Alhaji Raji Oduola & Ors V. John Gbadebo Coker & Anor (1981)

LawGlobal-Hub Lead Judgment Report

G. IRIKEFE, J.S.C.

This case has had a rather interesting history. The original plaintiffs, who are technically no longer interested in the case, took out the writ which commenced this action on 3rd March, 1969. The said plaintiffs, namely – (a) Alhaji Raji Oduola, (b) Bello Lahan and (c) Chief Bello Akinrin acting for themselves and on behalf of the Ibikunle family sued (a) John Gbadebo Coker and (b) Oladigbolu Coker, jointly and severally for title to the disputed land under native law and custom and for recovery of possession. Thereafter, the following was the sequence of events in so far as they are material to this appeal.

The statement of claim was filed on 12th April 1969 while the Statement of Defence was filed on 13th May, 1969. The plaintiffs asked for further and better particulars on 25th April, 1970 and same were delivered on 28th May, 1970. Hearing of evidence commenced on 7th December, 1971 and concluded with counsel’s addresses on 8th February 1972. Judgment in the case was delivered on 17th April, 1972.

The actual contest before the court of trial was one-sided in character, as the defendants then on record were not available to participate in the proceedings. Their (defendants’) counsel was thus obliged to close his case at the end of the plaintiffs’ testimony and to address the court. The learned trial Judge, Olatawura, J., (as he then was), found for the plaintiffs in terms of their claim with costs. Barely two months after this event, on 7th June, 1972 to be precise, the plaintiffs on record conveyed their interests in the land in dispute to one ABOLADE COKER, a surveyor and the plaintiffs’ 2nd witness in the trial so recently concluded. The plaintiffs having transferred their interests to Abolade Coker aforesaid, have evinced on further interest in the proceedings.

The present appellant i.e. (a) George Nabham (b) Anthony George Boulos and (c) Gabriel George Boulos who are claiming through the former defendants on record, namely: (a) John Gbadebo Coker and (b) Oladigbolu Coker, had not applied to join in the proceedings while Olatawura, J., was seised of the proceedings.

As they (the present appellants on record) were not parties to the case and could not therefore, appeal as of right against the decision of 17th April, 1972, and as a further appeal lay to the defunct Western State Court of Appeal, it became necessary for them to seek the leave of that court. This they did on 27th February, 1973 by an application which sought the following orders:-

“(a) for leave to appeal against the decision of the High Court of Justice, Ibadan given on the 17th day of April, 1972;

(b) for an enlargement of time within which to appeal against the said decision;

(c) to add Chief Abolade Coker, the 2nd plaintiff witness at the hearing of the suit but who has since claimed to buy the land in dispute from the plaintiffs as a respondent.”

In the ruling of the Western State Court of Appeal delivered on 6th June, 1973 by Kayode Eso, JA., (as he then was), the appellants on record were granted an extension of time within which to appeal against the judgment as well as leave to appeal. With regard to the application that Chief Abolade Coker should be added as a respondent, the court ordered that the said individual should be served with all the papers filed in the application for leave in order to oppose the request for joinder if he so desired.

It is on record that on 18th June, 1973, the date to which the limb of the application affecting Chief Coker came up for determination, counsel for both parties agreed that he be joined as a respondent to the appeal and the order was made accordingly. Thereafter, Chief Coker sought the leave of the Western State Court of Appeal to appeal to this court against the extension of time and the leave to appeal granted by the former court. The leave sought was granted but when that appeal came before this court on 15th October, 1974, it was dismissed as being misconceived. There remained, therefore, pending before the Western State Court of Appeal, only the appeal of the present appellants on record with Chief Abolade Coker as the respondent thereto. Before the appeal could be heard, the Western State Court of Appeal was abolished and the same as a matter of constitutional provision became pending before the newly created Federal Court of Appeal.

This appeal was heard by that court and in a split decision delivered on 2nd February, 1979, the majority, Akanbi and Omo, JJCA., dismissed the appeal and affirmed the decision of the lower court.

This appeal is against the dismissal order as contained in the majority decision of the Court of Appeal aforesaid. Before proceeding to deal with the merit of this appeal, I consider it appropriate, at this stage, to go into the history of the disputed land and its impact, if any, on the outcome of the appeal.

The former plaintiffs on record are said to be the descendants of a powerful warrior named IBIKUNLE who came originally to Ibadan from Ogbomosho. Ibikunle came with a large retinue of warriors and or domestics during the Baleship (Olubadan) of one OLUYOLE. He was said to have appropriated to himself or been granted an extensive tract of virgin land in what is now the centre of Ibadan town. This was about 160 years ago. Upon the death of Ibikunle, he was succeeded on the land so acquired by his children from one generation to the next, until the beginning of this century when one Oyedeji, a direct descendant became the family head.

By this time (circa 1900) the British were already in power in the country and the civil wars having ended, there was a large influx of strangers to Ibadan made up of European traders and other Nigerian indigenes from Ijebu, Lagos and Abeokuta. As land was needed to establish a market for the new arrivals, the Olubadan (Bale) at the time, Fajinmi, approached Oyedeji of the Ibikunle family for use as a market by the strangers and for residential purposes. The Olubandan promised to share the rent received by him from the strangers with the Ibikunle family. The Olubadan failed to make good on his promise and it was the non-payment of this rent or IREJA (ISHAKOLE) that persuaded the Ibikunle family to sue the Olubadan-in-Council for re-possession of land previously granted to the Olubadan. This case, Suit 1/120/49 which was commenced in the Land’s Court, Ibadan, was transferred to the Old Supreme Court of Ibadan (now High Court) for hearing and determination.

The decision in the above case will, as it were, continue to regulate the relationship of the Ibadan City Council (formerly the Olubadan-in-Council) and the Ibikunle family from the grave for many a year to come. The land involved in that case, which encompasses the centre of IBADAN TOWN as it is today, is shown on the plan Exhibit 1 admitted at the hearing of this case. Two parcels of land designated as “A” and “B” were in issue in the 1949 case and the small area of land put in issue in the present case lies within the GBAGI acquisition within the con of the 1949 case.

What happened was that the Olubadan or Olubadan-in-Council (the terms are interchangeable) having ostensibly acquired the areas designated as A and B from the Ibikunle family began to lease same out for valuable consideration. There were also those who did not derive their title as such from the Olubadan. The position became one of chaos and the then British administration appointed Sir Edwin Speed, the former Chief Justice of Nigeria in 1916 to conduct an enquiry into the very fluid land holding in Ibadan. Sir Edwin’s report, known as the Speed Report culminated in what became known as Speed Leases. This meant that non-natives of Ibadan who held land irregularly within the area acquired for public purposes by the Ibadan Native Authority (Olubadan) from the Ibikunle family were required to surrender their holding to the Native Authority in return for a Speed Lease from the said Authority.

No rent was payable on a Speed Lease but the holding was in perpetuity as between the lessee and his lessor (the Native Authority). Although the title so conferred is said to be worthless as against a third party, its effect, as I shall show later, is crucial as against anyone claiming through the Ibikunle family (the original owners of the land).

The fore-going narrative has been a common feature in all the actions in which the Ibikunle family have sought to re-assert their claim to any parcel of land within the area put in issue in the 1949 case (See Oduola v. Ibadan City Council (1978) 1 L.R.N. Page 182). It may be worth mentioning here that there was no appeal by the Ibikunle family against the decision in the 1949 case which was admitted in the instant proceedings as Exhibit 7 in the course of the testimony of P.W.3, RAJI ODUOLA of the Ibikunle family.

At the hearing before us, learned counsel appearing for the appellants relied on the following grounds of appeal:-

1. “(a) The learned Judges of the Court of Appeal erred in law in holding that the appellants cannot be permitted to argue ground 1 as well as the grounds covered by (a) and (b) of ground 2 of the grounds of appeal when the rules of court applicable to the proceedings before them expressly allow such a ground.

(b) Alternatively, the rule stated in Mobil Oil Nig. Ltd. v. Abolade Coker by the Supreme Court was too widely expressed and ought not to apply to the facts and circumstances of this case.

(c) The Federal Court of Appeal ought to have allowed the appeal on the grounds that –

(i) Judgment was against the weight of evidence;

(ii)The statement of claim disclosed no cause of action for possession; and

(iii) The plaintiffs having pleaded that they permitted strangers to occupy “a large portion of that land including the land in dispute” no order for possession ought to have been made in the absence of any evidence of the termination of the occupational rights previously granted by the said plaintiffs.

(2) The learned Judges of the Federal Court of Appeal erred in law in holding that the evidence alleging that the land in dispute had never been given out to anybody was consistent with the statement of claim.

(3) The majority of the learned Judges of the Federal Court of Appeal erred in law and on the facts in holding as follows:

“From the exposition of the law made in the various cases we have cited above, we are satisfied that before a trial Judge can suo motu effect a joinder there must be clear evidence of the name of the persons sought to be joined, the nature of his material interest and its relevance to the issues in controversy as would show that the intervener or party to be joined is a necessary party to the suit and that his presence is a sine qua non to the “effectual and complete” determination of the matters in controversy. In this case,, as we have already shown, a case for joinder was never made out and we do not think the complaints against the failure of the trial court to effect a joinder in the absence of any application is well founded.”

Particulars of Error

(i) Having regard to the pleadings, evidence and the conduct of the defence in this particular case it ought to have appeared to the learned trial Judge in the High Court that the interest of Atrib or his assignees may be affected without their being given an opportunity of being heard.

(ii) It was a mistake for the majority of the learned Justices of the Federal Court of Appeal to assume that the interest of ATRIB or his assignees will necessarily have been pursued by the defendants in the High Court and that they ought to have made out a case for joinder in that court.

(iii) There are no facts or circumstances to warrant the assumption of the majority of the learned Justices of the Court of Appeal that the absence of an application for joinder in the court of trial was due to the culpable fault of the appellants.

(iv) As correctly stated by Aseme, JCA., the cardinal issue raised in the appeal was “whether having regard to the nature of the claim for possession and the facts disclosed both in the pleadings and evidence, the learned trial Judge on his own notion ought to have made the necessary order joining the appellants or ATRIB in the suit.”

The case of the appellants as presented by their counsel would appear to rest on four main submissions namely:-

(a)That this being an action for the recovery of possession of land, the court of trial had enough material before it on which it could have on its own volition insisted on the joinder of those parties actually in occupation of the land and that the Court of Appeal in its majority decision erred in ruling that a case for joinder had not been made out;

(b)That the Court of Appeal was in error in its unanimous view that because the original defendants on record had not testified at the trial, the ground of appeal alleging that the decision is against the weight of evidence could not be available to them on the authority of (a) Odufunade v Rossek (1962) 1 All NLR 98 and (b) Mobil Oil Nigeria Ltd. v. Abolade Coker – 1975 3 SC. 175. We were accordingly invited to over-rule these two cases;

(c)That the statement of claim disclosed no cause of action for recovery of possession; and

(d) That the court ought to have ignored the evidence tending to establish that the land in dispute had never previously been given out to anybody.

Chief Olisa Chukura (SAN.) learned counsel representing the respondent while arguing in support of both the decision of the court of first instance and of the Court of Appeal also submitted that, there being evidence that the appellants had knowledge of the proceedings in the High Court but chose to do nothing, it was now too late in the day for them to be let in to defend this action, more especially as a third party interest, that is the conveyance of the land to Abolade Coker had already taken place after judgment. There being no cross appeal against the ruling by the defunct Western State Court of Appeal granting the appellants leave to appeal as interested parties by the respondent on record (Abolade Coker), it seems to me, with respect, that the above argument has been overtaken by events.

At common law, the rule was that any one who was out of possession must recover the land by the strength of his own title, and not by reason of any defect in the title of the person in possession. See Martin v. Strachan – 101 ER 61N. Even when it is clear that the person in possession has no right to be there, still the claimant in ejectment cannot turn him out unless he can show in himself a title which is prima facie, good against all the world. If some third person has a better title than the claimant, the action would fail, even though such third person did not place the defendant in possession. (See also Bullen and Leake – Precedents of Pleadings – 12th Edition – p.67). It was also a common law rule that all persons in possession of land of which the plaintiff claims possession should be joined as defendants to the writ – See Thompson v. Slade (1856) 25 LJ Ex. 306.

With the above basic statements of the law at the back of my mind, I shall now proceed with an examination of the radical title of the respondents in this case, that is, the title of the Ibikunle family who were the original plaintiffs on record.

I propose to set out the material averments in their Statement of Claim as follows:-

“(7) In or about the year 1823, the aforementioned Balogun Ibikunle, settled on a large area of virgin land at Ibadan including the land in dispute and remained thereon until he died.

(8) That after the death of Balogun Ibikunle his children (the predecessors of the plaintiffs) occupied his land (including the land in dispute) and exercised various acts of ownership thereon.

The plaintiffs aver that the descendants of Balogun Ibikunle have never alienated their interest on the land in dispute.

(10) That in or about 1900, the then Baale of Ibadan told the plaintiffs’ family that certain strangers were in need of land for the display of their wares and that they would be regarded as squatters, paying tolls to the plaintiffs’ family until the time a market could be built in the area.

(11) The plaintiffs’ family thereupon permitted a large portion of their land including the land in dispute to be occupied by these strangers as mere squatters until the time a market could be built in the area.

(12) Plaintiffs say that later, it became clear that the permission granted to the squatters was being interpreted as a grant of title. Plaintiffs thereupon instituted an action at the Ibadan High Court in Suit No. 1/120/1949.

(18) Plaintiffs further aver that after the judgment in Suits Nos. 1/35/60 and 1/36/60 above, negotiations were resumed between the plaintiffs and the Sole Administrator of the Ibadan City Council and at the conclusion of the negotiations it became clear that the Ibadan District Council never acquired the land in dispute.

(19) Plaintiffs aver that the defendants and their predecessors in title, have no right of title or any interests whatsoever in the land in dispute.” (Underlining mine)

The defendants in turn pleaded as follows:-

“(13) The defendants will contend at the trial that their grandfather, the late Andrew Wilkinson Thomas bought the land in dispute over 50 years ago.

(14) The defendants will also contend that the said late Andrew Wilkinson Thomas erected a building on the land in dispute and had continuously enjoyed undisturbed possession and exercised acts of ownership on the land in dispute during his life time.

(15) The defendants will also contend that the said late Andrew Wilkinson Thomas under and by virtue of his will dated 2nd July, 1923 devised and gave the house and landed property in dispute to the defendants.

(16) The defendants have remained in undisturbed possession of the land in dispute since the time of the devise and till date.

(17) The defendants will contend that in the exercise of their acts of ownership, they granted a lease of 70 years to one ANTHONY JOSEPH ATRIB who or whose assignee still occupy the land in dispute as evidenced by a deed of lease dated the 16th February, 1948 and registered as Instrument No.2 at page 2 in Volume 769 of the Lands Registry, Lagos. (Underlining mine.)

In order to succeed, the Ibikunle family had to establish as alleged at paragraph 18 of their statement of claim that the Ibadan District Council, the successors-in-title of the Olubadan-in-Council had never at any time acquired the land in dispute.

On this vital issue, the plaintiffs through their 3rd witness testified thus:-

“The land in dispute has never been given out by our family to anybody including these defendants. We warned the defendants to leave the land and it was when they refused to leave that we sued them to court.” (Underlining mine.)

Under cross-examination he stated thus inter-alia:-

“In or around 1918, I have got married and have children. There was a building on the land in dispute at that time. I did not know Mr. A. W. THOMAS. We were of the opinion that the buildings on that area belonged to the Council. We sued the Council in 1949. The Council advised us to sue in respect of our land being occupied by other persons but that they would pay compensation for our land occupied by them. The Council never informed us that the land had been leased to A. W. THOMAS.” (Underlining mine.)

It seems to me that Exhibit “7” (Suit I/120/49) pleaded by the plaintiffs at paragraph 12 of their statement of claim and admitted through P.W.3 (Raji Oduola) in the course of his testimony is the main plank on which their claim to title will stand or fall.

In that case, as I had stated earlier, the predecessors of the plaintiffs in interest sued the Olubadan-in-Council in respect of a vast tract of land located in what is now the centre of Ibadan and embracing the area in dispute. The plaintiffs failed in their bid for title and the learned trial Judge, Ademola, CJ., of Western Region (as he then was) returned a verdict of non-suit.

The land put in issue in the said suit is shown as Exhibit 1 in this case. When dealing with the evidence in the case, the learned Judge had this to say:-

“The original family who owned the lands described in parcel A (the evidence shows that the land in dispute here lies within parcel “A”) the portion of parcel B having given the land to the authorities for what was described as public use, had no more grip on the land. To stem the confusion which has arisen, a commission was appointed and the Commissioner, Sir Edwin Speed, the erstwhile Chief Justice of Nigeria, went into the matter and presented a report now commonly know as Speed Report. His recommendations were later known as Speed Leases. Non natives who were holding land irregularly were called upon to surrender them and in return were granted leases known as Speed Leases. No rents were payable under these leases but the holding was guaranteed. But Speed Leases do not affect the whole of the land under consideration. Apparently some natives of Ibadan have taken land in the area “acquired” to settle strangers and for commercial purposes; some of the strangers or non-natives passed on their lands to natives of Ibadan. Baale and Council themselves took some vacant plots and started to lease them out. The plaintiffs apparently remained in possession of some of the area. The result is that from plot to plot in the whole area a different history applies… The above portion of evidence by MR. SIMPSON clearly shows the confused state of the land originally taken from the plaintiffs allegedly for public purposes. A greater portion, and valuable portion at that, is in the hands of the defendants for which they are receiving rents; some portions belong to private owners, and some portions still belong to the plaintiffs themselves. It is difficult to sort out which is which. One fact, however, is clear. The plaintiffs do admit that they have, at the request of the Baale (now Olubadan), given the land in accordance with their duty under Native Law and Custom. …

………. The plaintiffs have satisfied me that in the distant past, they owned all the land shown in the plan Exhibit “A”. They admit in their own evidence that, at the request of the defendant they had given at different times portions of this land to the defendant times portions of this land to the defendant in accordance with their duty under Native Law and Custom, the defendant having promised them certain benefits. I am satisfied that these benefits have not been accruing to them. I am also satisfied that portions of the land, which it is hard to determine, have reverted back to the plaintiffs not by operation of law but by some reasons not made clear in evidence; also portions have, by consent or acquiescence of the plaintiffs, been given away to non-natives of Ibadan without payment of rents under Speed Leases (which only re-established the purposes of the original acquisition by the defendants). …………………… Also owing to the fact that the plaintiffs themselves have granted the land to the defendant, it is difficult to expect a declaration of ownership to the land shown in the plan, Exhibit “A”. They cannot have what they themselves say they had given away.” (Emphasis mine.)

As there was no appeal by the Ibikunle family against the above findings, it would be strange indeed for any court to hold, as was done in this case, that the family can now by court process seek to recover possession of an area admittedly lying within the disputed area in Exhibit “7” (which area is recapitulated in Exhibit 1 as admitted in these proceedings) which is the subject of a Speed Lease. A more flagrant abuse of court process would be difficult to imagine. I am in no doubt that, so long as Exhibit “7” subsists, the Ibikunle family would be estopped from laying claim to land covered by a Speed Lease. The argument that a Speed Lease is no guarantee of title except as against the lessors cannot apply here, for the simple reason stated in the judgment that those holding Speed Leases did so in respect of those portions of land, which in the language of the judgment the Ibikunle family had “voluntarily given away” to the Olubadan and which they cannot now have back.”

It seems to me, with respect, that if the court of trial had adopted a more critical approach, it would have had no difficulty in coming to the conclusion that the averment contained in paragraph 18 of the statement of claim, namely that the Ibadan District Council never acquired the land in dispute could never be established. It was at best a statement which had no kinship with reality.

The evidence of Abolade Coker (P.W.3 at the trial) and now respondent puts beyond doubt the exact location of the land in dispute and the relevance of the Speed Lease (Exhibit 6) thereto. Under cross-examination he had this to say:-

“I know about the Speed Lease. The southern part marked red in the sketch attached to a lease dated 24/9/1918 and registered as No. 192 at page 140 in volume 4 of Register of Deeds kept in I. C. C. comprises of the land in dispute together with the land in the case SC. 409/65 which I won. Tendered, no objection and marked Exhibit “6”. Exhibit “2” is a portion of sourthen part of Exhibit “6”. I did not know late Mr. A. W. THOMAS.”

In the face of the above testimony, the applicable test seems to be this – could the Ibikunle family having failed in the 1949 case (Exhibit “7”) to obtain title against the Olubadan-in-Council in respect of areas designated as Speed Lease areas and other areas clearly spelt out in the said judgment, now in a similar and subsequent action, recover judgment against those whose title derive from the self-same Olubadan-in-Council as found in the self-same judgment I think the answer is “NO”. The doctrine of estoppel per rem judicatam is part of the laws of Nigeria. See Sections 53 and 54 of the Evidence Act (Cap 62 – Laws of Nigeria). Section 53 provides-

“Every judgment is conclusive proof, as against parties and privies, of facts directly in issue in the case actually decided by the court, and appearing from the judgment itself to be ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”

Section 54 provides –

“(1) If a judgment it not pleaded by way of estoppel it is as between the parties and privies deemed to be a relevant fact, whenever any matter, which was, or might have been, decided in the action in which it was given, is in issue, or is deemed to be relevant to the issue, in any subsequent proceeding.

(2) Such a judgment is conclusive proof of the facts which it decides, or might have decided, if the party who gives evidence of it had no opportunity of pleading it as an estoppel.”

See Atta v. Agyei – 14 WACA 149 and Adeoye v. Jinadu – (1975) 1 All NLR. 257.

The concluding portion of the judgment in Exhibit “7” runs thus:-

“They (i.e. the Ibikunle family) may, however, be entitled to a declaration in respect of what has reverted back to them if that extent of land can be determined, and also a declaration as to reversionary rights.” (EMPHASIS MINE.)

It seems to me beyond argument that an area covered by a Speed Lease which conveys an interest in perpetuity free of rent could ever come within the recoverable interests contemplated by the learned Judge in Exhibit “7”.

Were the appellants necessary parties The short answer to this is that they were. As already stated they claim to have derived their title to the land from one A. W. THOMAS who was the holder of a SPEED LEASE (Exhibit 6). Issues were joined on the above and the original plaintiffs clearly had a duty to demolish the right of THOMAS to be on the land in order to succeed. Where the defendants, as in this case, claim their title to an owner whose title has been established by a court judgment (such as Exhibit 7), the onus of establishing a superior title such as would oust this title lay on the plaintiffs. See Thomas v. Holder – 12 WACA p.78.

The proceedings before the Western State Court of Appeal show clearly that the appellants trace their title to the land through one Anthony Joseph Atrib who in turn traces his title to the descendants of A.W. THOMAS. While I agree that the affidavit evidence used before the defunct Western State Court of Appeal is not evidence before us, there is at least some evidence before the trial court that the original defendants were not actually on the land. The writ commencing the action shows that they were served in Lagos. The law is emphatic, as I had stated earlier, on the need to serve all those in actual occupation of land in an actio n for recovery of possession. This need is also founded in prudence, as it might be possible by a collusive action to disposses someone who might in fact be in lawful possession, but was unaware of the action taken to dispossess him. See Minet v. Johnson (1886) 90 All ER Rep 586, the facts of which are apposite. The plaintiff in that case served a writ upon J., claiming possession of a house, and judgment was signed in default of appearance. The sheriff, in pursuance of a writ of possession, ejected H. who was in possession of the house, and delivered up possession to the plaintiff. H. had no knowledge of the action, and did not claim to hold through J., H. applied for an order that the writ and all subsequent proceedings in the action be set aside for irregularity, and that the plaintiff restore possession of the house to him. The Judge in chambers ordered that the judgment and subsequent proceedings be set aside, the plaintiff to go out of any possession obtained by reason of, or under, the judgment, the order to take effect only if the applicant within twelve days should elect to be added as a defendant; the applicant to be at liberty so to appear upon filing an affidavit that, at the time of the issue of the writ, he was in possession by himself or his tenant. On appeal it was held that the order was an appropriate one in the circumstances.

Order 7 Rule 10(1) (Western State of Nigeria High Court Rules) provides:-

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the parties may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

Rule 10(2) provides:-

“The court or a Judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as to the court or a Judge may seem just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions.”

The learned trial Judge in the court of first instance appeared to have taken the view, when dealing with Order 7 Rule 10(1), that unless the defendants before him applied for joinder of other parties, he was powerless to do so himself. He went further to reason that nowhere in their pleadings did the defendants say that they had derived their title from the Ibadan City Council. I have already shown that the learned Judge had this material before him in the form of Exhibit “7” which was admitted in the proceedings as part of the plaintiffs’ case. While it may be true that most of our decided cases on joinder of parties deal with cases where the parties themselves initiated the move for joinder as opposed to a situation such as this, where the court was being urged to do so suo motu, there is enabling power in the court in an appropriate case under the provisions of Order 7 Rule 10(2) supra.

I think there is a much persuasive force in the argument advanced for the appellants in their brief that if the learned trial Judge had dealt critically with the evidence before him and especially with Exhibits 6 and 7 he would have had no difficulty in ruling that there was need for joinder of other parties and to have ordered it of his own motion. The argument here is that the interest of the Ibadan City Council vis-a-vis that of the defendants could not fail to impinge on the court’s attention.

I am satisfied that whether an order for joinder is made pursuant to an application by the parties or by a court suo motu, the real test is whether the person to be joined will have his interest irreparably prejudiced if an order joining him as a party is not made. See Amon v. Tuck & Sons Ltd. (1956) 1 All ER 273 at 287 per Devlin, J., where the following passage occurs:-

“The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, 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;”

(EMPHASIS MINE.)

See also Oriare v. Govt. of Western Nigeria – 1971 1 All NLR 138 and Uku & Ors. v. Okumagba & Ors. (1974) 3 S.C. 35.

I have already said in this judgment that Exhibit 7 (the 1949 case) is crucial to the rights of the Ibikunle family and accordingly, the said rights cannot be effectually and completely settled unless the defendants in that case or those claiming through them such as the appellants on record are made parties.

The last important issue raised on behalf of the appellants is whether on a thorough review of the authorities this court should continue to support the decisions in Odufunade v. Rossek – 1962 1 All NLR 98 and Mobil Oil Nig. Ltd. v. Abolade Coker – 1975 3 S.C. 175. These two cases laid down the proposition of law that an appellant who called no evidence at the hearing which is the subject of the appeal cannot avail himself of the ground of appeal which complains that the judgment is against the weight of evidence. In the Odufunade case the facts were as follows:-

Rossek was the lessee of certain lands and premises in Lagos. He appointed Odufunade, an estate agent, for the sale of the said leaseholds and agreed in writing to pay the latter 10 per cent on any amount paid by any purchaser introduced by him. The agreement did not materialise as the Federal Government decided to acquire the land not by private treaty but compulsorily. Rossek failed or refused to pay Odufunade out of the compensation paid by the Federal Government and the latter sued. The action having been dismissed Odufunade sued Rossek. At the hearing Rossek called no evidence. On appeal, one of the grounds relied upon by Odufunade’s counsel was that the judgment was against the weight of evidence. The Federal Supreme Court in dismissing the appeal merely stated thus:

“One of the grounds of appeal is that the judgment is against the weight of evidence – which is not apposite in a case such as the present one where the defendant called no evidence.”

The matter was apparently not pursued further as no reasons were given for the bare statement that the ground was not apposite. In the Abolade Coker case, the pattern was not dissimilar. The respondent in that case again did not call evidence at the hearing and on appeal to the defunct Western State Court of Appeal, one of the grounds was that the judgment was against the weight of evidence.

On a further appeal to this court, we stated as follows:-

“Although the record before the Western State Court of Appeal does not show that the respondents’ counsel advanced any argument in respect of the first ground of appeal before that court, we are in no doubt that, as the respondent adduced no evidence at the trial, the said ground is not available to him and should be struck out. See Odufunade v. Rossek – 1962 1 All NLR 98.”

The course adopted by this court amounted to no more than a mere re-affirmation of the statement lifted from the earlier Odufunade case, which, as I had stated earlier gave no reasons or cited any authority for the proposition therein made.

In Okupe v. Ifemebi (1974) 1 All NLR (Part 1) p.375 the facts pointed the other way. The plaintiff gave evidence and at the end thereof, the defendant rested his case on the evidence so given. The court nevertheless dismissed the plaintiff’s case and on appeal, this court set aside the order of dismissal and awarded judgment to the plaintiff stating that on a preponderance of evidence the plaintiff was entitled to succeed against the defendant who had called no evidence and had thus proved nothing.

It seems to me that, in so far as Odufunade v. Rossek and Coker v. Mobil Oil (Nig.) Ltd. decided that in every case where a defendant called no evidence, such a defendant should be precluded on appeal from challenging the facts on which the court relied in awarding judgment to the plaintiff, these decisions went too far and should no longer represent the correct statement of the law. I am in no doubt that these decisions were given per incuriam.

An appellate court would hardly be in the position to exercise its powers to review a decision given at first instance if it had to function under the constraints imposed by these two judgments. The court would thus be functioning in a “straight-jacket” atmosphere and it would thus have abdicated totally its obligation to do justice. The question as to whether a ground of fact such as the one under consideration in this appeal should be permissible is a matter not of the Biblical immutable laws of the Medes and Persians, but one to be dictated by the state of the appeal record in every given case. If , for the purpose of illustration merely, a plaintiff proved his case as pleaded and produced supporting documentary evidence, it might well be that a defendant who either through inadvertance or nonchalance elected nevertheless to call no evidence lost the case, and thereafter appealed, then possibly in such a case, an appeal court might justifiably disallow such a defendant to impugn the facts upon which the judgment is based. Similarly, if a case is so badly discredited by cross-examination as to leave nothing upon which to sustain a decision, if in such a situation the plaintiff’s case was nevertheless upheld by the court, it would be unjust to bar an aggrieved defendant from challenging the record on appeal. I am satisfied that the need for a review of these two cases has long been overdue and while not expressing any opinion on what these cases decided on other grounds, I rule that they be not relied upon any longer as valid authority for the proposition that a defendant who offered no evidence in a trial cannot be heard on appeal on facts.

Accordingly, I would allow this appeal and set aside the decision and orders of Olatawura, J., dated 17th April, 1972 as well as the majority decision and orders of the Court of Appeal dated 2nd February, 1972. Costs in both courts, if paid, are to be refunded forthwith by the parties to whom such costs were awarded in the said courts.

After this matter had been adjourned for judgment, it was felt that counsel representing the parties should be heard further on the propriety of an order of non-suit in the peculiar circumstances of this case. This step is in consonance with several decisions of this court to the effect that before a non-suit is ordered, the court making such an order should invite and hear argument from the counsel acting for the parties in the case before making the order. This is because a non-suit implies giving an unsuccessful plaintiff another chance of proceeding again in the same cause against a defendant who, in any event, is not entitled to the judgment of the court. See Craig v. Craig (1966) 1 All NLR p. 173; Osayi v. Izozo (1969) 1 All NLR p. 155; Olayioye v. Oso (1969) 1 All NLR p. 281 and Onwunalu v. Osademe (1971) 1 All NLR p. 14.

Having had the benefit of further argument by counsel, I am in no doubt that only an order of non-suit can meet the ends of justice in this case. Such an order would leave the way open for the Ibikunle family (the original plaintiffs on record) if they are so minded, in a fresh action, to seek recovery of the disputed land joining as defendants such persons as the appellants who claims to be in adverse possession thereof.

In conclusion, I order that the plaintiffs be and are hereby non-suited. The appellants are awarded N358 costs against the respondents jointly and severally.

A. FATAYI-WILLIAMS, C.J.N.: I have had the advantage of reading in draft the judgments of my learned brothers Justice Irikefe and Justice Obaseki in this appeal. I agree that the cases Odufunade v. Rossek (1962) 1 All NLR 98 and Mobil Oil Nigeria Ltd. v. Abolade Coker (1975) 3 S.C. 175. In so far as the issue of non-availability of this ground of appeal to a defendant who has adduced no evidence is concerned, should no longer be taken as the law on that issue. For the reasons given by my brother Justice Obaseki, I too would allow this appeal, set aside the order of possession of the land in dispute, and non-suit the plaintiffs. I also agree with the order made by him as to costs.

G. S. SOWEMIMO, J.S.C.: I have read in draft with admiration the judgment of my brother Ayo Irikefe, JSC. I wish to draw attention firstly to the parties in the appeal before us. They were not the original parties in the court of first instance before Olatawura, J., (as he then was). They were joined in the former Western State Court of Appeal as parties whose interests were affected by the judgment of the High Court. As they derived their interests from either parties in the original claim in the court of first instance, the appellant before us claimed to derive his title from the Ibikunle family and the respondent claimed to derive their title from the Cokers through ATRIB.

The title of the Cokers was described by my learned brother having regard to the judgment of Sir Adetokunbo Ademola in the Western Region High Court in 1/120/49 dated 2/4/58 as a Speed Lease. As a matter of fact, I cannot say in this judgment that there is a claim filed by either parties here but I will express the view that there is a dispute in regard to the interests of either parties. How they will frame their claims when the final order in this appeal is made, will in my opinion, be best left in the hands of those who may likely be their counsel.

I read with interest the portion in which my learned brother Ayo Irikefe criticised the trial Judge in not recognising that in the Statement of Defence filed before him, and in the certified true copy of the judgment Exhibit 7, in 1/120/49, the land in dispute fall within an area of land in which a Speed Lease had been granted. I am not happy about the criticism because as was decided by this court in previous cases trial Judges should keep themselves within the bounds of issued joined in the pleadings before them and evidence led in support. But there might be some justification for the criticism when one relates the Statement of Defence with the further and better particulars filed.

My brother Ayo Irikefe has referred to the Speed Lease, Exhibit 6 tendered in the High Court which is No. 192 at page 140 in Volume 4 of the Register of Deeds kept at the Ibadan City Council Lands Registry, Mapo Hall, Ibadan, Nigeria. The Lease was entered into on 24th day of September, 1918 between the Bale and Council of Ibadan, on behalf of themselves and their successors hereinafter called the Lessors, on the one part, and Andrew Wilkinson Thomas of Lagos hereinafter called the Leasee. Further, my brother Irikefe has quoted profusely and quite rightly, the judgment of Sir Adetokunbo Ademola when he was Chief Justice of the Western Region in Suit 1/120/49 and I agree, with him that he described an area as forming the subject matter of a Speed Lease. I will refrain from repeating the portion of the judgment but will state the following findings by the Hon. the Chief Justice then in that case.

(a) He found that it was stated or proved in evidence that part of the land claimed by the Ibikunle family with regard to parcel B, portion was to be given for sports and recreation purposes to be leased to the Ibadan Recreation Club on payment of 10 pound per annum.

(b) Balogun Ibikunle was an illiterate and so were his immediate descendants.

(c) He however found that the Olubadan in Council assumed ownership of the land, entered into a lease with the tenants, continued to collect rents without paying over or sharing the rents with the Ibikunle family.

(d) He found that the remaining portion of parcel B and the whole of parcel A (plans tendered before him) were required for commercial purposes and to settle non natives of Ibadan. He described the situation that ensued under this as one of confusion and that the Bale and Council were anxious to protect this. The learned Chief Justice finally concluded in the words which my learned brother had cited that the Ibikunle family were not able to prove the claim before him and entered a non-suit.

I have also had the opportunity of reading in draft the judgment of my brother Obaseki, although he agreed with the conclusions of my brother Irikefe, his reasonings, however, for coming to the conclusion were based on the grounds of appeal argued before us. That may be a proper way of dealing with this appeal.

The appellants in their notice of appeal had sought two reliefs in the alternative that is:

(a) That the claim of the respondents be non-suited or;

(b) That a re-trial be ordered as the appellants were not parties in the High Court which decided the claims.

I have had the privilege of reading in draft the judgment of my brother Nnamani on the decision of this court, where it was held that when a defendant did not give evidence, he will not be allowed to argue on appeal a ground that the judgment is against the weight of evidence.

I agree with him that that is not the law and, therefore, support his view that in all cases decided on facts, it is open to an appellant to argue a ground on weight of evidence.

Section 136 of the Evidence Act provided on whom lies the burden of proof in a civil case. The principle is that a person, who is able to produce a preponderance of credible evidence, will have judgment in his favour. In this appeal, the grant of the claim for possession to the plaintiffs in the High Court confirmed by the Federal Court of Appeal is being challenged on the ground that it is against the weight of evidence. Nothing was said about the Speed Lease – Exhibit 6 as to who are in physical possession of the land. All that was said was that a judgment of this court – Exhibit 5 – Abolade Coker v. Lamidi Adeyemi & Anor SC. 409/65 had disposed of Exhibit 6. Apart from the parties being different neither based their claim on the Speed Lease. In the appeal before us, the defendant tendered through the 2nd plaintiff witness the Speed Lease on which they relied.

On a motion by plaintiff in the High Court and on the order of court dated 7th May, 1970, the defendants supplied the further and better particulars ordered as follows:

FURTHER AND BETTER PARTICULARS TO PARAGRAPH 13 OF THE STATEMENT OF DEFENCE

1. The Defendants say that their grandfather the late Andrew Wilkinson Thomas had been in undisturbed possession of a large area of land including the land in dispute many years before the Speed Inquiry into the Land Tenure in Ibadan in 1916.
2. The Defendants say that their grandfather, the late Andrew Wilkinson Thomas erected a building on the land in dispute long before the Speed Inquiry in 1916.
3. The Defendants say that in consequence of the Speed Inquiry a Deed of absolute grant was made by the Baale and Council of Ibadan to the Defendants’ grandfather the, late Andrew Wilkinson Thomas the Deed was dated 24th September, 1918 and Registered as No. 192 at page 140 in Volume 4 of the Register of Deeds kept at the Ibadan City Council Lands Registry, Mapo Hall, Ibadan.
4. The Defendants repeated all the averments contained in the Statement of Defence and emphasize that the plaintiffs are guilty of LACHES, ACQUIESCENCE and STANDING-BY.

This was done before the commencement of hearing in the High Court. On production of this Speed Lease, the case for the Plaintiffs for possession was definitely affected. It was an issue of fact in favour of the defendants. Therefore, it was open to them as appellants to file and argue the ground of appeal that the judgment of the High Court was against the weight of evidence.

I will, therefore, allow this appeal. The judgment of the High Court Ibadan, in suit I/43/69 delivered on 7th April, 1972 and the judgment of the Federal Court of Appeal given on 29th day of February, 1979 are hereby set aside. I agree that an order of non-suit should be substituted for the claim for possession. The appellants are hereby made parties to the suit in the High Court.

M. BELLO, J.S.C.: I have had the opportunity of reading in advance the judgment delivered by my learned brother Irikefe, JSC. Save that I shall reserve my opinion on the efficacy of the Speed Leases until the issue is properly raised before us, I agree that for the reasons stated by my learned brother the appeal should be allowed. I endorse all the orders made by him.

A. O. OBASEKI, J.S.C.: This appeal raises many important and interesting points of law which, although ably discussed in the judgment just delivered by my learned brother, Irikefe, JSC., I feel should not escape or be allowed to pass without my comments. The facts are fully set out by my learned brother, Irikefe, JSC., and except in so far as they may be necessary on any issue to be considered, will find little accommodation in this judgment.

The questions for determination in this appeal as set out by the learned counsel for the appellants in appellants’ brief read:

“(1) Whether the plaintiffs’ action for recovery of possession was properly constituted in the absence of the persons in actual physical possession or in receipt of rents of the disputed premises.

(2) Whether the statement of claim in the action discloses a cause of action for recovery of possession.

(3) Whether the oral and documentary evidence before the court can justify the order for possession; and

(4) Whether the evidence tending to establish that the land in dispute had never previously been given out to anybody is consistent with the averments in the statement of claim.”

Counsel for the appellant (Chief F. R. A. Williams, SAN) submitted that the learned trial Judge, Olatawura, J., and the majority Justices of the Court of Appeal (Akanbi, JCA., and Uche Omo, JCA.) should have insisted on the joinder of persons in actual possession or in receipt of rents of the disputed property before entering judgment in favour of the plaintiffs. Failure to do so, he submitted, was a fundamental error; which occasioned miscarriage of justice. If, as contended, there were tenants physically in possession of the premises known to the respondents, their exclusion from the writ filed in this action at the High Court is a clear indication of intention to obtain judgment for possession without their being heard on the issue, their rights to be heard following the issue of warrants for possession notwithstanding.

Learned counsel for the appellants further contended that despite the absence of the appellants and the defendants/respondents at the trial:

(1) the judgment of Olatawura, J., was against the weight of evidence;

(2) the statement of claim disclosed no cause of action for recovery of possession

(3) no order for possession ought to have been made in the absence of the termination of occupational rights previously granted by the plaintiffs; and

(4) the court ought to have ignored the evidence tending to establish that the land in dispute had never previously been given out to anybody.

These arguments were in support of the 3 grounds of appeal filed and which read:

“1(a) The learned Judges of the Court of Appeal erred in law in holding that the appellants cannot be permitted to argue ground 1 as well as the grounds covered by (a) and (b) of ground 2 of the grounds of appeal when the rules of court applicable to the proceedings before them expressly allow such a ground.

(b) Alternatively, the rule stated in Mobil Oil Nigeria Ltd. v. Abolade Coker by the Supreme Court was too widely expressed and ought not to apply to the facts and circumstances of this case.

(c) The Federal Court of Appeal ought to have allowed the appeal on the grounds that

(i) judgment was against the weight of evidence

(ii) the statement of claim disclosed no cause of action; and

(iii) the plaintiffs having pleaded that they permitted strangers to occupy “a large portion of their land including the land in dispute” no order for possession ought to have been made in the absence of any evidence of the termination of their occupational rights previously granted by the said plaintiffs.

2. The learned Judges of the Federal Court of Appeal erred in law in holding that the evidence alleging that the land in dispute had never been given out to anybody was consistent with the statement of claim.
3. The majority of the learned Judges of the Federal Court of Appeal erred in law and on the facts in holding as follows:

“From the exposition of the law made in the various cases we have cited above, we are satisfied that before a trial Judge can suo motu effect a joinder there must be clear evidence of the name of the persons sought to be joined, the nature of his material interest and its relevance to the issues in controversy as would show that the intervener or the person to be joined is a necessary party to the suit and that his presence is a sine qua non to the effectual and complete determination of the matters in controversy. In this case, as we have already shown a case for a joinder was never made out and we do not think the complaints against the failure of the trial court to give effect to a joinder in the absence of any application is well founded.

Particulars of Error

(i) Having regard to the pleadings the evidence and the conduct of the defence in this particular case, it ought to have appeared to the learned trial Judge in the High Court that the interest of Atrib or his assignees may be affected without their being given an opportunity of being heard.

(ii) It was a mistake for the majority of the learned Justices of the Federal Court of Appeal to assume that the interest of Atrib or his assignees will necessarily have been pursued by the defendants in the High Court and that they ought to have made out a case for joinder.

(iii) There are no facts or circumstances to warrant the assumption of the learned Justices of the Court of Appeal that the absence of an application for joinder in the court of trial was due to the culpable fault of the appellants.

(iv) As correctly stated by Aseme, JCA., the cardinal issue raised in this appeal was “whether having regard to the nature of the claim for possession and the facts disclosed both in the pleadings and the evidence the learned trial Judge on his own motion ought to have made the necessary order joining the appellants or Atrib in the suit.”

Although the relief sought as stated in the Notice of Appeal is “to set aside the decision of the majority judgment of the Federal Court of Appeal, Ibadan, and direct the case to be heard de novo” and the part of the decision of the lower court complained of is the whole decision the argument has in the main concentrated attack on the order for possession granted by the lower court.

Before proceeding further with the consideration of the submissions in this appeal, it will be necessary to remind ourselves that the present appellants were not parties to this action in the High Court but were granted leave to appeal pursuant to their application to the Western State Court of Appeal in exercise of their constitutional right under Section 53(4) (a) and (b) of the Constitution of Western Nigeria, 1963, and Sections 18 and 27 (4) of the Western State Court of Appeal Edict.

The main ground for the application was that although not a party to the suit “they are persons having an interest in the matter that

(a) the land in dispute has been continuously in the possession of their predecessors-in-title and themselves for more than 50 years.

(b) they have since 1948 purchased the buildings on the land in dispute and the leasehold interest in the land for 16,000 pound and they have since been in possession and occupation thereof through their tenants and lodgers.”

They can therefore not validly complain of, and have not complained of the grant of declaration of title to the plaintiffs by the High Court. It is the unexpired term of years granted to Anthony Atrib by the defendants which has been acquired by them by purchase they quite legitimately, in my view, seek to protect and constitute their interest in the land.

I will refer briefly to the pleadings to ascertain the issues raised in the High Court, Ibadan.

The plaintiffs’ claim against the defendants jointly and severally endorsed on the writ of summons filed in the High Court at Ibadan was for

(1) Declaration of title under native law and custom to all that piece or parcel of land situated and lying at Lebanon Street, Gbagi, Ibadan.

(2) Possession of the said piece or parcel of land.

In the statement of claim filed by the plaintiffs/respondents paragraphs 9, 10, 11, 12, 13, 19, 20 and 21 which I consider pertinent to the points raised in this appeal and now under discussion read:

“10. That in or about 1900, the then Bale of Ibadan told the plaintiffs’ family that certain strangers were in need of land for the display of their wares and that they would be regarded as squatters paying tolls to the plaintiffs’ family until a market could be built in the area.

11. The plaintiffs’ family thereupon permitted a large portion of their land including the land in dispute to be occupied by these strangers as mere squatters until the time a market could be built in the area.
12. Plaintiffs say that later, it became clear that the permission granted to the squatters was being interpreted as a grant of title. Plaintiffs thereupon instituted an action at Ibadan High Court – Suit No. 1/20/1949.
13. That on the 2nd day of April, 1958 judgment was given in Suit 1/20/1949 by Ademola, CJ., as he then was, the relevant portion of which is subjoined hereunder:

“The plaintiffs have satisfied me that in the distant past they owned all the land shown in the plan Exhibit A ………….

I am also satisfied that portions of the land which it is hard to determine have reverted back to the plaintiffs not by operation of law but by some reasons not made clear in evidence; also portions have, by consent or acquiesence of plaintiffs, been given away to non-natives of Ibadan without payment of rents under the Speed leases (which only re-establish the purposes of the original acquisition by the defendant.) Certain portions have also found their way into the hands of natives of Ibadan by sale or otherwise. I find it difficult to determine which is which ………………….. (Underlining is mine.)

19. Plaintiffs aver that the defendants and their predecessors-in-title have no right, title or any interests whatsoever in the land in dispute.
20. Plaintiffs informed the defendants of their rights over the land in dispute but that defendants denied plaintiffs’ title.”

The defendants at the High Court filed their Statement of Defence, paragraphs 11, 13, 14, 15, 17 and 18 of which read as follows:

“11. The defendants deny paragraphs 19 and 20 of plaintiffs’ statement of claim and put plaintiffs to the strictest proof thereof.

13. The defendants will contend at the trial that their grandfather the late Andrew Wilkinson Thomas bought the land in dispute over 50 years ago.
14. The defendants will also contend that their said late Andrew Wilkinson Thomas erected a building on the land in dispute and had continuously enjoyed undisturbed possession and exercised acts of ownership on the land in dispute during his life time.
15. Defendants will also contend that the said late Andrew Wilkinson Thomas under and by virtue of his will dated 2nd July, 1923 devised and gave the house and landed property in dispute to the defendants.
16. The defendants will contend that in the exercise of their acts of ownership they granted a lease of 70 years to one Anthony Joseph Atrib who or whose assignee still occupy the land in dispute as evidenced by a deed of lease dated the 16th February, 1948 and registered as Instrument No. 2 at page 2 in Volume 769 of the Lands Registry, Lagos.
17. The defendants plead that the plaintiffs are guilty of Laches and Acquiescence.”

In answer to a request for further and better particulars to paragraph 13 of the statement of defence, the defendants supplied the following particulars:

1. The defendants say that their grandfather, the late Andrew Wilkinson Thomas had been in undisturbed possession of a larger area of land including the land in dispute many years before the Speed Inquiry into the land tenure in Ibadan in 1916.
2. The defendants say that their grandfather, late Andrew Wilkinson Thomas erected a building on the land in dispute long before the Speed Inquiry in 1916.
3. The defendants say that in consequence of the Speed Inquiry, a Deed of absolute grant was made by the Bale and Council of Ibadan to the defendants’ grandfather the late Andrew Wilkinson Thomas, the Deed was dated 24th September, 1918 and registered as No. 192 at page 140 in Volume 4 of the Register of Deeds kept at Ibadan City Council Lands Registry, Mapo Hall, Ibadan.
4. The defendants repeat all the averments contained in the Statement of Defence and emphasise that the plaintiffs are guilty of laches, acquiescence and standing-by.”

The issues raised by the pleadings therefore fall within the very narrow compass of right to possession.

At the hearing before the High Court, (Olatawura, J.), the plaintiffs adduced evidence but the defendants did not. In fact, they were absent during the hearing and only their counsel, Mr. Aiyeola was present. Mr. Aiyeola, after successfully securing adjournment once to enable him secure their attendance, closed the defence on the adjourned day without calling any evidence as the defendants were absent and no explanations were offered.

In his address, Mr. Aiyeola asked that the plaintiffs be non-suited, his ground being that Ibadan City Council, from whom the defendants acquired their interest as Exhibit 6 the Speed Lease shows, should have been joined.

The learned trial Judge, at the conclusion of the hearing in a considered judgment, granted the claims of the plaintiffs/respondents. I consider it necessary to set out the pertinent and for the purpose of this judgment, the relevant portion of the judgment.

It reads:

“……….It will be pertinent at this stage to refer to paragraph 13 of the statement of defence which I had earlier on quoted. There is no evidence before me of the person who sold to the defendants’ grandfather the late Mr. Thomas. I agree with the submission of learned counsel for the plaintiffs that Exhibit 6 is no guarantee of title except as against the lessors. The lessors in this case are the Bale and Council of Ibadan the predecessor-in-title to the Council. The findings of the trial Judge, Ademola, CJ., of the then High Court of Western Region has not been reversed; he said:”The plaintiffs (Ibikunle family) have satisfied me that in the distant past, they owned all the land shown in the plan Exhibit A”

I still hold the same view that they (Ibikunle family) owned all the land shown in Exhibit 1 in this case. Mr. Aiyeola has said that the Ibadan City Council should have been joined by the plaintiffs. There is nowhere in their pleadings where they disclosed that they derived their title from the Council, and assuming that they did ………… counsel has also submitted that in view of the non-joinder the proper order should be non-suit. I cannot agree to the submission………..

There is no justification for the call for a non-suit the evidence in support of the claim is overwhelming and I therefore consider it unnecessary to call on counsel on the other side to address me on this point. See also the case of Kai Tongi v. Sulaiman Kalli 14 WACA 331 at page 332.

Mr. Aiyeola also submitted that the claim for possession cannot be maintained on the ground that the agents of the defendants are in possession. There is no such evidence before me, it is not unlikely counsel has at the back of his mind paragraph 17 of the statement of defence. If counsel is right in calling those he alleges in possession agents, then the principal is liable for the acts of his agents. In Thomas v. Holder 12 WACA 78 it has been held (that) where a plaintiff traces his title to one whose title to ownership has been established, then the onus is upon the defendant to show that his own possession is of such a nature as to oust that of the original owner. In the case before me, the plaintiffs claim is based on the acquisition and settlement on the land in dispute by their great ancestor – warrior – Balogun Ibikunle. Unless the defendant can show a better title, the plaintiffs are entitled to possession.

In conclusion, there will be judgment in favour of the plaintiffs.”

It appears to me that the learned trial Judge did not appreciate the full effect of plaintiffs’ pleadings and evidence and the issue joined by the defence on the claim for possession. As will be shown later, the onus on the plaintiffs to establish that the defendants are not entitled to remain in occupation or are liable to deliver up possession in the face of Exhibit 6 the Speed Lease is almost an impossible task.

Two months after the judgment, the plaintiffs sold the land in dispute to Abolade Coker (who was one of the witnesses) who testified. His own affidavit of 18/6/73 sworn before the Western State Court of Appeal Registry reads in paragraphs 4, 5 and 6:

“(4) I attach a photocopy of the conveyance referred to in paragraph 11 of the counter-affidavit and mark it Exhibit A.

(5) The plaintiffs have no further interest in the land the subject matter of this appeal since they granted and conveyed the same to me together with the assignment of the result fruits and benefits of the judgment in suit I/43/69.

(6) I am the proper and competent respondent to answer to the application made with reference to Suit I/43/69.”

The Western State Court of Appeal considered the application of the appellants for leave to appeal and in the light to the facts deposed in the affidavit of George Nabhan in support of the application granted them leave holding

“on this evidence, we have no doubt at all that the applicants are prima facie persons with an interest. This is all we have to determine at this stage and having so determined they are entitled to apply for leave to appeal under the Constitution.”

On the application of the appellants, the Western State Court of Appeal added Chief Abolade Coker as a respondent to the appeal in addition to the plaintiffs. There are therefore 4 respondents to this appeal.

Their interest as I have indicated earlier is limited to the unexpired term of years. This is not co-terminous with those claimed by the defendants in the High Court which they lost.

They appealed against the judgment and their appeal came up for hearing before the Federal Court of Appeal (Aseme, Akanbi and Omo, JJCA.). The four grounds of appeal canvassed before them read:

“(1) Judgment is against the weight of evidence

(2) The learned trial Judge erred in law and on the facts in entering judgment in favour of the plaintiffs for possession

Particulars of Error

(a) The statement of claim discloses no cause of action for possession;

(b) The plaintiffs having pleaded that they permitted strangers to occupy “a large portion of their land including the land in dispute” no order for possession can be validly made without any evidence of the termination of occupational rights previously granted.

(c) The evidence by the 1st plaintiff on page 18 lines 18-21 on facts not pleaded went to no issue and is not relevant to the question now raised.

(d) As the defendants gave no evidence none of the averments in regard to the persons in actual possession of the land in dispute contained in the statement of defence was proved.

In the Alternative

(3) The learned trial Judge ought not to have proceeded with the trial of the action in the absence of all necessary parties thereto when:

(a) In their statement of defence, the defendants disclosed that there were third parties in actual occupation of the land in dispute; and

(b) An order for possession is bound to affect the rights of such third parties.

(4) Having regard to the fact that the deeds conferring title on the appellants and their predecessors-in-title have been registered and disclosed in the statement of defence it was an abuse of the process of the court for the plaintiffs to issue a writ of summons on the defendants and to proceed with the trial of the action without joining the appellants”.

So far, it does appear to me that the fact that in the distant past Ibikunle family owned the land in dispute and other lands covered by Exhibit 1, the Plan filed by the plaintiffs in this case, was not disputed. Neither was the fact that Ibikunle family in 1900 permitted the Bale of Ibadan or Olubadan in Council to make use of a large parcel of land including the land in dispute for purposes of occupation by stranger elements and others with the promise of a share in the rents and fees paid by occupants whether tenants or squatters disputed.

There is no evidence that this permission was ever revoked but instead a new feature i.e. Speed Leases granted by the Bale with the consent of Ibikunle family emerged. After hearing counsel’s submissions in the appeal, the Federal Court of Appeal by a majority of two (Akanbi and Omo, JJCA) to one, (Aseme, JCA.), dismissed the appeal.

In the majority judgment, the learned Justices observed:

“It is trite law that if a person elects to sit down and watch his legal battle fought for him from the side line, he cannot be heard to complain after the battle has been lost. He must bear the full brunt of his inaction. This is particularly so in this case where a third party (Mr. Abolade Coker) has since judgment purchased the land in dispute vide Nana Ofori Atta v. Nana Abu Bonsra (1958) AC 95; Idowu Alase & Ors. v. Sanya Olori Ilu & Ors. (1965) NMLR 65.

In ground 2(b) the appellants further complained that since the plaintiffs in their pleadings alleged that they permitted strangers to occupy a large portion of their land (including the land in dispute) and as the occupational right so granted had not been terminated, an order for possession cannot be validly made in favour of the plaintiffs. We have examined paragraph 11 of the statement of claim especially paragraph 18 in which the plaintiffs averred that the land in dispute was never acquired by the Ibadan District Council and are satisfied that there is no substance in the complaint. The learned trial Judge accepted the uncontradicted traditional history of the plaintiffs and went on to say:

“I accept the evidence of Alhaji Oduola on this point and I find as a fact that the land in dispute is part to the land in Exhibit 1 which was acquired and settled upon by Balogun Ibikunle the plaintiffs’ great ancestor. I also find as a fact that the various Mogajis of Ibikunle family exercised various acts of ownership on the land in Exhibit 1 of which Exhibit 2 is a part.”

There is evidence to support these findings.

The appellants were neither unequivocally shown on the pleadings nor proved by evidence to be at any time in possession of the land in dispute. The Speed lease which was in evidence was executed by the Ibadan District Council (as lessors) and Andrew Wilkinson Thomas (as lessee) and it is interesting to note the foot note thereon

“This lease is no guarantee of title except as against the lessor and no defence to an action by a third party that the land was obtained without consideration or by fraud or by other illegal methods”

The persons who claimed to be in possession – paragraph 16 of the statement of claim (read defence) are the defendants and the unspecified and un-named assignees to which we have earlier on referred we think in the circumstances the order for possession was rightly made. Ground 2(b) therefore fails.

Ground 2(c) complains that the evidence at page 18 lines 18-21 were based on facts which were not pleaded and therefore go to no issue. We think this ground must also fail. Paragraphs 18, 19 and 20 of the statement of claim are clear and relevant. They are the props for the evidence adduced ………… All the grounds of appeal argued before us having failed, this appeal must be and is hereby dismissed.”

On the issue of non-joinder, the Federal Court of Appeal held:

“From the exposition of the law made in the various cases we have cited above, we are satisfied that before a trial Judge can suo motu effect a joinder there must be before him clear evidence of the name of the person sought to be joined, the nature of his material interest and its relevance to the issues in controversy as would show that the intervener or the party to be joined is a necessary party to the suit and that his presence is a sine qua non to the effectual and complete determination of the matters in controversy. In this case as we have already shown a case for a joinder was never made out and we do not think the complaints against the failure of the trial court to effect a joinder in the absence of any application is well founded.”

That was the decision of the Federal Court of Appeal the appellants have asked us to set aside.

With the greatest respect to the two learned Justices of the Federal Court of Appeal, I think there was sufficient material before the learned trial Judge to enable him act suo motu to effect the joinder of the necessary parties to the suit under Order 7 Rule 10(2) of the High Court (Civil Procedure) Rules. Anthony Joseph Atrib was named in paragraphs 17 of the Statement of Defence as the holder of a 70 year lease from 16th February, 1948 in respect of the property. The registration particulars of his registered lease were given. The averment of the grant of a 70 year leases of which only 31 years had run is sufficient to alert the court that the plaintiffs have been out of possession of the land for over 31 years and that the lease pleaded was granted before the institution by the plaintiffs in 1949 of their action Suit I/20/1949 against the Ibadan City Council. Although the plaintiffs were non-suited in that action, the findings in respect of the circumstances and the grant of Speed leases cannot be said to be favourable to them; the note of warning endorsed at the foot of Exhibit 6 on the value of the title thereby granted against third party interests notwithstanding. It is in my view arguable that in the light of the findings that the Speed leases were issued with their consent that they cannot as the Ibadan City Council be heard to challenge the title of the holders without revocation. This is particularly so, when it is realised that the plaintiffs made that finding part of their case. I had thought that an order of non-suit is a particularly valuable judgment for a plaintiff to start again and that he is given a second bite at the cherry, a second opportunity to establish his claim against the defendants. The order does not create an estoppel per rem judicatam. It does not bar a party from adducing evidence to nullify particular findings that were made in the judgment. A non-suit is awarded when neither party is entitled to judgment under the High Court (Civil Procedure) Rules. See Akile & Ors. v. Amos & Ors. (1975) 2 AC 57 at 61. See also Ogunremi v. Dada (1967) NMLR 181, Naya v. Wey (1961) All NLR 123, Lawal v. NEPA (1976) 3 SC. 109 at 131.

Dealing with ground 1, learned counsel for the appellants invited the court to overrule the decision in

(1) Mobil Oil Nigeria Ltd. v. Abolade Coker (1975) 3 SC. 175

and (2) Odufunade v. Rossek (1962) 1 All NLR 98

that “as the defendants adduced no evidence at the trial the ground “judgment is against the weight of evidence” is not available to them.”

Counsel submitted that there has never been a considered decision on the point but that Bairamian, FJ., merely expressed the view in passing that the ground “judgment is against the weight of evidence……….. is not apposite in a case such as the present one where the defendant called no evidence” in the case of Odufunade v. Rossek and this court in the latter case of Mobil Oil Nigeria Ltd. v. Abolade Coker merely expressed obiter, its approval of the earlier decision in Odufunade v. Rossek.

Learned counsel quite rightly argued that the denial of the right of the appellants to explore this ground in any appeal before the courts will in most cases lead to miscarriage of justice.

Counsel for the respondent, Chief Olisa Chukura, while conceding that there might be cases where such a ground could be validly raised, did not agree that the statement is an erroneous statement of law.

In the circumstances of this case, I think the decision of the Federal Court of Appeal not to hear the appellants was erroneous.

It does not necessarily follow that the weight attached to the evidence of each plaintiffs’ witness will necessarily support plaintiffs’ claim. It is possible that the evidence may in part support the plaintiffs’ claim and in part the defence. In such a case, it will be a denial of justice to bar any argument on whether the judgment is against the weight of evidence or not.

An aggrieved party can appeal as of right under Section 220 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1979 against the final decisions in any civil proceedings before the High Court sitting at first instance on grounds of fact or law. He has the same right of appeal to the Supreme Court under 213 (2) (a).

Authorities abound setting out the grounds under which the Court of Appeal would interfere with findings of fact. I will only refer to a few:

See (1) Watt v. Thomas (1947) AC 454

(2) Fabumiyi & Anor. v. Obaje & Anor. (1968) NMLR 242

(3) Fashanu v. Adekoya (1974) 1 All NLR 35

(4) Omaegbe v. Edo (1971) 1 All NLR 282 at 289

(5) Alhaji Elias v. Suleiman & 2 Ors. (1973) 12 SC. 113.

The jurisdiction of the Court of Appeal and the Supreme Court to hear appeals will be curtailed if because a defendant decides not to adduce evidence, he is barred from complaining that the judgment is against the weight of evidence.

Ground 1 is therefore very well founded and I would overrule the authority of the decisions in the two cases cited above which were followed by all the Justices of the Federal Court of Appeal in this matter that the ground that “judgment is against the weight of evidence” is not available to an appellant when the defendant/appellant adduced no evidence at the hearing. Whether the ground is available depends on the state, quality, credibility and the several and cumulative weight of the pieces of evidence accepted by the court of trial in each case.

Having so held, it is my view that from the state of the pleadings and evidence adduced in this case, the ground of appeal that judgment is against the weight of evidence is available and a proper ground to be argued.

Three witnesses, Layiwola Omotosho (P.W.1); Abolade Coker, (P.W.2) and Alhaji Oduola (P.W.3) and one of the plaintiffs testified before the High Court. P.W.1 was a senior technical assistant with Ibadan City Council. He tendered Exhibit 1, plan of part of Ibikunle family land acquired by Ibadan City Council. He did not know who made it and his evidence cannot be said to advance the case of the plaintiffs an inch.

P.W.2 was the surveyor for plaintiffs’ family and took part in the preparation of Exhibit 1 between the years 1958 and 1966. The land in dispute shown in plan Exhibit 2 was identified as the plot marked 18 in plan Exhibit 1. He also identified it as a portion of the southern part of the land covered by the Speed lease Exhibit 6. This piece of evidence destroyed the evidence given by P.W.3 that “the land in dispute has never been given out by our family to anybody including these defendants.”

Parties are bound by their pleadings.

Temperton v. Russel 9 TLR. 318 at 322, National Investment Properties Co. Ltd. v. Thompson Organisation (1969) 1 NMLR 79.

The plaintiffs did not allege trespass. They pleaded in paragraph 11 of the statement of claim that they gave permission for the occupation of the land in dispute at the request of Bale of Ibadan. The Speed lease was granted by the Bale of Ibadan to the appellants’ predecessor-in-title and it is my view that the occupation by the appellants is legal. Counsel for respondent submitted that a Speed lease is no guarantee of title and this has been expressly stated on the deed. He even went on to submit that Speed leases being for an indefinite period and rent free is null and void.

A lease in its simplest possible form is the grant of a leasehold interest in land. But in practice leases are almost invariably bilateral contracts in which the tenant is not only given an estate in the land but also himself gives covenants e.g. to pay rent and execute repairs.

“Demise” is the technical term for “let” or “lease” and is the word used in the Speed leases.

“Leases” and “terms of years” are merely synonymous terms today (See Re Land and Premises at Liss Hants (1971) Ch 986).

Before 1926, a term of years could be regarded as one kind of lease since leases for lives were by no means unknown. Today, in England, leases for lives have nearly all disappeared.

It should be remembered that the Speed lease pleaded in this suit was made in 1918 when Nigeria was a British Colony.

“Lease” is often used inter-changeably either for the document or for the term of years or “leasehold interest” created by it although primarily it means the document.

I think therefore having regard to the arguments before us and to the fact that English statutes of General Application before 1900 and the common law of England were applicable in Nigeria, (see Section 45 Interpretation Act) and until the issue is properly raised before us, I will express no opinion on the validity or otherwise of the Speed leases. It will be of interest to know that in England, by the Law of Property Act, 1925, Section 149(6) a lease at a rent or a fine, for life or lives or for any terms of years determinable with life or lives or on marriage of the lessee is converted into a term of 90 years whether it was granted before or after 1925. The modern definition of leases as a term of years certain does in my opinion, exclude the uncertain term of years known under the old law. However, their validity is unaffected.

On the state of the evidence, the plaintiffs, in my view, were not entitled to judgment and grounds 1 and 2 succeed.

Ground 3 of the grounds of appeal complains in the words of Aseme, JCA., “that having regard to the nature of the claim for possession and the facts disclosed both in the pleadings and the evidence, the learned trial Judge, on his own motion, ought to have made the necessary order for joining the appellants or Atrib in the suit.”

Learned counsel for the appellant submitted that it is a rule of law and practice that the person or persons in physical possession must always be made defendants to an action by a plaintiff who wishes to recover possession from persons who have wrongfully kept him out of possession. He then referred the court as his authority for the submission, to Halsbury Laws of England 3rd Ed. Vol. 32 page 374 para. 598

Bullen and Leake and Jacobs Precedents and Pleadings 12th Ed. page 163

Minet v. Johnson Vol. 63 LTR 507.

It should be noted that this rule is relaxed if persons who have kept the plaintiffs out of possession are numerous by permitting the plaintiff to sue the person who puts them (the tenants and lodgers) in possession or who is receiving rents from the said premises.

It is also the law where a defendant to an action for recovery of land allows a judgment to go against him by default, any person in possession of the land is allowed to move to set aside the default judgment and to seek liberty to defend the action. See Minet v. Johnson 63 LTR (1890) All ER (Rep) 586. In this appeal before this court, the defendants, after filing their statement of defence disclosing the name of the person they have put in possession under a lease for 70 years from 1948, did not appear in court to adduce evidence in defence. The disclosed lessee and/or his assignees were not joined in the action as no application to add them as defendants was filed by either the plaintiffs or defendants or the lessees or their assignees. The court did not exercise its powers under the rules to add suo motu their names but proceeded to judgment after taking evidence from the plaintiffs and their witnesses and after hearing address of counsel for both sides.

The learned trial Judge did not also act under Order 15 Rule 10 of the rules in force in England which are applicable to the High Court of Oyo State, which empowers him to order any person who is in possession of land (whether in actual possession or by a tenant) be added as a defendant on an application ex parte.

As already stated above, it is the law that persons in actual occupation of the property and not their landlord must be sued, (see dictum of Stirling, LJ., in Green v. Herring 1905 1 KB 152 at 158-159 and the dictum of Atkin, LJ., in the case of Barton v. Alliance Economic Investment Co. (1922) 1 KB 742 at 759-760).

Learned counsel for the appellants has urged on us that the judgment for possession and subsequent proceedings be set aside and the appellants elect to be added as defendants and that they should have liberty to appear by filing an affidavit that at the time of the issue of the writ they were in possession by themselves or their tenants and assignees.

I agree with appellants’ counsel’s submission that the rule of natural justice that a person is entitled to be heard before a decision is made affecting his rights is embodied in Section 33 of the 1979 Constitution of the Federal Republic of Nigeria and that any rule of practice or of common law which is inconsistent with that rule of natural justice becomes void and unenforceable. Under Nigerian Law, the rule which requires that a person in physical occupation of property can only be ejected in proceedings to which he is a party cannot be relaxed.

It is also to be observed that Order 113 of the Rules in force in England would have enabled the plaintiffs to recover possession from the persons in actual occupation if their names were unknown to the plaintiffs, but that rule 3(c) of the said Order 113 requires the plaintiff to file an affidavit stating that he has taken all reasonable steps to identify the persons occupying the land who are not named in the summons. Thus, the respondents under the rules must diligently search for the names and identity of the occupants.

Order 7 Rule 10(2) of the High Court of Western Nigeria (Civil Procedure) Rules enables the Judge or court to act suo motu and order the names of Anthony Atrib or his assignees to be joined as defendants. The rule states in part:

“The court or a Judge may at any stage of the proceedings either upon or without application of either party, and on such terms as to the court or a Judge may seem just order the names of any party improperly joined whether as plaintiffs or defendants to be struck out and that the names of any party whether plaintiffs or defendants who ought to have been joined or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon, settle all the questions.”

(Underlining is mine.)

It must have been obvious to the learned trial Judge that the question of possession could not be effectually and completely adjudicated upon and settled without adding Atrib and his assignees as parties to the action and that it is not now open to the respondents to dispute that the appellants are persons interested as occupiers or persons in receipt of rents from No. 19 Lebanon Street.

Learned counsel for the respondents, in reply, agreed quite properly that the issue whether the appellants have an interest in the subject matter of the suit to appeal under Section 53(4) (a) and (b) of the subsisting Constitution of Western Nigeria even though they were not parties to the action has been settled in favour of the appellants. He however submitted that the appellants stepped into the shoes of the defendants in the suit in the High Court and do not acquire, nor can they exercise any rights which the defendants on record neither had nor could exercise and that they are bound by the Record of Appeal Volume 1 and cannot wander outside it and cannot raise the issue of declaration of title. He agreed that learned counsel for the appellants has correctly stated the law on procedure for recovery of possession from persons in occupation of land as contained in Volume 32, Halsbury Laws of England 3rd Edition page 374. He also agreed that the court has power under Order 7 Rule 10 of the High Court (Civil Procedure) Rules to add persons who ought to have been joined to the suit. He contended however that neither the appellants nor Atrib or Atrib’s assignee applied to be joined as co-defendant and that the statement of defence was evasive.

He contended that as in England, the defendant in a suit for possession of land, must, in Nigeria, plead the material facts upon which he relies to answer the plaintiffs’ claim and cited the case of Aboaba v. Adeshina 12 WACA 18. He submitted and I agree with the submission, that counsel’s address is never a substitute for evidence that has not been led and cited Salawu Yoye v. Olubode & Ors. (1974) 1 All NLR 118 at 123. He then went on to contend and submit that since this issue of joinder (being a matter of procedure) was not raised in the High Court, it cannot be raised on appeal and cited Chief Saka Adebisi v. Gbadamosi Laojo 17 NLR 96.

I am unable to accept this submission.

It is my view that the issue of joinder which is the cardinal issue in this appeal can be and has been properly raised. Put simply, it is that the respondents knew and left the persons in physical possession or actual occupation, i.e. the appellants, out of the action which contains a claim for possession and got judgment behind the backs of the appellants and the question arose whether the court should allow such a course of action which amounts to an abuse of the process of the court and deprives the appellants of their constitutional right of being heard in the matter affecting their right to occupation and possession of the land before the court arrives at a decision on the claim.

He further submitted that joinder of persons in actual occupation of land as defendants of which recovery of possession is claimed is desirable only and is not imperative and must depend on the circumstances of each particular case. He submitted that in this case, it is not necessary to join the numerous occupants as co-defendants and that as the title of Anthony Atrib and his assignee was altogether dependent upon the alleged title of the defendants on record no joinder is desirable or necessary.

I am unable to accept counsel’s observation that a consideration of the authorities on which the appellants anchored their argument quite clearly establishes that the facts of this case on appeal fall within the circumstances which preclude joinder.

He observed that the names of the appellants were not pleaded as is demanded by Bullen & Leake 12th Edition page 168 and that the facts of Minet v. Johnson Vol. 63 LTR 507 (1890) All ER (Reprint) 586 are completely different from the facts of the case on appeal. In that case

(i) that the person in occupation claimed the land through someone else not through the defendant therein

(ii) judgment was signed in default of appearance;

(iii) the person in occupation had had no knowledge of the pending action as in this case where Nabhan had notice.

(iv) the application in that case did not affect the judgment against the defendant on record. (In this case it is sought to set aside the judgment as it affected the defendants).

The facts may not be the same but the principle of ensuring that the rights of those in physical occupation are not taken away without being heard is the same.

The dictum of Mathew, L.J., in Green v. Herring (1905) 1 KB 151 at 159 and that of Atkin, LJ., in Barton v. Alliance Economic Investment Co. (1922) 1 KB 742 dealing with the in-advisability of adding the names of numerous weekly tenants to that of the immediate landlord in the writ do not in my opinion, support the respondents’ action in omitting from his writ Anthony Atrib who to his knowledge as disclosed in the Statement of Defence, holds a 70 year lease of the property. The position, rights and interests of weekly tenants and lodgers cannot match those of holders of long leases.

Counsel for the respondents also submitted that the issue of natural justice does not arise in this case. It does seem to me that this issue is brought into focus by the constitutional provision enabling the appellants as “person with interest in the subject matter” to appeal. Having been granted leave, it cannot be denied that they are persons who have a right to be heard on the issue of possession. It may well be that in the case of Minet v. Johnson there is no question of natural justice and the only person to be served with the writ of summons is the defendant named in it……… as was stated at page 587 of the report but in this case, the appellants would have lost their leasehold interest but for the constitutional provision and the exercise of the rights so conferred.

Dealing with Order 7 Rule 10, High Court (Civil Procedure) Rules, counsel submitted that the court is not obliged to move suo motu, at all events or at all where no application for joinder is brought, more so when the word used is “may” and not “must”.

He further submitted that the provision of Order 7 Rule 10(1) that non-joinder will not defeat a suit, saves the action and only reserves liberty to ask for a joinder of 3rd parties and gives court or Judge discretion to add such persons.

The appellants counsel’s point is not that the court or Judge must at all event add parties suo motu but that in the circumstances of the present case, the Judge should have exercised his discretion to order the addition of the names of the appellants or their assignees who are in actual occupation.

It appears to me that the court cannot effectively discharge its duties: “to effectually and completely adjudicate upon and settle all the questions.”

if the court refuses to exercise his power suo motu or to add necessary parties as defendants in the suit.

For all the reasons stated above, I agree with my learned brother, Irikefe, JSC., that the appeal be allowed only on the order for possession.

The Notice of Appeal filed by the appellants made the three plaintiffs in the High Court proceedings and Chief Abolade Coker, the respondents to this appeal.

The present appellants were not parties in the High Court. So also was Chief Abolade Coker, the 4th respondent. It was after testifying for the plaintiffs and shortly (2 months) after the High Court judgment that he acquired, by purchase, the property the subject matter of the action.

Neither the appellants nor the 4th respondent is entitled to judgment on the claim for possession in the action.

The plaintiffs/respondents, who were the 4th respondent’s predecessors in title were definitely not entitled on the state of the evidence.

An order of non-suit will be more equitable than an order of dismissal and I hereby non-suit the plaintiffs on their claim for possession.

The respondent shall pay the appellants costs in this appeal assessed at N358.00 (Three Hundred and Fifty-Eight Naira).

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SC.66/1980