Onyia Nwagwu Ngwu & Ors. V. Ugwu Onuigbo & Ors. (1999)

LAWGLOBAL HUB Lead Judgment Report

U. ONU, J.S.C

The present two plaintiffs/respondents by a motion on notice dated the 14th day of September and filed in this court on the 15th day of September, 1999, prayed and their prayer was granted, for them to be substituted in place of the four original plaintiffs (now deceased) that initially sued the seven defendants/appellants in a representative capacity. In that suit which was tried by Nwokedi, J. (as he then was) in the High Court of the defunct Anambra State, holden at Enugu, the four original plaintiffs/respondents claimed against the seven defendants/appellants, also in a representative capacity in paragraph 25 of the formers’, Statement of Claim, as follows:-

“25(a) Declaration of title of communal ownership of the pieces and parcels of land known as “AbaIi” and “Osusu” situate at Okwe Amankwo Ngwo, Udi Division within the jurisdiction of this Honourable Court. The said parcels of land are more clearly shown and demarcated in plan No. MEC/752/74 of 13/11/74 attached to this Statement of Claim and verged pink therein.

(b) N500.00 (five hundred naira) being general damages for trespass committed by the defendants in their said lands.

(c) A perpetual injunction restraining the defendants, their servants, agents and/or privies from entering the lands in dispute or in any manner whatsoever interfering or dealing with same without prior consent of the plaintiffs.”

In the ensuing trial where evidence was led on the lines pleaded and after addresses, the learned trial Judge, on 12th May, 1980 following a copious review of evidence and specifically calling on counsel to address him on the desirability or otherwise of a non-suit or dismissal, proceeded to non-suit the respondents. The latter being aggrieved, appealed to the Court of Appeal (hereinafter in the rest of this judgment referred to for short as the court below) which on 14th December, 1987 allowed the appeal granting them all the reliefs prayed for except the claim for injunction. The court below proceeded to hold, inter alia as follows:-

“Thus, the findings of fact by the Judge about P.W.5 and P.W.7 are that these are respectable, reliable, old men, from the area of the disputes whose testimonies he accepted as truthful. And these two stated that the two lands Osusu and Abali belong to the appellants and the respondents who have communal interest in them. The P.W.7 said categorically that the Okwe Uwani people, his own village, have no interest in these two lands, as they of Okwe Uwani, have their own land called Okeagu. Since the judge believed these two old men, P.W.5 and P.W.7. I fail to see how he could have difficulty in believing as a result of their testimonies that Okwe Uwani people have no interest in these two lands, and so there could be no need for joining them as parties in this suit Surely, that conclusion must follow and flow from his acceptance of the evidence of P.W.5 and P.W.7. He did not need to speculate about the status of P.W” In Okwe Uwani Village. Both P.W.5 and P.W.7 said that the two lands Osusu and Abali belong to both appellants and respondents, and this was the only issue between these two parties in dispute. I do not see how a third party must be considered. If the third party wants to fight both these parties in future about these lands, or either of them, it is then in the future action that the issue of Standing By as enunciated in the case of Whtcherley v. Andrews (1871) LR. 2 P & D. 327 will be considered. Reliance on Ekpere & Ors. v. Aforije & Ors. (1972) 1 ANLR 220 again would afford no help in this appeal as long as the only quarrel between the parties is whether or not the appellants and respondents have communal interest in these lands. Where there is clear evidence which the trial judge believed and which established this community of interest in these two lands and in the two contestants. I believe that an order of non-suit does not lie; the declaration asked for ought to have been given. The Ground of Appeal alleging, misdirection in law non-suiting the plaintiffs on the score of non joinder of the Okwe Uwani Village therefore succeeds.”

The defendants/appellants (hereinafter referred to as the appellants simpliciter), being aggrieved by the above decision have appealed to this court upon three grounds and later with leave a fourth ground, attacking the decision.

Only the appellants filed a Brief of argument before the 29th June, 1999, the day we first heard this appeal. We did so upon the appellants’ Brief alone and hence we reserved judgment to 24th September, 1999. This was not to be because before judgment day arrived, learned counsel for the respondents brought the motion referred to in the opening sentences of this judgment firstly, for substituting all four original plaintiffs (then deceased) with the present two respondents and secondly, to extend time for them to file their Brief of argument. After the prayers were accordingly granted as prayed, time was extended to the 4th day of October. 1999, for them to file their Brief of Argument subject to their payment of any outstanding penalties. The appeal was thereupon adjourned a 20th October, 1999, for hearing with N1,000.00 costs to the appellants.

Further, before, the date fixed for the hearing of the appellants’ appeal arrived, namely, 20th October, 1999, learned counsel for the appellants submitted that as on 29/6/99, he had abandoned his application to argue additional grounds of appeal, he was seeking leave to withdraw same while asking to file a Notice of Preliminary Objection. The latter having been withdrawn was accordingly struck out leaving the stage for the consideration of the appeal premised on the issues submitted by the parties in their Briefs of Argument. The two issues we are now called upon by the appellants to determine in this appeal (issue (c) having been abandoned by learned counsel at the hearing on 29th June, 1999) are:-

“(a) Whether the Court of Appeal was right – after the trial court had unquestionably evaluated the evidence, and ordered a non-suit in view of the fact that Okwe Uwani people were not joined, to have disturbed his findings, and held that Okwe Uwani’s interest should not be considered

(b) Whether the Court of Appeal was right not to have considered the concession of Counsel on a non-suit in the trial court, retracted at the Court of Appeal’)”

The respondents in the Brief of Argument I had herein-before alluded to proffered two identical issues to those formulated by the appellants. These Briefs were exchanged by the parties in accordance with the rules of court and in my consideration of them, I propose to adopt the appellants’ as sufficient to dispose of the appeal. But first, the brief facts of the case:-

The respondent’s as plaintiffs in Suit No. E/118/74 in their 25 paragraphs Statement of Claim commenced in the High Court of former East Central State, averred that they – the respondents. the appellants and Okwe Uwani family (the latter being no parties to the suit herein) have a common ancestor called Aguma Aneke, who in his life time did not share his lands (including the land in dispute) among his four sons by his two wives, viz: Omesu, Enwene, Obu and Eze. Further, that the four sons lived together, worshipped common shrines, had a common play ground and a town hall. They alleged that their common ancestors’ lands Abali, Osusu, and “Okeagu” vested in the appellants and respondents and Okwe Uwani family on the death of Aguma Aneke aforesaid. The respondents further averred that Eze was the ancestor of Okwe Uwani and that fifteen years before the institution of the Suit giving rise to the action herein, the Okwe Uwani family in an unnamed Suit (not tendered at the trial concerned) successfully claimed ownership of “Okeagu” land leaving “Osusu” and “Abali” lands in dispute to the respondents and appellants. The respondents finally maintained that despite binding agreements between them to regard and enjoy the said “Abali” and “Osusu” lands in common, the appellants, without their consent in 1966, trespassed on the lands in dispute, by installing boundary beacons thereon thus giving the impression of exclusive ownership of the said lands.

The appellants for their part, countered in their 27 paragraphs statement of defence by averring that Aguma Aneke had three wives and that one of those wives begat Eze (the ancestor of Okwe Uwani who are not parties to this suit), the other wife begat Omesu and Obu the third, begat Enwene (the ancestor of the appellants). Further, that the original ancestor Aguma Aneke, shared his property including the land in dispute to his family on the basis of male children of one wife inherited per stripes i.e. according to the stocks or by the number of families. It is also the appellants’ case that Aguma Aneke shared his lands into three parts for his three branches that is one part to Okwe Uwani family (who are not a party to this case), another to the appellants and the other to the respondents. Finally, the appellants stated that the respondents and appellants never enjoyed any property in common as each family, as well as Okwe Uwani family had always had its own share from Aguma Aneke.

So much for the facts and background of the case giving rise to this appeal, I now wish to deal with the issues in their order of sequence taking cognisance of the oral submission made by learned counsel for the appellants in elaboration as follows:-

Issue (a)

This issue questions whether the court below was right after the trial court had unquestionably evaluated the evidence, and ordered a non-suit in view of the fact that Okwe Uwani people were not joined, to have disturbed his finding, and held that Okwe Uwani’s interest should be considered.

It was the appellants’ submission on this issue firstly, that the learned justices of the court below exceeded the bounds of their duty as an appellate court by copiously taking the proceedings of the trial court apart and quoting profusely the evidence and cross-examination of the witnesses especially P.W.5 at pages 162 to 165 of the Records. This submission, in my view, is justified in that a cursory look at those pages indicate clearly that the court below in quoting in extenso from the cross-examination of particularly the evidence of P.W.5 at the trial court, was thereby inquiring into the dispute rather than into the ways the dispute had in fact been tried and settled. For as Karibi- Whyte, JSC cautioned in Ajadi v. Okenihun (1985) 1 NWLR (Pt 3) 484 at page 492:-

“It is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to enquire into disputes, but to inquire into ways the disputes have been tried and settled.”

The above appears to be an-echo of the immortal words of Hurley C.J. sitting at the High Court of Northern Nigeria in the case of Igboke Oroke v. Chukwu Ede (1964) NNLR 118 at pages 119-120:-

“‘It is the business of a trial court to decide disputes by trying cases. It is not the business of an appeal court to re-open disputes by trying cases again: an appeal court’s duty is to see whether trial courts have used correct procedure to arrive at the right decisions. An appeal court does not inquire into disputes, it inquires into the way in which disputes have been tried and decided. Since a dispute is to be decided by the trial court and not in the appeal court, each party must make the whole of this case in the trial court and call all his witnesses there, he should not be allowed to improve on his case in the appeal court …”

As is apparent on the record, before the learned trial Judge decided to non-suit the respondents, he applied the correct procedure by calling on counsel on either side to address him on the propriety of doing so. Thus, what the learned Justices of the court below did was no more than to review the evidence and proceeding to decide that if they were siting as a court of first instance, they would have exercised their discretion otherwise by not ordering a non-suit of the respondents’ claims.

Since the court below did not declare the findings of the trial court at page 101 and pages 105-106 perverse or wrong, namely by declaring the same as constituting “violation of some principles of law or procedure” in the way it arrived at its decision by ordering the non-suit, it was wrong of them to have embarked on a re-valuation of the evidence of P.W.5 and P.W.7, and use it as an excuse for interfering with the findings of the trial court. See Amasa & Ors. v. Kososi (1986) 4 NWLR (Pt.33) 57: Adimora v. Ajufo (1988) 3 NWLR (Part 80) 1; Okafor v. Idigo (1984) 6 S.C. 1: (1998) 1 SCNLR 481; Obodo v. Ogba (1987) 2 NWLR (Part 54) 1; and Ebba v. Ogodo (1984) 4 SC 84 at 90; (1984) 1 SCNLR 372.

In his oral expatiation of the appellants’ Brief on 20th October, 1999, learned counsel for them, Mr. Ngige submitted that the court below was in serious error in setting aside the order of non-suit entered by the trial court, adding that there is no way the case can be heard without the joinder of the co-owners, Okwe Uwani people and hearing them. The respondents, he argued, had said that the land they inherited from their forebears was never shared. We were referred to paragraph 7 of the Statement of Claim at page 5 of the Record and also the testimony of P.W.1 at pages 33 and 34 and his Cross-examination at pages 37-38 of the same Record. This story of the appellants that their ancestor never shared any of his land, it was argued, was believed vide page 86 of the Record, thus necessitating the Order of Non-Suit which became inevitable. The cases of Onibudo v. Akibu (1982) All NLR 207 (Green cover), and Okpala v. Ibeme (1989) 2 NWLR (Pt 102) 208 were called in aid. After pointing out the concession made by the respondents at pages 8, 8687 of the Record and paragraph 15 of the Statement of Claim, the latter on which no oral evidence was given to explain it only an order of non-suit will accord with the justice in the instant appeal.

The learned trial Judge, in my view, was perfectly right to have considered what right or position was held by P.W. in Okwe Uwani for him to compromise his peoples’ right over “Abali” and “Osusu” lands in a case in which his people were not parties. See Order 48 Rule 1 of the High Court Rules applicable in the defunct Anambra State which provided that:-

“(1) The court may in any Suit, without the consent of parties. non-suit the plaintiff, where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court”.

See also Enigwe v. Akaigwe (1992) 2 NWLR (Pt 225) 505 at page 538 where this court (per Akpata, JSC) stated in an unambiguous language as follows:-

“The order of a non-suit is a creation of statute. It is applied in accordance with the intendment of the provision of the relevant statute. The provisions for its application have been abrogated in a number of Common-Wealth jurisdictions, particularly in the High Court in England. It has ceased to be applied in Lagos State. The High Court of Anambra is still with the power to non-suit in proper cases.”

The opening phrase of Order IV Rule 5(1) of the High Court Rules of Anambra State. Cap. 61 which commences “if it shall appear to the court…” etc provides for the joinder of persons who may be entitled to or who claim some share or interest in the subject matter of the suit etc. As a matter of fact, it is within a trial court’s discretion to order a joinder and if the appellate courts should, as a matter of practice, overturn the exercise of such discretion when such exercise is not perverse, except that the appeal court would have thought otherwise then, it is farewell to the exercise of discretion by trial courts. Thus, as Obaseki, J.S.C, lucidly put it in Saraki v. Kotoye (1990) 4 NWLR (Pt 143) 144 at 171, paragraphs E-G:

“The proper role of a Court of Appeal where there is a proper exercise of discretion is not to interfere with the decision. To do so merely on the ground that the appellate court would have exercised the discretion differently is an assault on justice and not within the statutory powers of the appeal court.”

See also University of Lagos v. Olaniyan (1985) 1 NWLR (Part 1) 156 at 163; University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148; Demuren v. Asuni (1967) All NLR 94 at 101; Solanke v. Ajibola (1968) 1 All NLR 46 at 52; Sonekan v. v. Smith (1967) All NLR 329; Niger Construction Co. Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787; and the latest in the series of Nwabueze v. Nwosu (1988) 4 NWLR (Pt 88) 257 at pages 262 and 266; Lauwers Import-Export v. Jozebson (1988) 3 NWLR (Pt 83) 429 and In Re: Adewumi & Ors. (1988) 3 NWLR (Pt 83) 483, where this court has laid down as well as re-stated the principle that discretion ought not to be reversed merely because an appellate court might think it quite plain that they would have adopted a different course.

From the foregoing, I am of the firm view that Okwe Uwani people are necessary parties whose joinder would effectively and finally determine the rights of the parties over “Osusu” and “Abali” lands in dispute. See Green v. Green (1987) 3 NWLR (Pt 61) 480. It is therefore an error in law, in my view, for the court below to hold as follows:- ‘

“…I do not see how a third party must be considered. If the third party wants to fight both these parties in future about these lands, or either of them, it is in the future action that the issue of standing by as enunciated in …………… will be considered.”

That the court below was in serious error in making the above pronouncement can be seen in this court’s case of Alhaji A. Onibudo & Ors. v. Alhaji A.M. Akibu & Ors. (1982) All NLR (2nd Edition) page 207 which is on all fours with the instant case. In that case, the Plaintiffs brought an action against the defendants seeking among other reliefs a declaration to a certain piece of land, possession of the land, account of all monies collected by the Defendants as well as an injunction restraining the Defendants from collecting monies from the occupiers of the land in dispute. In the course of the trial, the name “Oko Awo Muslim Community” kept featuring as a party to be affected one way or the other by the outcome of the case. Yet, none of the parties applied to join the Community. The learned trial Judge after reviewing the evidence gave judgment to the Plaintiffs, which was later upturned by the Court of Appeal. On a further appeal to this Court, the issues of non-joinder of “Oko-Awo Muslim Community” and the desirability or otherwise of an order of non-suit in consequence thereof were considered. It was held (per Aniagolu, JSC) as follows:-

“The evidence clearly shows that the present Mosque was built by, and with the financial contributions of, the Oko Awo Muslim Community. The said Oko-Awo Muslim Community has undoubted interest in the said Mosque. They were not joined in the suit. But, ideally they ought to have been joined either by the plaintiffs at the institution of the claim or by the named defendants who, at some stage after the institution of proceedings could have applied to defend the action, in a representative capacity, for themselves and for and on behalf of the Oko Awo Muslim Community in accordance with Order 13 Rule 14 of the High Court of Lagos State (Civil Procedure) Rules, Cap. 52… “Not having joined the Oko Awo Muslim Community in this suit and it being necessary, as I have said that the interest of the Community should be adjudicated upon, it is now necessary to decide on what order to make in this appeal. Should this court:

(i) Dismiss the appeal simpliciter and thereby confirm the judgment of the Court of Appeal dismissing the plaintiffs’ claim especially in view of the confused stage of their evidence…

(ii) Order a new trial of the case in the High Court before another Judge; or

(iii) Non-suit the plaintiffs: or

(iv) Simply strike out the case.”

After deliberating on the appropriate order to make in the circumstances, the learned Justice continued thus:-

‘To dismiss the appeal and thereby confirm the order of dismissal made by the Court of Appeal, of the plaintiffs’ case, will undoubtedly occasion injustice to the plaintiffs whose proprietary interest in some portion, even if undefined area of the land, could, in any subsequent claim over the land, or part thereof, be met with a plea of estoppel per rem judicatam …. I am therefore, of the view that a dismissal order is, in all circumstances, inappropriate. On the issue of whether to order a new trial or strike the case out, Mr. Ajayi, in submission, would prefer an order for retrial, with liberty for the parties to apply for any amendments they may wish, while Chief Williams would prefer a striking out. Faced with:

(i) the non-joinder of the Oko-Awo Muslim Community;

(ii) the inadequacy in the plaintiffs’ pleadings;

(iii) the confusion in the account given by the Plaintiffs about their family lineage, and

(iv) the admission of the defence of item 7 of the brochure.

Exhibit N, calling the Mosque “Alfa Sun manu Onibudo” House.

“I think the best order that would have met the justice of the case would have been one of non-suiting the plaintiffs. This is because the plaintiffs, having regard to what I have already said about their proprietary interest in some portion, though undefined area of land, have not failed in toto and the defendants would not themselves be entitled to judgment” (Italics is for emphasis).

See also the case of Okpala v. Ibeme (supra) whose facts are not too dissimilar to those of the case under consideration and where this court held, rightly in my view, that an order of non-suit was the most appropriate to make in the circumstances. In the instant case, the learned trial Judge at page 105 of the Records had found, rightly in my view, as follows:-

“It is clear from the evidence of the plaintiff’s that they still consider all Aguma Aneke’s land un-shared. If a declaration must be made, it must as of necessity include the Okwe Uwani … It seems to me that the Okwe Uwani people are squarely people to be affected by any decision arrived at in this case.”

These findings were not faulted by the court below but they preferred to postpone the fate of Okwe Uwani people until a future action. This ought not to be allowed to have sway here because it will easily afford the respondents an escape route should a new action be embarked upon against them later by their having to rely on the doctrine of estoppel by standing by, which is but a specie of estoppel by conduct. Indeed, it is a kind of estoppel which is applied where because a party omitted to intervene in a pending action affecting his interest; he is precluded by the result of the action although he was not a party thereto. See Wytcherley v. Andrews (supra); Ojiako v. Oguece (1962)1 All NLR 58; Ekpoke v. Usilo (1978) 6-7 SC 187; Etiti v. Ezeobibi (1976) 12 SC 123; Ogundaini v. Araba (1978) 6-7 SC 55; Abuakwa v. Adanse (1957) 3 All E.R. 559; Obodo v. Ogba (1987) 2 NWLR (Pt 54) 1 at 15; Alase v. Olori Ilu (1964) 1 All NLR 390 at 396; Joe Iga v. Ezekiel Amakiri (1976) 11 SC. 1 at 12-13;isango v. Akinkunmi (1955-56) WNLR 39 and Wilson Etiti v. Peter Ezeobibi (1976) 12 SC. 123 at 131. This issue is accordingly answered in the negative.

Issue (b)

The appellants’ grouse in issue (b) is whether the court below was right not to have considered the concession of counsel on a non-suit in the trial court, retracted at the court below. To this end, our attention was adverted to page 87 of the records where the respondents’ counsel conceded as follows:-

“The non-joinder of Okwe Uwani is a technicality … It is only fair that the plaintiffs should not be permanently shut out of their rights”,

The gravamen of respondents’ case both in their written Brief and in oral submission in elaboration thereof as rendered by learned counsel for them, Mr. Ikwueto, may be put shortly as follows;

“That a cursory appraisal of what is contained at pages 4 and 5 (paragraph 16 of the latter) of the Record, the evidence of P.W.7 (a member of the Okwe Uwani family) at page 56 as well as that of D.W.6 – all pointing to the fact that the joinder of Okwe Uwani family in the suit is not necessary for its determination. The cases of Green v. Green (supra) and Onibudo v. Akibu (supra) were called in aid, adding that acting on the principle decided in the case of A.G., of Oyo State v, Fairlakes Hotel Ltd. (1988) 5 NWLR (Part.92) 1 at page 22, counsel can agree to a non-suit and that such an agreement (in this case by concession) will be binding on his client.”

Albeit, the trial court proceeded to make the order asked for by the appellants when it accordingly entered a non-suit. Now, this Court in the case of Mosheshe General Merchant Ltd. v, Nigerian Steel Products Ltd. (1987) 2 NWLR (Pt55) 110 at 119; (1987) 1 NSCC 502 at 508, Aniagolu, JSC quoting from Strauss v. Straus.(1866) L.R. 1 Q.B. 379, observed as follows;-

“… Counsel retained to conduct a case has general authority to decide, in his discretion, on how to conduct the case. Having retained Counsel, the client is bound by his conduct of his case subject to this that the client can repudiate his Counsel and withdraw brief from him, if he does not approve of Counsel’s conduct of the case.”

See also Festus L. Adewunmi v. Plastex (Nig.) Ltd. (1986) 6 S.C. 214 at 223; (1986) 3 NWLR (Pt.32) 767 where Eso. J.S.C. said; inter alia, thus:-

“A lawyer is a professional, and vis a vis a client, he is on contract, and his professional skill, hired by the client, is to be employed at his discretion. After all, he is employed to deal with learned men, in learned surroundings, and he himself is learned, which the client, even if he is a lawyer himself, is not learned for the purpose of the case…

For as Oputa, J.S.C. stated the law in Ajide v. Kelani (1985) 3 NWLR (Pt 12) 248 at page 269:-

“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in his pleadings; then turn summersault during the trial; then assume nonchalant attitude in the Court of Appeal; only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seek.”

In other words, betting on both sides, to wit: hedging instead of remaining constantly steadfast by a party ought to be deprecated while consistency in presentation is and remains the golden rule which a party must imbibe to make litigation meaningful. None of the principles as well as cases relied on by the respondents in my respectful view, avails them.

The result of all I have been saying is that the appeal wholly succeeds and is accordingly allowed by me. There is hereby entered an order non-suiting the plaintiffs/respondents with N10,000.00 costs to the appellants.

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SC.167/1993