Chief Godwin Onemu & Ors V. Commissioner For Agriculture & Natural Resources, Asaba & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

The Appellants, as Plaintiffs at the trial Court, sued the Respondents (the Defendants) for a declaration that the parcel of land called Egwe situate in the Neighbourhood of Irri town which they granted to the 1st Respondent for the specific public purpose of using it as a cattle ranch has reverted to them from the moment the 1st Respondent ceased to use it for that specific purpose, as contained at pages 5-6 of the record thus:

a. As against the defendants jointly and severally, a declaration that, that piece or parcel of land known as and called Egwe land lying and situate in the neighbourhood of Irri town within the jurisdiction of this Olah High Court which the plaintiffs granted to the 1st defendant for the specific public purpose of using it as a Cattle Ranch has reverted to the plaintiffs from the moment the 1st defendant ceased to use it for that specific purpose, namely as a Cattle Ranch.

b. As against the 2nd-5th defendants jointly and severally the sum of N500,000.00 (five hundred thousand Naira) being general damages for trespass in that the 2nd-5th defendants

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without the consent or permission of the plaintiffs broke and entered the said Egwe land and commenced farming (cultivating cassava, etc) on the land and also allotting portions of the land to strangers for farming on payment of rent to them.

c. Recovery of possession of the said Egwe land from the defendants.

d. Order of perpetual injunction restraining the defendants jointly and severally, their servants, agents and privies from going on the said Egwe land to do anything whatsoever, including farming or building houses on the land.

e. Any other order or orders as the Court may deem fit to make as the justice of the case demands.

The facts are that the Appellants (with other communities of Aviara and Emede) surrendered their land called Egwe land situate in the Neighbourhood of Irri town in 1973 to the then Ministry of Agriculture and Natural Resources of Bendel State now Delta State for the specific public purpose of Cattle Ranch to rear special breed of cattle from Australia. With the passage of time, the cattle died and the Respondents converted the use of the land for other agricultural purposes which caused the Appellants to sue

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them for the reversion and recovery of same since the specific use for which the land was granted had ceased. At the trial, the Appellants called 5 witnesses while the Respondents featured 3 witnesses. In a considered judgment by the trial Court dated 30/4/99, reliefs 1, 3 and 4 were granted the Appellants. Dissatisfied, Respondents appealed to the Court of Appeal, Benin Division. In its judgment of 28/2/2005, the lower Court allowed the appeal, dismissed the Appellants’ claims and set aside the judgment of the trial Court, hence this appeal by the Appellants.

By a Notice of Appeal dated 25/5/2005, the Appellants formulated 9 Grounds of appeal for the determination of this appeal as contained at pages 225-232 of the record with their particulars. In arguing the appeal, the Appellants vide their learned Counsel filed an Amended Appellants’ Brief dated 29/9/2017 but deemed filed properly on 9/10/2017, settled by Dele Oye, Esq, wherein at page 5 of the Brief, he formulated 4 issues for the determination of the appeal thus:

1. Whether the learned Justices of the Court of Appeal were right in setting aside the findings of the trial Court and holding

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that, the Appellants had not proved the ownership and extent of the land in dispute.

2. Whether the learned Justices of the Court of Appeal were right in holding that the Appellants had not sufficiently proved the exclusive purpose for which the land was donated and acquiesced in the Respondents’ use of the said land for other purposes.
3. Whether the learned Justices of the Court of Appeal were right in holding that proper parties were not before the trial Court and consequently dismissing the Appellants’ claims.
4. Whether the learned Justices of the Court of Appeal were right in allowing the Respondents raise the issue of juristic personality of the 1st Respondent for the 1st time at the Court of Appeal without leave of Court.

On the other hand, the Respondents jointly filed a Brief of Argument dated 16/3/2010 but further deemed filed on 9/10/2017, settled by Chief Victor E. Otomiewo, ChMC (The Honourable Attorney General of Delta State), wherein he also formulated at pages 2-3 of the Brief, 4 issues for the determination of the appeal as follows:

1. Whether the learned Justices of the Court of Appeal were right in holding that

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the Appellants herein failed to prove their assertion that the land, subject matter in dispute, was donated to the Respondent herein for the exclusive purpose of buffalo rearing.

2. Whether the learned Justices of the Court of Appeal were right in holding that the Appellants had not proved the ownership and extent of the land in dispute.
3. Whether the Court of Appeal was right in holding that the Appellants’ suit was not properly constituted in that the necessary party was not before the Court and that the 1st Respondent is not a juristic person.
4. Whether the learned Justices of the Court of Appeal were right in allowing the Respondents to raise the issue of the juristic personality of the 1st Respondent for the first time at the Court of Appeal.

Consequently, the Appellants’ learned Counsel filed a Reply Brief dated 29/9/2017 and deemed filed on 9/10/2017. Both parties adopted their respective Briefs as argued and seek the judgment of this Court in their favour.

I shall consider the Appellants’ issues formulated for the determination of this appeal. Meanwhile, the Appellants’ learned Counsel filed an 18-page Reply Brief dated

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29/9/2017 and deemed filed on 9/10/2017 for the determination of the appeal. I must nevertheless not forget to comment on the Reply Brief. Although the Appellants’ learned Counsel premised his Reply Brief as “replies on points of law to some of the issues raised by the Respondents”, I have seen the Appellants’ learned Counsel labouring to repeat points and issues argued by the Respondents’ learned Counsel without demonstrating that they were fresh and novel. The Appellants’ learned Counsel has gone too far in having a second bite at the cherry even if it presupposes a reply on point of law! This cannot be allowed in law. There is seemingly nothing new in the Respondents’ brief that necessitated this manner of reply from the Appellants’ learned Counsel. This Reply brief is nothing more than a repeat of the Appellants’ argument in his brief of argument. The aim of a Reply brief is to respond in a concise form, new points of law raised by the Respondent and not a re-argument of the appeal. See Per MUHAMMAD, J.S.C in STATOIL (NIG) LTD V. INDUCON (NIG) LTD & ANOR (2018) LPELR-44387(SC). The Appellants’ learned Counsel reiterated the same arguments and cited the

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same cases or added more, as in his main brief, which is not the role of a Reply brief. A Reply brief is limited to finding answers to the questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief. It is not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein. See Per AUGIE, J.S.C in IDAGU V. STATE (2018) LPELR-44343(SC). I shall therefore discountenance all the arguments in violation of this principle.

ISSUE ONE:

Whether the learned Justices of the Court of Appeal were right in setting aside the findings of the trial Court and holding that, the Appellants had not proved the ownership and extent of the land in dispute.

It is submitted by the learned Counsel to the Appellants that the Court of Appeal was wrong to hold that the Appellants did not prove the ownership of the land in dispute having adduced succinct and sufficient evidence to prove their ownership of the land. That a Court is bound to make pronouncements only on issues before it as decided in OYEKANMI V. NEPA (2000) 15 NWLR (PT.690) 439. That there were no material

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contradictions to work against the Appellants. He relied on FATOBA V. OGUNDAHUNSI (2003) 14 NWLR (PT.840) 347. He asserted that the identity of the land was never in dispute and that the identity of lands for declaration of title must not be proved with metric precision. He supported this withOJO V. AZAMA (2001) NSCQR 169 @ 171 PARAS A-D. He argued that even where the land is not well defined, the proper order is non-suit and not dismissal. He relied onRHASIGBA V. ENIH (UNREPORTED) FSC 281/1961 DELIVERED ON 22/6/1962. He urged this issue to be resolved in their favour.

In tackling this issue, the Respondents’ learned Counsel in his issue 2 submitted that there is evidence that the land in dispute acquired by the 1st Respondent belongs to the 3 communities of Irri, Emede and Aviara as testified by PW1 and PW3; and a declaration cannot be granted in respect of an unidentified land. He relied on EZUKWU V. UKACHUKWU (2004) 17 NWLR (PT.902) AT 249. That the inferences and conclusions of a trial Court on matters in dispute must flow from the evidence before it. Thus, that where such conclusions are perverse, the appellate Court must reverse it as decided in

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AJUWA & ORS V. ODILI (1985) VOL.16 NSCC 1130. He urged this Honourable Court to resolve this issue in their favour.

The issue of identity of the land in an action for declaration of title to land is very fundamental. The onus is on the plaintiff seeking the declaration to establish the precise identity of the land he is seeking the declaration. But where the area of land in dispute is well known to the parties, the question of proof of the identity of the land does not arise. In such a situation, it cannot be contended that the area claimed of the land in dispute is uncertain. It must be emphasized that in an action where the plaintiff claims a declaration of title to land and fails to give the exact extent and identity of the land he is claiming, his action should be dismissed. See (Per MUSDAPHER, J.S.C in) GBADAMOSI V. DAIRO (2007) LPELR- 1315 (SC).

In the instant appeal, the area or land under dispute is said to be a grant or donation by three (3) land owning communities. The Appellants herein are laying claim to the portion of land they granted the Respondents out of the other 2 lands granted by Emede and Aviara communities. Thus,

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the necessity to establish and ascertain the boundaries and extent of their own land. Besides, by the pleadings of both parties, it is apparent that the issue of the identity of the land was so strong, hence issues have been joined on the identity of the land belonging to the Appellants or on which they lay claim.

In evidence, the PW1 at page 13 of the record testified under cross-examination at lines 26-28 to the truth that “the land is large. It is in a vast area. I cannot give the size of the land. It extends from Emede to Aviara side.” PW3 admitted also that he did not know the measurement of the land in dispute as he testified at page 19 in the 1st paragraph that “the land extended to Emede but not to the others. I did not measure the area of our land we gave to government.”

It is settled law that where a plaintiff fails to establish with certainty the identity of the land claimed, he must fail in his claim of declaration of title irrespective of the weakness in the case of the defence particularly as it is the law that a plaintiff, in an action for declaration of title to land, must succeed on the strength of his case and not on the weakness of

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the defence. Athough in an appropriate case where the case of the defence supports that of the plaintiff, the plaintiff is entitled to rely on such evidence in support of his case to prove his case. See Per ONNOGHEN, J.S.C in AREMU V. ADETORO (2007) LPELR-546(SC).

The case cited and relied on by the Appellants’ learned Counsel is old-fashioned, otiose and inapplicable. In the present suit, it must be noted and appreciated that the Respondents gave definite and accurate description and identity of the land in dispute especially as pleaded in paragraph 9 page 8 of the record that “the expanse of land now occupied by the Isoko communal farm whose area is 334.37 hectares was surveyed by the Bendel State government surveyor on the 18th of August, 1988…”, which area covers the land in dispute. Of course, for the justice of a case, where land in dispute has not been well identified, the case can be remitted for trial to ascertain the identity of the land as held in AKPAN OBONG UDOFIA V. OKON AKPAN UDO AFIA 6 WACA, 216 AT 217 and ARABE V. ASANLU (1980) VOLUME 12 NSCC 213 AT 218.

However, this case is clearly different since the Respondents were able to

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prove a better title and identity of the land than the Appellants. This issue favours the Respondents and it is so resolved.

ISSUE TWO:

Whether the learned Justices of the Court of Appeal were right in holding that the Appellants had not sufficiently proved the exclusive purpose for which the land was donated and acquiesced in the Respondents’ use of the said land for other purposes.

The learned Counsel to the Appellants has submitted that the witnesses to the Appellants have consistently testified that the land in dispute was given to the Respondents for rearing of buffaloes and corroborated by the Respondents’ witness. However, it was wrong for the lower Court to find on the probative value of an inadmissible hearsay. He supported this with PHARMACIST BOARD OF NIGERIA V. ADEGBESOTE (1986) 5 NWLR (PT.44) AT 713-714. It was further submitted that the lower Court was wrong to substitute its finding with that of the trial Court when it was not perverse but supported by evidence since evaluation of evidence is the primary function of a trial Court. He cited in support OYEBAMIJI V. FABIYI (2003) 12 NWLR (PT.834) AT 295-296. He also argued that it

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was wrong for the lower Court to hold that the Appellants acquiesced on the use of the land since acquiescence was neither pleaded nor issues joined on it. He relied on NNEJI V. CHUKWU (1988) 3 NWLR (PT.81) AT 191. That the lower Court was wrong to raise and decide an issue suo moto without calling on parties to address it. He supported this with AJUWON V. AKANNI (1993) 1 NWLR (PT.316) AT 198-199. He prayed this Court to resolve this issue in their favour.

The learned Counsel to the Respondents argued this issue in his issue 1 that the land was not granted for cattle ranch or any specific purpose but for agricultural purpose. That cattle rearing is also an agricultural activity and part of farming livestock and that Courts are enjoined to place evidence of parties on an imaginary scale as held in ODOFIN V. MOGAJI (1978) NSCC VOL.II AT 277. He submitted that the land was a voluntary grant to the State Government for food production and where a land has been outrightly acquired from a party, he cannot be entitled to a reversionary interest as decided in SANYAOLU V. COKER (1983) NSCC VOL.14 AT 28-40. He submitted that failure to pay compensation does not

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entitle the Appellants to the reversionary interest in the land. He urged this Court to resolve this issue in their favour.

The crux on the exclusive purpose for which the land was donated is to establish the right of reversion and recovery of possession. The Appellants claimed and pleaded that they donated the land as Cattle Ranch while the Respondents averred and pleaded that the land was donated by 3 land owning communities including the Appellants and acquired since 1973 for agricultural purposes, which use never ceased. They maintained that it was clear that the land would be used for food production, which use the land is into. See particularly paragraph 7 of the joint statement of defence of the Respondents at page 8 of the record. For the purpose of clarity and emphasis, the paragraph states that in 1973 the parcel of land in dispute was acquired by the defunct mid-West Region Government and given to the defunct Mid-West Food Production Board to produce food.” Thus, issues on the exclusive purpose for which the land was donated were joined.

Preliminarily also, it has been pleaded and established that it is not only the Appellants that donated

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the said land in dispute but with other communities of Emede and Aviara. In considering this issue, the lower Court of Appeal held the evidence of the Appellants’ witnesses to be inadmissible hearsay while that of the Respondents’ witness DW1 was admissible. In his evidence at the trial, DW1 testified and revealed that the land in dispute “was acquired as far back as 1973 by the then Midwest State for the purpose of food production under Ogbemudia regime.” The evidence of the Appellants’ witnesses having collapsed, this is the only evidence available to establish the exclusive purpose for which the land was donated by the Appellants to the Respondents. A party should plead all the facts and all the documents he intends to rely on at the trial of his case. During that trial, he should establish by evidence, oral or documentary, those facts on which his case rests and depends. The trial Court usually comes to a decision on the totality of the evidence led on both sides. See Per OPUTA, J.S.C in OBASI & ANOR V. ONWUKA & ORS (1987) LPELR-2152(SC).

It is a fundamental procedural requirement that when issues are joined on the pleadings, evidence is

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needed to prove them. It is the person upon whom the burden of establishing that issue lies that must adduce satisfactory evidence. When there is no such evidence, the issue must be resolved against him and the consequences of that are as decisive of the case presented as the materiality of that issue. See Per UWAIFO, J.S.C in A.C.B. PLC & ANOR V. EMOSTRADE LTD (2002) LPELR-207(SC).

In the instant appeal, the Appellants rightly pleaded that the land they donated was for Cattle Ranch. However, this was not proved and established at the trial as against what the Respondents pleaded and proved. Thus, it is a well-established principle of law that if the evidence of a party is at variance with the averment in his pleadings on a material and relevant point, the claim would fail and stand dismissed. This is because parties are bound by their pleadings and evidence which is at variance with the averments in his pleadings goes to no issue and should be disregarded by the Court. See Per IGUH, J.S.C in OKHUAROBO & ORS V. AIGBE (2002) LPELR-2449(SC).

Furthermore, out of the 3 communities that donated their land to the Government, the Appellants did not

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call or join any one of them to support and corroborate them on this claim that “they” donated the land to the Government for “Cattle Ranch” and not for food production. It was not of course disputed that there were some special breed of cattle at some time on a particular portion of the land that later died and phased out but the evidence of food production which is an agricultural purpose has been preponderantly established by the Respondents against the “Cattle Ranch” claim of the Appellants.

Indeed, the lower Court raised the issue of acquiescence suo motu, without giving the parties the opportunity to be heard on them. This error is frowned upon by the law as it does not allow that practice. See Per MUKHTAR, J.S.C in OGUNDELE & ANOR v. AGIRI & ANOR (2009) LPELR-2328(SC). This is nevertheless non-consequential. The issue of acquiescence for the specific purpose for which the land was granted cannot even arise in the face of the fact that the Appellants could not prove the specific purpose for which the land was granted or donated. Since they are not entitled to reversion or repossession, they have equally lost every right concomitant to

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If a grant has been vested in the Government, the right of reversion or recovery automatically ceases. The Appellants did not deny that they granted the land for public purpose of Cattle Ranch to the Government, all I expected was for them to sue for compensation and not otherwise. Title must first be proved to entitle them to the right of reversion and where this has been lost, the proper thing to do was to seek for compensation for the acquisition of their land for public purpose, since all lands whether customary or statutory are under and subject to the overriding public purpose power of the Government. The Appellants were not in title or possession to have even acquiesced their right in the specific purpose for which they granted the land in dispute.

Accordingly, I throw my weight on this issue with the decision of the lower Court of Appeal that the Appellants could not establish the specific and exclusive purpose for which the land was granted to entitle them to the right of reversion and recovery of possession. This issue therefore favours the Respondents.ISSUE THREE:

Whether the learned Justices of the Court of Appeal were right

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in holding that proper parties were not before the trial Court and consequently dismissing the Appellants’ claims.

It is the submission of the learned Counsel to the Appellants that it was an error for the lower Court to hold that the necessary parties i.e. the Delta State Government and the Attorney General of Delta State, were not before the Court. He asserted that the 1st Respondent is a corporation solely vested with legal duties and responsibilities recognized by Statute as decided in FAWEHINMI V. NBA (NO.2) (1989) 2 NWLR (PT.105) AT 595, AG FEDERATION V. ANPP (2003) 18 NWLR (PT.851) AT 208.

He conceded that although the Attorney General is a desirable party, the non-joinder of a party is not fatal to the plaintiff’s case and the Attorney General can only be joined as a nominal party. He cited in support respectively the cases of GREEN V. GREEN (1987) 3 NWLR (PT.61) AT 484 and THOMAS V. LOCAL GOVERNMENT SERVICE BOARD (1965) ALL NLR AT 178. He argued that the lower Court erred in dismissing the suit for non-joinder of the Attorney General of Delta State. He therefore urged this Court to resolve this issue in their favour.

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The learned Counsel to the Respondents on the other hand has submitted and argued that Government property is vested in the Government and for recovery of Government land, the proper party is the Governor of the State or the Attorney General. That by the records, the land was acquired by the Mid-Western State Government, now Delta State Government and the 1st Respondent is the ‘Commissioner for Agriculture & Natural resources, Asaba’, which caused this suit to be caught up by the maxim “nemo dat quod non habet”. That failure to join the State Government is fatal to the suit as decided inLAWAL V. PGP NIG. LTD (2001) 17 NWLR (PT.742) AT 405-406, NIGERIA ENGINEERING WORKS LTD V. DENAP LTD & ANOR (2001) 18 NWLR (PT.746) AT 752; and affects the jurisdiction of the Court as held in MADUKOLU V. NKEMDILIM (1962) ALL NLR 587. He also settled that the 1st Respondent is not a juristic person which made the suit incompetent. He relied on IYKE MEDICAL MERCHANDISE V. PFIZER INC. & ANOR (2001) 10 NWLR (PT.722) AT 555-556. He thus urged this Court to resolve this issue in their favour.

The main issue here centres on the non-joinder of the Attorney General or the Government of

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Delta State as a party to the suit against the Respondents. The question to ask is that would the non-presence of the Attorney General of the State in the matter handicapped and truncated the proceedings at the trial Court or would the case not have proceeded If this was the case, why did the matter continue without the presence of the Attorney General of Delta State

In the instant appeal, the Appellants sued the Respondents for reversion, recovery of possession, damages and injunction on the land in dispute. It must be noted that the Respondents were proper parties and juristic to be before the trial Court since especially the 1st Respondent was armed by the then State Government to act on its behalf. Nevertheless, it must be understood that they all are subject and servants of the Delta State Government especially the 1st Respondent and the 1st Respondent remains answerable to the Delta State Government and does not have the vires to do and undo especially on land matters which is under the exclusive preserve and powers of the State Governor/Government. Nevertheless, having acted for and on behalf of the State Government, they cannot now be

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disqualified simply because the State Attorney General was not joined. If his presence was necessary, evidence would not have been taken without him nor the judgment given.

Where the nature of the evidence before the Court is such that the case of the parties before it can be determined in the absence of those not joined, it can proceed to do so. It is only in those cases where it will not be right and the Court cannot properly determine the issues before it in the absence of the parties whose participation in the proceeding is essential for the proper, effectual and complete determination of the issues before it, will it be necessary to insist on the joinder of such necessary parties. See Per KARIBI-WHYTE, J.S.C in AYORINDE & ORS V. ONI & ANOR (2000) LPELR-684(SC). On the effect of non-joinder or misjoinder of a party, the Court should ask itself the following questions: (a) Is the cause or matter liable to be defeated by non-joinder (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant (c) Is the 3rd party a person who should have been joined in the first instance (d) Is the 3rd party a person

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whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter See Per FABIYI, J.S.C in AZUBUIKE V. PDP & ORS (2014) LPELR- 22258 (SC).

As earlier discussed, the 1st Respondent acted for and on behalf of the Delta State Government, who is the Principal. Thus, he cannot be the alpha and omega in a matter that he is only an agent. I am however vexed and compelled to ask why did not the Attorney General seek to be joined as a party or by the trial Court or the Appellants themselves knowing the nature of the case against the Delta State Government is a land matter that is only vested in the State Government

We must strive therefore to see the nature of the case here. An order for reversion of title to land and to surrender possession of the land that is now vested in the Delta State Government is in reality an order against the Delta State Government and the Attorney General, who is the Principal Legal Officer of the State. He therefore ought to have been involved even as a nominal party for the proper and fair

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adjudication of the case and for fair hearing to be accorded the State Government since it must one way or the other be affected if the case is adverse to it. The 1st Respondent (Commissioner for Agriculture) is not and cannot be in a proper and legal position to revert and restore the land to the Appellants if their claims were proved and established since the land in dispute is now in the possession, power, custody and title of the Delta State Government. In the case of CHIEF ADENIRAN OGUNSANYA V PROF. ISHAYA AUDU & ANOR (1982) 3NCLR 529, it was held that a declaratory relief over a disputed State land ought not to have been made in the absence of the person or entity in whom the land is vested.

The position of the law is that non-joinder of a necessary party in a suit is an irregularity that does not affect the competence or jurisdiction of the Court to adjudicate on the matter before it. However, an order made against a person who was not a party to the action before the Court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action. See Per KEKERE-EKUN, J.S.C in AZUH V. UNION

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BANK (2014) LPELR-22913(SC). By way of illustration, if the case was adverse or against the Delta State Government, its enforcement cannot be possible without the Attorney General or the State being involved as the 1st Respondent cannot give what he does not have since the land is not vested in him but on the State government. Thus, it would and ought to be that the Attorney General of the State was joined as a party. The fatality of this case is not hinged or based on whether he was joined or not since joinder or non-joinder as a general principle cannot be fatal to a case, it is nevertheless based on the fact that the Appellants could not prove their claims against the Respondents as a whole. Although it was proper and necessary to have joined the Attorney General or the State Government of Delta State, the non-joinder is an irregularity that cannot be fatal to this case. Thus, this issue is in favour of the Appellants.

ISSUE FOUR:

Whether the learned Justices of the Court of Appeal were right in allowing the Respondents raise the issue of juristic personality of the 1st Respondent for the 1st time at the Court of Appeal without leave of Court.

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The learned Counsel to the Appellants had argued that the lower Court of Appeal erred to hold that the juristic personality of the 1st Respondent could be raised for the 1st time at the Court of Appeal without the leave of the Court. He contended that since it was a fresh issue, the leave of Court was required. He relied on OSHATOBA V. OLUJITAN (2000) 5 NWLR (PT.655) AT 171-172. He however contended that the 1st Respondent is a body politic having perpetual succession, constituted and recognized by the Laws of Delta State. He cited in support the case ofFAWEHINMI V. NBA (NO.2) (SUPRA) AT 595. He prayed this Court to resolve this issue in the favour of the Appellants and to allow the appeal.

It is however contended by the learned Counsel to the Respondents that the Respondents as Appellants at the lower Court of Appeal on 19/6/2002 were granted leave to file and argue fresh issues for determination from the said additional Grounds of Appeal which leave was granted without appeal against such. Thus, that the Respondents were entitled to raise and argue fresh issues with the leave of Court as decided in EZUKWU V. UKACHUKWU (2004) 17 NWLR (PT.902)

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AT 249. He urged this issue to be resolved in their favour and that the appeal be dismissed.

Without doubt, the 1st Respondent is a legal person who can sue and be sued. The office of the 1st Respondent is constitutionally provided under Sections 192 (1) and 193 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Also, by the decision in THOMAS V. LOCAL GOVERNMENT SERVICE (1965) NSCC AT 129 and CARLEN V. UNIVERSITY OF JOS (1994) 1 NWLR (PT.323) AT 658, the 1st Respondent is a body politic having perpetual succession, constituted and recognized by the Laws of Delta State. Thus, he is a juristic person to sue and be sued.

The issue herein however is whether the issue of the juristic personality of the 1st Respondent could be raised for the 1st time at the lower Court of Appeal without leave. I can better grasp the scenario as narrated by the learned Counsel to the Respondents and not as presented by the Appellants’ learned Counsel. The law frowns and abhors any fresh issue being raised on appeal without the leave of Court but this is not a general law. One of the exceptions is with regard to jurisdictional issues which can be

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raised for the first time on appeal even at the Apex Court without the leave of Court. See AGBULE V. WARRI REFINERY & PETROCHEMICAL CO LTD (2012) LPELR-20625(SC), wherein Per CLARA BATA OGUNBIYI, J.S.C, declared that “it is trite law that the issue of jurisdiction is constitutional and therefore a matter of law. The appellant needed no leave to raise same.”

In the present appeal however, it is apparently on record particularly at pages 109 to 130 that the Respondents herein vide a Motion on Notice sought for leave to raise and argue new points of law. Consequently, at pages 131-131A, the said order was granted on 19/6/2002. I wonder then the hullabaloo the Appellants’ learned Counsel is raising here. This has adequately covered the field. If the issue of the juristic personality of the 1st Respondent was not or could not have been a jurisdictional issue, the leave of the lower Court of Appeal was sought and granted. Thus, they are rightly entitled to argue same. Per MUHAMMAD, J.S.C in STATOIL (NIG) LTD V. INDUCON (NIG) LTD & ANOR (2018) LPELR-44387(SC), dilated on this when he stated that on the point of raising fresh issues or arguments on appeal

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without prior leave of Court, it is trite law that a party can argue or raise fresh points on appeal before an appeal Court where such a party has sought and obtained the prior leave of that appeal Court.” I must therefore hold that the learned Justices of the Court of Appeal were right in allowing the Respondents raise the issue of juristic personality of the 1st Respondent for the 1st time at the lower Court of Appeal after leave was granted the Respondents on 19/6/2002. This issue must be resolved against the Appellants.

In conclusion, the Appellants were not the only family or community that donated their land to the Respondents and having not preponderantly proved and established that the land in dispute belongs exclusively to them, with the identity of the land ascertained and delineated, the purpose for the grant/donation, this case cannot favour them. The joinder or non-joinder of the Attorney General cannot be fatal to their case or affect its substance as it amounts to only an irregularity that can be remedied by joinder. The judgment of the lower Court of Appeal delivered on 28/2/2005 is affirmed. This appeal therefore is dismissed and I make no order as to costs.

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