Dr. Augustine N. Mozie & Ors V. Chike Mbamalu & Ors (2006)
LAWGLOBAL HUB Lead Judgment Report
TOBI, J.S.C.
This appeal involves land in Omenu family of Umueri, Ogbunike in Oyi Local Government Area of Anambra State. The Omenu family owned the Ani Owelle land which consisted of a large expanse of undeveloped and uninhabited land. The 1st appellant, a medical practitioner, desirous of building a cottage hospital and his residential accommodation, applied for a parcel of land in Ani Owelle. He was allocated some plots of land. While it is the case of the plaintiffs/respondents that the application was for four plots, the defendants/appellants said that the 1st defendant/appellant applied for unlimited number of plots, leaving it to the discretion of the family to allocate to him the piece of land which will be sufficient to accommodate a hospital and a residential accommodation.
The 1st appellant built a hospital on the parcel of land allocated to him. The hospital was duly commissioned in 1984. Trouble ensued in 1985 when the allocation made to the 1st appellant raised some controversy and dispute. The respondents sued the 1st appellant together with the 2nd to 6th appellants and asked for five reliefs. The 7th appellant was also in the suit.
The learned trial Judge dismissed the suit of the plaintiffs/respondents. He said:
“It is my view that in the light of the conflicting evidence adduced by the plaintiffs it cannot be said that exh. 3 or the survey plan attached to exh. 8 is forged. The plaintiffs have not proved the alleged fraud beyond reasonable doubt. I hold that in the light of the evidence of DW1 and DW2 which I believe, exh. 3 and the survey plan attached to exh. 8 could not have been forged.”
On appeal, the Court of Appeal set aside the judgment of the trial Judge.
The court said at page 248 of the record:
“In the similar manner, since the 1st respondent took more land than was originally granted to him without recourse to the family, such taking of extra land was done fraudulently and must be set aside. The appeal therefore succeeds and is hereby allowed. Judgment of Amaizu, J. (as he then was) dated 14/7/95 is hereby set aside. The appellants are entitled to all the declarations and orders claimed by them under paragraph 16 of their amended statement of claim…”
Aggrieved, the appellants have come to this court. Briefs were filed and duly exchanged. The appellants formulated eight issues for determination, while the respondents formulated four issues. I will not reproduce the twelve issues here. I do not have such space. But I have enough space to ask what are eight issues doing in an appeal that has only five grounds of appeal This court has condemned proliferation of issues. As a matter of procedure, issues should not outnumber grounds of appeal. This is because issues are framed from one or more grounds of appeal, preferably more than one ground of appeal. The reverse position is the practice and it is that grounds of appeal outnumber issues. See generally Attorney-General, Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646, Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.13I) 137; Anon Lodge Hotels Ltd. v. Mercantile Bank of Nigeria Ltd. (1993) 3 NWLR (Pt. 284) 721.
Let me first take issue No.3 of both the appellants and the respondents.
Issue No.3 of the appellants’ brief reads:
“Whether the court below was right in castigating and reversing the submission of the learned counsel for the defendants/appellants that as none of the plaintiffs/respondents was head of the family and sued in their individual rights, the action was wrongly or improperly constituted and incompetent.”
Issue No.3 of the respondents’ brief reads:
“Whether the respondents had the competence to maintain this action”
Chief Tochukwu Onwugbufor, learned Senior Advocate for the appellants submitted that it was wrong to commence and present the action by the three plaintiffs/respondents in their personal capacities as the property in issue was the undivided communal property of all the adult males of Omenu family. Citing Nsima v. Nnaji (1961) All NLR 441 and Nta v. Anigbo (1972) 5 SC 156, learned Senior Advocate contended that in the Eastern States, it is the practice that before a plaintiff can bring an action on behalf of others, he has to obtain the authorization of those he is to represent and obtain leave or approval of the court to represent them.
Furthermore, the fact that the plaintiffs are suing in a representative capacity ought to have been shown on the writ and statement of claim, learned Senior Advocate argued. He cited Akande v. Araoye (1968) 1 All NLR 214; Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 242 at 342; Ifekwe v. Madu (2000) 14 NWLR (Pt. 688) 459 at 478 and Order 4 rule 1 of the High Court of Eastern Nigeria and now Anambra State.
Learned counsel for the respondents, Mr. Ben Anachebe, submitted on issue No.3 of respondents brief that the appellants cannot raise in this appeal the issue of competence of the respondents to maintain the action as the issue was very well expressed by the learned trial Judge in his judgment. He argued that in the absence of a cross-appeal, the appellants cannot raise the issue. He pointed out that the respondents sued for the protection of not only their individual rights but for the protection of the rights of all Omenu family members excluding the 1st appellant when they claimed in the first head of their reliefs. He finally submitted that it is now too late for the appellants to raise the issue whether the respondents can sue in their own right or not.
With respect, I do not agree with him that the issue, cannot be raised in this court. The competence of a person to file an action relates to jurisdiction and it can be raised in this court. The respondents cannot shut out the appellants from raising the issue merely because “the issue was very well expressed by the learned trial Judge in his judgment.” That law is strange to me, if it is law at all.
It is clear that both issues are confined to the competence of the plaintiffs/respondents to sue in the matter. As they do not extend to the competence of the defendants/appellants to defend the action, I shall not go there. This is because parties are bound by the issues formulated in their briefs. In other words, a party cannot advance an argument outside the issue or issues formulated in the brief without leave of court. This stems from the larger ambit of our adjectival law that parties are bound by their briefs.
On the issue of competence of the plaintiffs/respondents to maintain the action, the learned trial Judge said at page 141 of the record:
“The present suit is instituted by four members of Omenu family in their own right. This fact, in my considered view, has nothing whatsoever to do with the merit of their action. This is because a member of a family having an interest in a family land may sue when the head of family neglects or refuses to do so. It is my view that having taken the action, the person must adduce sufficient evidence to prove his case.”
The Court of Appeal made reference to the above statement of the learned trial Judge. The court said at page 246 of the record:
“Before concluding this judgment, I feel obliged to say a few words about the remarks made by the learned senior counsel for respondents, all be it as an aside, i.e. that none of the appellants was the head of the family, and that they all sued individually, and not for and on behalf of the family. The short answer to this quibble was given by the learned trial Judge of the lower court himself when he stated in his judgment at page 141 of the records as follows.”
The Court of Appeal then quoted the above statement of the learned trial Judge.
As it is, issue No.3 focuses on the above statement of the Court of Appeal and therefore should be taken in that light only.
Paragraphs 1 and 2 of the statement of claim aver as follows:
“1. The plaintiffs and the defendants are members of Omenu family of Umueri Ogbunike in Anambra Local Government Area.
- The Omenu family of Umueri Ogbunike are the owners of that piece or parcel of land known as and called Ana Owelle situate at Umueri Ogbunike and verged green in plan No. MG AN 245/86 filed by the plaintiffs in this suit.”
Paragraphs 2 and 3 of the statement of defence aver as follows.
“2. The defendants admit paragraph I of the statement of claim.
- Save that the Omenu family of Umueri Ogbunike are the owners of that piece or parcel of land known as and called Ana Owelle situate at Umueri Ogbunike, the defendants deny the rest of the averments in paragraph 2 of the statement of claim and will put the plaintiffs to very strict proof.” It is clear from the above pleadings that parties agree: (1) that the plaintiffs and the defendants are members of Omenu family of Umueri Ogbunike in Anambra Local Government Area; (2) that the Omenu family of Umueri Ogbunike are the owners of piece or parcel of land known as and called Ana Owelle. It should be mentioned that the Ana Owelle element is averred to in paragraph 3 of the statement of claim.
It is elementary law that matters admitted in pleadings need no further proof. See Economides v. Thomopulous & Co. Ltd. (1956) 1 FSC 7; (1956) SCNLR 40; Olubode v. Oyesina (1977) 5 SC 79; Balogun v. Labiran (1988) 3 NWLR (Pt. 80) 66; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Sketch Publishing Co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678.
It is good law that members of a family can sue in respect of family property. This was the position of the two courts below and they are right.
In Dadi v. Garba (1995) 8 NWLR (Pt.4l!) 12, this court held that a member of a family has capacity to sue to protect family property. Similarly in Babayeju v. Chief Ashamu (1998) 9 NWLR (Pt. 567) 546, this court also held that any member of the family whose interest is threatened by the wrongful alienation or wrongful interference with the family property can sue to protect his interest whether with the consent or without the consent of the other members of the family, for if he does not act he may find himself being held to be standing by when his ‘rights were being taken away. See also Ugwu v. Agbo (1977) 10 SC 27, Melifonwu v. Egbuji (1982) 9 SC 145; Orogan v. Soremekun (1986) 5 NWLR (pt. 44) 688; Olowosago v. Adebanjo (1988) 4 NWLR (pt. 88) 275; Odeneye v. Efunuga (1990) 7 NWLR (Pt. 164) 618.
It is in the light of the above authorities that I am unable to agree with the submission of learned Senior Advocate for the appellants that the plaintiffs/respondents ought to have commenced the action in a representative capacity and not in their personal capacity. And what is more, learned Senior Advocate did not see the need to file a cross-appeal against the judgment of the learned trial Judge on the issue.
Learned counsel cited the case of Ekpendu v. Erika (1959) 4 FSC 79; (1959) SCNLR 186.With respect, the case is not applicable. In that case, the Federal Supreme Court decided that a sale or lease of family land carried out by the head of family, in which the principal members of the family do not concur, is voidable. A sale or lease of such land by principal members without the concurrence of the head of the family is void ab initio. The case, which dealt with the alienation of family property, cannot be authority for suing on family property.
Assuming that I am wrong and the action ought to have been instituted in a representative capacity, what is the position of the law The rule as to representative actions was derived from the Court of Chancery in England which required the presence of all parties to an action so as to put an end to the matters in controversy. See Anatogu v. Attorney-General of East Central State of Nigeria (1976) 11 SC 109. The rule has been described as a “rule of convenience only.” See Hamisu v. Abergavenny (Marquis of) (1887) 3 TLR 324 at 324. As a rule that was originated for convenience, and for the sake of convenience, it has been relaxed. (See Bedford (Duke of) v. Ellis (1901) AC 1 at page 8). As a rule of convenience, it is a matter which ought not to be treated as rigid but as a flexible tool of convenience in the administration of justice. See Anatogu v. Attorney-General of East Central State of Nigeria. In other words, courts of law should not myopically follow the rule rigidly and fall into a big ditch and find themselves in a state of mirage where it becomes impossible to retrace their steps to do justice in a given case. On the contrary, courts of law should invoke the rule where it is convenient to do so to assist them in doing justice in a given case. It is this aspect of doing justice in a case that vindicates the element of convenience built into the rule. The rule is not cut-and-dry. After all, justice is paramount in the judicial process. It is the cynosure of the process.
In Wiri v. Wuche (1980) 1-2 SC 1, this court dealt exhaustively on representative actions. In the case, the court said:
“The attitude this court adopts in matters of this nature is not a rigid one. It depends on the fact and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and the authority of those they represent, this court does not and will not upset a judgment of the lower court merely on a bare objection of failure to obtain the approval of the court.”
The Court had earlier said at page 18 of the report:
“There is no doubt that the authority for plaintiffs to sue on behalf of a community must come from that community and the order for leave to prosecute on behalf of a community under the rules of the High Court of Eastern Nigeria must come from the court (and, here, we are in agreement with the decision in Oguchi v. Egbuchi (supra) (see also the decision of the High Court of Eastern Region in Nsima v. Ole Nnaji and Others (1961) 1 All NLR 441, otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity.”
It was after the court made the above statement that it came to the conclusion that the court will not upset a judgment of a trial Judge merely on a bare objection of failure to obtain the approval of the court. The decision of this court in Wiri v. Wuche comes to this: although leave is necessary at the trial court to sue in a representative capacity, an appellate court will not upset the judgment merely because such leave was not obtained in the trial court. In Oyewole v. Lasisi (2000) 14 NWLR (Pt. 687) 342, the court held that where a plaintiff institutes an action in a representative capacity, leave of court to sue in representative capacity is superfluous. See also Ifekwe v. Madu (2000) 14 NWLR (Pt. 688) 459, where the court also held that failure to obtain the leave of court to sue in a representative capacity is not fatal as to vitiate the proceedings. The court cannot therefore strike out or dismiss an action just because the plaintiff did not obtain the leave of the court to sue in a representative capacity as this will defeat the justice of the case. See also Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587.
Let me return to the submission of learned Senior Advocate in respect of issue NO.3. I have taken it a bit. I should complete it. While issue NO.3 is confined to the plaintiffs/respondents, the part of the submission of learned Senior Advocate strays to the defendants/appellants. I should take the submission further to justify the position I have taken.
Learned Senior Advocate submitted that when one looks at the position of the plaintiffs/respondents and the defendants/appellants in this case, the action was not properly constituted and that the action was commenced and presented as if it were a personal action between the plaintiffs and the defendants. Citing Awoniyi v. Registered Trustees of Amore (2000) 10 NWLR (Pt. 676) 522 and Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348, learned Senior Advocate contended that none of the members of Omenu family apart from the plaintiffs and defendants in their personal capacities were made parties.
As indicated above, the above submission moves outside issue No. 3 when it extends to the defendants/appellants. And that is against the law of briefs, as it relates to bindingness of issues. I had earlier dealt with that. I will not go further.
I should take the two cases cited by counsel. In Awoniyi, this court held that in civil actions, all parties necessary for the invocation of the judicial powers of the court must come before it so as to give the court jurisdiction to grant the reliefs sought. This decision of this court should be taken in the con of the case. The issue was the failure on the part of the applicant in a motion to make the Registrar General of the Corporate Affairs Commission and the Inspector-General of Police parties. It was in that con this court arrived at the decision. The case did not involve representative action.
In Ayorinde, this court held that where there is no competent defendant on record before the case went to trial and throughout the trial, the action in respect thereof would be struck out on the ground that it is improperly constituted. In view of the fact that paragraph 1 of the statement of claim averred that the plaintiffs and the defendants are members of Omenu family; an averment which was admitted by the defendants/appellants, not much can be made out of the case. This is not a case where all the defendants sued are not members of the Omenu family. It is rather a case where all the defendants, other than the 7th defendant, sued are members of the Omenu family and so an order of striking out the suit, in my humble view, is neither here nor there.
Let me pause here to deal with two different reliefs sought by the appellants in their briefs: the main brief and the reply brief. While they ask that the appeal be allowed and the judgment of the Court of Appeal be set aside in their main brief, they ask for either striking out the case for being improperly constituted or set aside the judgment of the Court of Appeal in its entirety. This is a very new one in the law of brief writing and I do not think I am prepared to learn it.
It is not my understanding of the law of brief writing that a reply brief seeks a different relief outside the main brief. A reply brief, as the name implies, is a reply to the respondent’s brief. A reply brief is filed when an issue of law or arguments raised in the respondent’s brief call for a reply. A reply brief should deal with only new points arising from the respondent’s brief. In the absence of a new point, a reply brief is otiose and the court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief.
The respondent’s brief did not deal with striking out of the plaintiffs/respondents’ case. There was therefore no legal basis for the last sentence in the reply brief as it affects a supposed alternative order of striking out.
With the diversion on the curious relief in the reply brief, I should now take some evidence to show that the parties, other than the 7th appellant, are members of the Omenu family. The 6th defendant/appellant, as DW1 said in evidence-in-chief at page 8 of the record:
“My name is Nathan Mazie. I live at Omenu Quarters,Omueri, Ogbunike. I am a retired school teacher. I know the first defendant. We are from the same family. We have an Omenu family meeting. In 1978, I was the secretary of the Omenu family meeting. During my tenure of office as the Secretary of Omenu family meeting, I received a letter from the first defendant addressed to the family meeting through me as the Secretary.”
DW2, the 2nd defendant/appellant, gave evidence as a member of the Omenu family. He was also a member of the Omenu Land Allocation Committee. It is clear from the evidence of DW1 and DW3 that all the parties in this matter, other than the 7th defendant/appellant, are members of the Omenu family. PW2, as 2nd plaintiff/respondent said in evidence that 1st defendant/appellant is a member of the Omenu family. He, PW2, is also a member of the Omenu family. It is clear from the totality of the evidence that apart from the 7th defendant/appellant, all other persons are members of the Omenu family. I sound repetitive here. I decided to sound repetitive intentionally.
It is not my understanding of the law that all the members of the Omenu family must be specifically named as parties. That will be enumerating or parading a village or community of names, which is most unnecessary. That type of enumeration can only be useful in a census exercise, not in a court of law. So much stationery and time will be wasted and for no good reason.
Another aspect of the law on representative action is that the persons who are to be represented and the persons representing them must have the same interest. In other words, both must have a common interest and a common grievance. Accordingly, where there is a common interest and a common grievance, a representative action will be in order. See Bedford (Duke of) v. Ellis (1910) AC 1 at page 8.
It is not difficult to locate the common interest and the common grievance of the parties in this appeal. It is the Omenu family land, part of which was allocated to the 1st appellant. This is common to all the parties; except the 7th appellant who is the Registrar of Deeds and therefore not a member of the family. The land is called Ani Owelle by both parties. That is the common reference point and the melting pot. Can there be a better case of common interest and common grievance than this I think not.
It is clear from the above that whichever way one looks at issue No.3, it cannot be resolved in favour of the appellants. This is because the law is certainly not in their favour. On the contrary, the law is in favour of the respondents and I so hold.
Let me now take issue No. I in the appellants brief and it is whether the 1st appellant was allocated only four plots or an indefinite or unlimited number of plots.
Learned Senior Advocate for the appellants submitted that the learned trial Judge was right in his judgment rejecting the evidence of the respondents that only four plots were applied for in 1977 by the 1st appellant. He submitted that the respondents did not discharge the onus to prove that only four plots were applied for by the 1st appellant. He cited ACB v. Emostrade (2002) 8 NWLR (Pt. 770) 501; Elias v. Omo-Bare (1982) 5 SC 25 and Union Bank v. Nnoli (1990) 4 NWLR (Pt. 145) 530 at 544. He examined the evidence of PW 1, PW2, DW 1, DW2 and exhibits 1, 3, 8, 9, 12, 13 and 14. Learned counsel for the respondents on issue No.1 in the respondents brief, submitted that the Court of Appeal was right in holding that the learned trial Judge was wrong in his judgment on the number of plots applied for by the 15 appellant He called in aid the evidence of PW2.
The evidential burden of proof that the 1st appellant was allocated indefinite number of plots shifts to the appellants after the respondents proved that only four plots were allocated to the 1st appellant See sections 136 and 137 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria. See also Balognn v. Labiran (1988) 3 NWLR (Pt. 80) 66; Usman v. Kusfa (1997) 1 NWLR (Pt.483) 525: Braimah v. Abasi (1998) 13 NWLR (Pt. 581) 167; Eboade P. Atomesin (1997) 5 NWLR (Pt. 506) 490.
Did the 1st appellant discharge the burden placed on him In other words, did he give evidence that he was allocated indefinite or unlimited number of plots In his evidence-in-chief, 1st appellant as DW3 said at page 99 of the record:
“I put up an application for the land to the family in 1978. After the family had looked into the application, I was granted the land … The land committee carved out the land for my cottage hospital and residential quarters.”
Under cross-examination, 1st appellant said:
“I applied for a piece of land for building a hospital with residential quarters … I specified that my application is for land to erect a hospital with residential building. I left it open for the authorities in the family to decide on the area that will meet my needs.”
I do not see any evidence on the pw1 of the 1st appellant that he applied and was granted an unlimited number of plots. By the last sentence above, it is clear that the authority to grant number of plots of land to the 1st appellant was with the family of the respondents, as in his own words, “I left it open for the authorities in the family to decide on the area that will meet my needs” In the exercise of their authority, the family decided on four plots. I ask: why the furore After all, the “authorities in the family” in the con of the evidence of 1st appellant gave final stamp or provided the final stamp and it is four plots. Period or full stop.
What did the respondents say about the issue PW2 said in evidence in chief at pages 56 and 57 of the record:
“In 1977, the 1st defendant applied to the family for four plots of land on which to build a cottage hospital. The family granted the application. In compliance with the usual practice, the land committee, to which the 2nd-6th defendants belonged at the material time, were asked to carve the four plots for the 1st defendant. The four plots would measure 1847.506 sq. meters … After the grant of the land, there was disaffection and enmity amongst the members of the family. This was because, the portion granted to the 1st defendant by the family and the portion he later claims as having been granted to him by the family was different. The land he claimed was larger than the land he was granted. The land he claimed measured 1.824 hectares or 18,239.186 square metres. The place where he now erected his residential building is not the place he was granted the four plots.”
The above is a more cogent evidence which stands the evidence of DW1 on the head and beyond to a stand-still. It overshadows the evidence of DW1. Witness clearly said in evidence that the land 1st appellant claimed was larger than the land he was granted. Even going by the evidence of 1st appellant as stated above, he did not make out a case for allocation of unlimited plots.
Exhibit 12 cannot be useful to the appellants because it did not contain the number of plots allocated to the 1st appellant. On the contrary, exhibit 12 was the application by the 1st appellant. An application can ask for anything under the sun, including the unlimited number of plots but the family may decide to give a specified number of plots.
Based on the evidence before the learned trial Judge, the Court of Appeal said at page 248 of the record:
“In the similar manner, since the 1st respondent took more land than was originally granted to him without recourse to the family, such taking of extra land was done fraudulently and must be set aside.”
In the absence of any competing evidence on the part of the appellants, I find it difficult to hold that the above decision is wrong, particularly to the effect that “the 1st appellant took more land than was originally granted to him.”
The above evidence apart, it is not the usual practice for families to allocate unspecified or unlimited plots of land to persons. The usual practice is that specific number of plots is allocated to persons in need. And that is the case of the respondents. The case of the appellants is a very tall one beyond the tallest human being on earth, and this court cannot reach that height. Where a practice has been for a very long period, probably competing with time immemorial, the burden is on the party taking the contrary position to lead evidence that the practice was not followed intentionally. I do not see any such evidence on the part of the appellants.
Accordingly, I resolve issue No.1 in favour of the respondents. I do not see any need to take the other issues. My cup in this appeal is full. I should stop here. In sum, the appeal fails and it is dismissed. The judgment of Court of Appeal is affirmed. I award N10,000.00 costs in favour of the respondents.
SC.345/2001
