the plaintiff and the defendants. Learned counsel put the final nail in his client’s case when he observed and submitted at page 4 of the amended brief that:-
“The trial Judge was correct when he found in his judgment that title was not in issue. The trial Judge said that what therefore was in issue was exclusive possession.
It is submitted that the plaintiffs/appellants did not claim exclusive possession but the defendants did.” (Italics mine.) and on pages 5 – 6 he argued:
“The title of the parties to this suit is at par. None of the party has got a better title than the other; that is to say their title to the land is equal.
Submit that under Yoruba family law a member of family has a right to maintain an action against a stranger to protect family property.
The plaintiff/appellant took this action because of their proprietary interest in the land in dispute and the fact that the defendants had wanted to appropriate exclusively communal property to themselves.
A lot of dust had been raised by the trial Judge on the purported sale or transfer of the land in dispute by the 5th, 6th and 7th defendants to the plaintiffs.
In fact, the judgment of the learned trial Judge was predicated principally on the purported transfer. The trial Judge held that 5th, 6th and 7th defendants had no capacity to transfer any portion of the communal land to the plaintiff.
The issue involved in this appeal transcends sale or transfer by some of the defendants to the plaintiffs.
There is overwhelming evidence on record to show that plaintiffs had been in possession of the land immediately after the civil war i.e. 1970 and by 1971 had an approved building plan to reconstruct the mosque.
The purported gift was a later day thing. As earlier argued above the plaintiff is a joint owner of the land in dispute.
The question might be asked whether an owner of a property can buy what actually belongs to him. Submit that the purported transfer of the land in dispute by the 5th, 6th and 7th defendants to the plaintiffs was actually done in error in that the plaintiffs/appellants themselves have the same proprietary interest in the land like any of the defendants.
Further submit that the purported transfer from 5th, 6th, and 7th defendants should not be made to have any adverse effect on the claim of the plaintiffs; in other words, it is inconsequential to the plaintiff’s action.
What is more plaintiffs have never claimed exclusive possession of the land in dispute. The building of the mosque by the plaintiffs will serve the generality of all muslims irrespective of ethnic background or religious denomination. A mosque like a church is a public place.” (Italics mine.)
Thus, it was that learned counsel argued his client clean out of court. If the plaintiff did not claim exclusive possession, and if the parties were co-owners of the land, then how could the one maintain an action in trespass to the land against the other? And how could the one ask the court to restrain the other from going onto the land or ask the court to eject the other therefrom?
Trespass, as is well known, is interference with exclusive possession of land. The one who can complain about his exclusive possession having been interferred with is, as it is also well known, the one who can show a better title to the land in the event of the two being in occupation.
The plaintiff pleaded that it had a better title to the land in dispute in this case than the defendants, but wound up establishing that that was in fact not so; that the defendants were as entitled as it was to the land.
From the appellant’s brief alone, it is plain that this appeal is devoid of all merit and ought to be dismissed with the ignominious dispatch that it deserves. I accordingly dismiss it. I affirm the decision of the learned trial Judge dismissing the action in its entirety.
Appellant shall pay costs of N5,000.00 to the respondents.
Other Citations: (2001)LCN/0950(CA)