Buraimoh Oloriode & Ors. V. Simeon Oyebi & Ors. (1984)

LawGlobal-Hub Lead Judgment Report

IRIKEFE, J.S.C. 

In this appeal, the appellants were the plaintiffs in Suit No. IK74/73 before the Ikeja Judicial Division of the High Court of Lagos State against the respondents who were the defendants in the said suit. Later, in Suit No.IK/261/73 the respondents to this appeal sued the appellants and one E. B. Ige, their tenant, over the same piece of land in issue in this case.

Both cases were later consolidated for the purposes of trial by the Ikeja High Court.

The claim in Suit No. IK/74/1973 reads:-

“The plaintiffs’ claims against the defendants are for:-

(1) Declaration of title in respect of the plaintiffs’ piece of land situate, lying and being at Ikola Agbenaje Village, via Ipaja in the Ikeja District of the Lagos State (hereinafter called the property).

(2) Possession of the said property.

(3) N100 being special and general damages for the trespass committed on the said land and the destruction of survey pillars thereon.

(4) Perpetual injunction restraining the defendants and/or their agents or servants from committing further acts of trespass upon the said land.”

The cross-action, that is Suit No. IK/261/73reads:-

“The plaintiffs’ claims against the defendants jointly and severally are:-

(1) Declaration that the plaintiffs are the absolute owners under native law and custom of all that piece or parcel of land situate, lying and being at Ikola Kogbawosi Village via Orile Agege in the Ikeja Division of Lagos State.

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

(3) Special and general damages of N200 for trespass committed by the defendants, their servants, agents and privies to the said piece or parcel of land.

(4) Injunction to restrain the defendants, their servants, agents and/or privies from continuing trespass to the said piece or parcel of land.”

Pleadings were ordered in each case and duly exchanged. In IK/74/73 the plaintiffs therein (appellants in this appeal) acting for themselves and on behalf of the Agbenaje family sued the defendants (respondents in this appeal) in their personal capacity. Similarly in IK/261/73 the plaintiffs therein (respondents in this appeal) acting for themselves and on behalf of other members of Ogadubu family sued the defendants and one E. B. Ige (their tenant) (all of whom are the appellants in this appeal) also in their personal capacity.

After consolidation, the plaintiffs in IK/74/73 (the appellants herein) were treated as plaintiffs for the purposes of the trial, while the defendants in that case and thus plaintiffs in IK/261/73 (the respondents herein) were treated as defendants. Based on the pleadings and the welter of evidence produced on either side at the trial, not much appeared to have turned on the traditional evidence of prior settlement of the disputed land which was the main plank on which the case of each party rested.

As is usual in these cases, each party sought to prove prior settlement on the land in dispute as to the location and dimensions of which the parties are in agreement and predictably, sought to explain away the indisputable presence of and long enjoyment of portions of the disputed land by the opposing side by saying that a customary grant of such specified areas had been made at a time well beyond human memory to ancestors of those persons.

At the end of the trial, the learned Judge, Ajose-Adeogun J. meticulously evaluated the entirety of the evidence produced and made copious findings to which I shall now make reference. Summing up the case of the present appellants the learned Judge had this to say:-

“Paragraph 7 of the their pleadings clearly states that Ladega Oyero who became seized of the said land after the death of his brother Idowu without issue, left two children surviving him. These were Taiwo Areje (otherwise known as Agbenaje) and Osu Kehinde (otherwise known as Edun). They both inherited the land under native law and custom and exercised, while alive, ‘all acts of ownership and possession without interruption from anyone.’

In paragraph 9 of the same pleadings, it is stated that the second child, Osu Kehinde (Edun) died about 35 years ago leaving 5 children surviving him.

Some of Osu Kehinde descendants are shown to be still alive while others are shown to be deceased. In their evidence, the plaintiffs said virtually nothing about these descendants even though it was acknowledged that their ancestor Osu Kehinde was a brother of Taiwo Agbenaje. From the history given, the Osu Kehinde branch would equally be entitled to the land in dispute with the Agbenaje branch being the two branches descending from Ladega Oyero. They have not been joined in this action and no explanation has been given for failure to join them. My conclusion from all the above is that I cannot, even if the historical evidence of the plaintiffs is accepted, equitably decree title to the land in dispute in favour of the Agbenaje family and, the 1st and 4th plaintiffs as claimed. Such a declaration will ignore the interests of the Osu Kehinde branch as disclosed in the pleadings and in the evidence. It will also tend to confer title on all the descendants of Ero Ebe via the 1st and 4th plaintiffs contrary to part of the pleadings and to the evidence adduced. The evidence, in so far as it shows that the land in dispute belongs to the Agbenaje family, is at variance with the pleadings and not supported by the latter. Similar situation arises with regard to such part of the evidence that tends to show that the said land belongs to all the lineal descendants of Ero Ebe. Assuming the historical facts given by the plaintiffs are accepted and correctly evaluated, the proper persons who would be entitled to a declaration of title to the land in dispute would be members of Ladega Oyero family. These would be all the descendants of Agbenaje and Osu Kehinde.”

At the end of the above summary the learned Judge proceeded thus:-

“In the light of all the circumstances reviewed above, I have no doubt whatsoever in coming to the conclusion that the plaintiffs have failed completely to prove their ownership of the land in dispute either through settlement or by such acts as are required to warrant the inference that they were exclusive owners.

Having so concluded, I am of the view that the proper order to make in the circumstances of this case is one of dismissal.”

He then concluded thus:-

“Accordingly, the plaintiffs, claim for declaration of title in Suit No. IK/74/73 should be dismissed with costs.”

The other claims on the writ were similarly dismissed.

The case of respondents almost suffered the same fate at the hands of the learned trial Judge as the following excerpts show:-

“Both the application for the writ and the amended statement of claim show that the defendants have sued ‘for themselves and on behalf of other members of OGADUBU family.’ But the pleadings clearly show that the said OGADUBU family is a sub- branch of one of the two branches of the original owner of the land in dispute. There is no indication that one of the two branches has become extinct. On the contrary, the pleadings show that the descendants of the two branches of the original owner (Ajayi Odofin) are very much alive………….. But the Ogadubu family, represented by the defendants, is only a section of one of the two branches owning the land in dispute………………The defendants in this case are not wrong persons in that they have partial interest in the land in dispute. But they have sued in the wrong capacity and even then without the leave of this court. To make a declaration will amount to vesting the entire land in their own branch alone even though it is found to belong to a larger group………………In the light of all the above, I consider and hold that the proper course to adopt is to strike out the defendants’ claim for declaration of title against the four plaintiffs and the 5th defendant MR. IGE. See the case of Chief Duke vs. Duke Henshaw 6 WACA. 200 at 201 where a non suit was entered. I believe the court no longer has the power to order a non-suit under our new rules of court………………But the court’s power of striking out is contained in Order 23 rule 1 of the new rules.”

Thereafter the learned Judge concluded thus:-

“In the final result, I now set out hereunder the judgment of this court in the case of the two consolidated suits, namely, IK/74/73 and IK/261/73 using for this purpose the real description of each party. It is as follows:-

(1) The entire claim of the plaintiffs against the defendants (Simeon Oyebi and 4 others) in Suit No. IK/74/73 is hereby dismissed with costs to be assessed.

(2) The entire claim of the plaintiffs against the 1st four defendants (Buraimoh Oloriode, Michael Taiwo Agbenaje, Samson Taiwo Agbenaje and Madam Kosemani Omoroga) in Suit No. IK/261/73 is hereby struck out with costs to be assessed.

(3) The plaintiffs’ claim for declaration of title against the 5th defendant, Mr. Ige, in Suit No IK/261/73 is also hereby struck out.

(4) The plaintiffs’ claim against the 5th defendant Mr. Ige in Suit No. IK/261/73, for possession succeeds and the said Mr. Ige is hereby ordered to give up possession of the land in dispute forthwith.

(5) The plaintiffs’ claim against the 5th defendant Mr. Ige, in Suit No. IK/261/73, for special and general damages for trespass to the land in dispute succeeds but as special damages have not been strictly proved, I award general damages of N50 against the said Mr. Ige in favour of the plaintiffs.

(6) The claim of the plaintiffs for injunction against the 5th defendant, Mr. Ige, in Suit No. IK/261/73 equally succeeds and the said Mr. Ige, his servants and/or agents are hereby restrained from any act of further trespass on the land in dispute.”

Aggrieved by the above decision the defendants in Suit No. IK/261/73 (the present appellants) appealed to the Court of Appeal on three grounds namely:-

(1) “Judgments are against the weight of evidence in both Suits Nos. IK/74/73 and IK/261/73 consolidated.

(2) The learned trial Judge misdirected himself in law in finding the 5th defendant liable in trespass and in granting possession to the other defendants.

(3) The learned trial Judge erred in law and/or misdirected himself on the evidence when he held that he preferred the traditional history of the defendants to that of the plaintiffs and thereby came to a wrong conclusion.”

At the hearing of the appeal before the Court of Appeal, learned counsel acting for the respondents rightly conceded that the claim for possession had been wrongly joined to the claim for trespass, both claims being mutually exclusive. The Court of Appeal thus had no difficulty in disposing of the findings listed earlier on in this judgment and numbered as 4, 5 and 6 made against the 5th defendant, Mr. Ige. Authority for thus acting was, in my view, rightly drawn by the Court of Appeal from the decision of this court in Aromire vs. Awoyemi (1972) 2 S.C.1 – where this court at page 7 of the report stated thus:-

“We have already set out the claims of the plaintiff as on his writ – damages for trespass, recovery of possession and a perpetual injunction. It is pertinent at this juncture to observe that the claims as appearing on the summons are self-contradictory.

A claim in trespass pre-supposes that the plaintiff is in possession of the land at the time of the trespass. A trespasser cannot claim to be in possession by the mere act of entry and clearly a plaintiff in lawful possession at the time still remains in possession despite a purported eviction by a trespasser.

On the other hand a claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action, that he was once in possession but is at the time seeking to be restored to possession of the land.

Hence, in the present case the claims for trespass and for recovery of possession should not have been put together as one postulates that the plaintiff was not in possession whilst the other suggests that he was.”

The Court of Appeal also relied on the case of Ibeziako vs. Nwagbogu – 1972 6 S.C. 53 (80) – a decision to the same effect as Aromire vs. Awoyemi (Supra).

The Court of Appeal then proceeded to decree as follows in respect of the entire appeal:-

“In the final analysis, we find no substance in this appeal and it is hereby dismissed save in respect of the 5th appellant whose appeal succeeds and is allowed.

Judgment of the lower court in Suit No. IK/74/73 is affirmed and the case stands dismissed.

Suit No. IK/261/73 stands struck out in respect of the first 4 defendants but dismissed as against the 5th defendant – i.e. 5th appellant.”

The appellants have now appealed against the above decision to this court on the ground worded thus:-

“Failure of their Lordships to properly evaluate the weight of the evidence of the appellants vis-a-vis that of the respondents.”

The above ground of appeal was subsequently amended with leave of this court upon the application of counsel acting on behalf of the appellants to read:-

(i) The Federal Court of Appeal erred in law in failing to observe that the proper parties who claim the land in dispute were not before the court and accordingly the claims should have been struck out.

(ii) The Federal Court of Appeal erred in affirming the judgment of the High Court when it is clear that the court erred in law in dealing with the evidence relating to traditional history by not applying the rule in Kojo vs. Bonsie”.

Chief Williams, SAN. learned counsel acting for the appellants based his attack on the judgment of the Court of Appeal on two grounds, namely:-

(a) That the court of trial having found that the proper parties competent to institute proceedings for title to the land in dispute were not before the court, the only order that that court could validly make in the consolidated suit was an order striking out each suit for not being properly constituted.

(b) That the court of trial having itself held that there was a conflict in the traditional evidence produced by the parties should have, in deciding on which version of traditional evidence to prefer as against the other, followed the principles of law laid down in the case of Kojo vs Bonsie – 1957 1 W.L.R. 1223.

Mr Agusto learned counsel for the respondents while conceding that the Court of Appeal was right in holding that a claim for trespass and recovery of possession could not be properly joined in one suit, nevertheless urged this court to dismiss the appeal.

It seems to me plain beyond argument that the Court of Appeal having on the authority of Aromire vs. Awoyemi (Supra) and Ibeziako vs. Nwagbogu (Supra) held that a claim for trespass and recovery of possession are inconsistent in an action such as this, and thereafter proceeded to dismiss all the findings made by the trial Judge against the 5th appellant (Mr. Ige), the entire substratum of Suit No. IK/261/73 would have gone, leaving as the only matter outstanding in this appeal, the dismissal of the appeal against Suit No. IK/74/73, which in effect means the affirmation of the decision of the court of trial in respect thereof.

As shown in the very ample findings of the learned trial Judge which I had set out earlier on in this judgment, it is manifest that the parties in this case on either side had no locus standi to initiate these two proceedings. The learned Judge himself stated unequivocally that he could not grant the reliefs claimed by either family as the proper parties were not before him. This was certainly the basis for his striking out the claim for title in Suit No. IK/261/73.A party prosecuting an action would have locus standi where the reliefs claimed would confer some benefit, on such a party. See the decision of this court in – Senator Adesanya vs. President of Nigeria – 1981 2 N.C.L.R. p. 373. In Duke & Ors vs. Henshaw – 6 WACA p. 200 – the West African Court of Appeal entered a non-suit in an action where it held that it had not been shown that the proper representatives of the plaintiffs were before the court. In Onwunalu VS. Osedeme 1971 – 1 ALL N.L.R. p. 14, this Court struck out the case, having held that it had not been properly constituted. This was also the course adopted by this court in Ekpere & Ors. VS. Aforije & Ors. – 1972 – 1 ALL N.L.A. p. 220.

I am of the view that the learned trial Judge in this matter was clearly in error in the face of his earlier finding that the proper parties in Suit No. IK/74/73 were not before him to have dismissed the case instead of striking it out. A dismissal in that circumstance postulates that that action was properly constituted, a direct antithesis of his finding on representation. Accordingly this appeal succeeds on this ground and my order is that Suit No. IK/74/73and Suit No. IK/261/73 are hereby struck out.

On the second ground of appeal, although the point raised therein is now essentially academic in view of my decision on the first ground, I am in no doubt that the learned trial Judge in this matter was in error to have, in view of the conflict in the traditional evidence adverted to by him, proceeded as he did, to prefer the testimony of the respondents without subjecting such testimony to the test laid down in Kojo II v. Bonsie & Anor. – 1957 – 1 W.L.R. P. 1223 – where Lord Denning (as he then was) stated as follows at page 1226 of the report:-

“Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief. In such a case demeanour is little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of two competing histories is the more probable.”

The learned Judge did not appear to have done this. This ground also succeeds.

On the whole this appeal succeeds and it is allowed. As stated earlier, Suit No. IK/74/73 and Suit No. IK/261/73(consolidated) are hereby struck out. Costs awarded to the respondents in the Court of Appeal, if paid, are to be refunded.

Costs awarded against the appellants in favour of the respondents by the trial Judge, Ajose-Adeogun, J. on 12th April, 1976 are to be refunded by the respondents.

The appellants are allowed N300 costs against the respondents by this court.

OBASEKI, J.S.C.: I have had the advantage of a preview of the judgment delivered a short while ago by my learned brother, Irikefe, J.S.C. and I will also allow the appeal to the extent and for the reasons so ably set out in his judgment.

The main question for determination in this appeal as, in my view, properly formulated in the appellants’ brief, is whether the court ought to have adjudicated in the matter considering the fact that on the pleadings all the parties said to own the land were not before the court. I observe that this point was not raised before the Federal Court of Appeal as the Court of Appeal was then designated. The point was not even raised in the High Court. The point is therefore being raised for the first time.

Two suits Suit No. IK/74/1973 between (1) Buraimoh Oloriode (2) Michael Taiwo Agbenaje; (3) Sampson Taiwo Agbenaje and (4) Madam Kosemani Omoroga (for themselves and for and on behalf of Agbenaje family) and (1) Simeon Oyebi; (2) Salawu Abiodun; (3) Sunday Bankole; (4) Saidu Salami and (5) Madam Janet Bankole and Suit No. IK/261/73 between (1) Simeon Oyebi; (2) Salawu Abiodun; (3) Sunday Bankole; (4) Saidu Salami; (5) Janet Bankole (for themselves and on behalf of other members of Ogadugu family) and (1) Buraimoh Oloriode; (2) Michael Taiwo Agbenaje; (3) Sampson Taiwo Agbenaje; (4) Madam Kosemani Omoroga (5) Mr. Ige (joined by order of court dated 22/7/74 amended by court order made on 3/3/75) were consolidated and tried by Ajose-Adeogun, J. in the High Court of Lagos State holden at Ikeja. In Suit No. IK/74/73, the plaintiffs’ claims against the defendants are for:

“1. Declaration of title in respect of plaintiffs’ piece of land situate, lying and being at Ikole Agbenaje village, via Ipaja in Ikeja District of Lagos State (hereinafter called the property);

2. Possession of the said property;
3. N100.00 being special and general damages for the trespass on the land and the destruction of survey pillars thereon;
4. Perpetual injunction restraining the defendants and/or their agents or servants from committing further acts of trespass upon the said land.”

In Suit No. IK/261/74, the plaintiffs’ claims against the defendants jointly and severally are:

“1. Declaration that the plaintiffs are the absolute owners under native law and custom of all that piece or parcel of land situate, lying and being at Ikola Kogbawosi village via Orile Agege in the Ikeja Division of Lagos State.

2. Possession of the said piece or parcel of land.
3. Special and general damages of N200.00 for trespass committed by the defendants, their servants, their agents and privies to the said piece or parcel of land.
4. Injunction to restrain the defendants, their servants, agents and/or privies from continuing trespass to the piece or parcel of land.”

The statements of claim filed disclosed that the title to the land in dispute is in Suit No. IK/74/73 in Ladega Oyero family consisting of

(i) the descendants of Agbenaje;

(ii) the descendants of Osu Kehinde

and in Suit No. IK/261/73 in Ajayi Odofin family consisting of

(i) the descendants of Ajanaku (of which Ogadubu family is a branch);

(ii) the descendants of Onsegun.

The real question for determination in this appeal, therefore, is whether the plaintiffs/appellants in Suit No. IK/74/73 having by their pleadings before the High Court disclosed that title to the property claimed did not descend to them alone but to the larger family of which they are a branch, had any locus standi to prosecute the claim. In other words, was the judge not at that stage obliged to strike out the claim for declaration of title.

The respondents’ counsel, Mr. B. A. Agusto, did not seriously contest the point taken.

This issue appears to have been clear to the learned trial Judge for in his judgment, he observed:

“Unfortunately, the ensuing confusion is equally reflected in paragraph 9 of the amended statement of claim which states that all lineal descendants of Ero Ebe, being blood relation of Agbenaje family are under native law and custom equally entitled to the land in dispute. The capacity in which the plaintiffs sue is also not free from the conflicts and confusions already described. First and fourth plaintiffs who are members of Ero Ebe family are joined as parties claiming title ‘for themselves’ and at the same time ‘for and on behalf of Agbenaje family.’…………………

I do not believe however that capacity can be so framed to enable title to be conferred on those who, according to the pleadings and the evidence, have no interest whatsoever in the subject matter of the action………………………..

Quite apart from all the conflicts and confusions referred to above, there is on the pleadings and from the evidence, another clog in the claim of the plaintiffs for a declaration of title to the land in dispute. Paragraph 7 of their pleading clearly states that Ladega Oyero who became seized of the said land after the death of his brother, Idowu without issue left two children surviving him. These were Taiwo Areje (otherwise known as Agbenaje) and Osu Kehinde (otherwise known as Edun). They both inherited the land under native law and custom and exercised, while alive, all rights of ownership and possession without interruption from anyone.

In paragraph 9 of the same pleadings, it is stated that the second child, Osu Kehinde (Edun) died about 35 years ago leaving five children surviving him.

Some of Osu Kehinde’s descendants are shown to be still alive while others are shown to be deceased……………………………………..

From the history, the Osu Kehinde branch would equally be entitled to the land in dispute with the Agbenaje branch – both being the two branches descending from Ladega Oyero.

My conclusion from all the above is that I cannot even if the historical evidence of the plaintiffs is accepted, equitably decree a title to the land in dispute in favour of Agbenaje family and the 1st and 4th plaintiffs as claimed.

Such a declaration will ignore the interests of the Osu branch as disclosed in the pleadings and in the evidence. It will also tend to confer title on all the descendants of Ero Ebe via 1st and 4th plaintiffs contrary to part of the pleadings and to the historical evidence so far adduced.

The evidence, in so far as it shows that the land in dispute belongs to the Agbenaje family is at variance with the pleadings and not supported by the latter.”

It is trite law that evidence which is at variance with the pleadings go to no issue.

It is also trite law that where a statement of claim does not support the claim, no reasonable cause of action is disclosed. Therefore, it is elementary to observe that facts to be pleaded must be facts which would establish the cause of action before the court. On a proper study of the pleadings, it appears to me that the pleadings filed by the appellants, i.e. the Agbenaje family disclosed that they have no standing to claim title to land which belongs to Ladega Oyero family.

Where a statement of claim discloses no reasonable cause of action, the proper order to make is to strike out the statement of claim and dismiss the action.

In such a situation, has a trial court jurisdiction to go into the matter

The exercise of judicial powers to decide an issue can only arise where an issue is properly before the courts of law established by law or the 1979 Constitution.

This is so because section 6(1), (2), (5) (g and h) of the 1979 Constitution expressly vests in those courts referred to in section 6(5) the judicial powers of the Federation or the State. And section 6(6) (b) of the Constitution expressly provides that the judicial powers so vested shall extend:

“to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

It is surprising that despite the state of the law and the observation of the learned trial Judge set out above, the learned trial Judge dismissed the entire claim of the plaintiffs against the defendants (Simeon Oyebi & 4 Others) in Suit No. IK74/73.

He quite rightly, in my view, struck out the entire claim of the plaintiffs against the first four defendants, (Buraimoh Oloriode, Michael Taiwo Agbenaje, Sampson Taiwo Agbenaje and Madam Kosemani Omoroga) in Suit No. IK/261/73.

All the orders made against Mr. Ige, i.e. 5th defendant in Suit No. IK/261/73 to wit:

(1) striking out the claim for declaration of title

(2) ordering him to give up possession of the land in dispute forthwith;

(3) awarding N50.00 general damages against him;

(4) making an order of injunction against him; and

(5) awarding N50.00 costs against him; were, in my view, made in error.

However, on appeal to the Court of Appeal, the Court of Appeal properly dismissed all the claims against the 5th defendant in Suit No.IK/261/73 but without adverting to the pleadings in Suit No. IK//74/73 affirmed the order of dismissal made by the learned trial judge against the plaintiffs. It is against this part of the judgment that the appellants now complain. The statement of claim shows that:

(1) the 1st and 4th plaintiffs have no right, title or interest in the land;

(2) the 2nd and 3rd plaintiffs have undivided shares in the land in dispute together with others;

(3) no claim is filed on behalf of Osu Kehinde branch of Ladega Oyero family and the 2nd and 3rd plaintiffs do not pretend to represent their interest.

The statement of claim further discloses in paragraph 9 that the title to the land devolved on Ladega Oyero (deceased) according to native law and custom and that on his death his children, Taiwo Areje (deceased) (otherwise known as Agbenaje) and Osu Kehinde (otherwise known as Edun) inherited the land according to native law and custom and at all times exercised all acts of ownership and possession without disturbance from anyone. The children of Taiwo Areje and Osu Kehinde are still alive.

The question therefore arises whether an order of dismissal in such a case is not prejudicial to the interest of the Osu Kehinde branch of the Ladega Oyero family or rather to the Ladega Oyero family as a whole. I think it is and the justice of the case will be better met by an order striking out the appellants’ claim.

In the final analysis, the question to be determined in this appeal is whether the appellants had locus standi to claim the declaration of title when the facts pleaded in their statement of claim show that title to the land in dispute according to native law and custom vests in the Ladega Oyero family (consisting of Agbenaje family and Osu Kehinde family).

When a party’s standing to sue is in issue in a case, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiceable. See Flast v. Cohen 392 US 83 88 S.Ct. 1942; Senator Adesanya v. President of Nigeria and Another (1981) 2 N.C.L.R. 358.

Having pleaded facts which show that the Ladega Oyero family and not Agbenaje family owns the land in dispute, the Agbenaje family is incompetent to prosecute the claim as it stands and since it was not amended, the proper order to make will be an order to strike out the claim and action.

For the above reasons and those set out in the judgment of Irikefe, J.S.C., the appeal is allowed only to the extent of changing the order of dismissal to one of striking out the appeal. I also endorse the order as to costs made by my learned brother, Irikefe J.S.C.

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SC.46/1982