Oterail Odadhe v. Otowodo Okujeni & Ors. (1973)

LawGlobal-Hub Lead Judgment Report

IBEKWE, J.S.C

In an action instituted in the Ughelli High Court, the plaintiff herein appellant claimed for himself and on behalf of the Imowhe family of Emevor against the 1st and 2nd defendants, ‘a3500 damages for trespass on the plaintiff’s parcel of land known as Ubiedhor, situate and lying at Ubiedhor village in Isoko District of Urhobo Division. Plaintiff also claimed an injunction to restrain the defendants their servants and agents from entering or in anyway dealing with the said land.

Pleadings were ordered and filed. In the relevant portions of his statement of claim the plaintiff averred as follows:-

“2. The lands in dispute are shown in the plan filed in this action and are part of the land of the IMOWHE family which is verged green in the said plan.

3. The whole of the land verged green in the plan filed in this suit belongs to the IMOWHE FAMILY who have been in possession from time immemorial during which period the plaintiff and his family (IMOWHE) have exercised maximum acts of ownership and possession over the said land, including the lands in dispute.
4. Some-time in 1962 second Defendant broke and entered the parts of the land verged red and marked “B” and started farming thereon without the permission of the plaintiff first obtained.
5. Plaintiff warned the second Defendant against continued trespass but second Defendant refused and continued with his trespass and cut down a number of valuable trees.”

The 2nd defendant in reply averred as follows:-

“3. With regards to paragraphs 2 and 3 of the Statement of Claim the 2nd defendant stoutly denies the land in dispute as belonging to IMOWHE family and that at no time has IMOWHE family either been in possession of the aforementioned land in dispute or exercised maximum acts of ownership.

4. That Urume family of Emevor had put the aforesaid land as shown in the plan filed by the 2nd defendant, in custody of his father Eni who died since 1944 and who had lived on the land with the 2nd defendant Akpovili Eni and had exercised maximum acts of possession undisturbed.
5. That the eldest male member of Urume family now living is Ontaturu to whom the 2nd defendant owes allegiance and recognises and his landlord by making periodical gifts, but before Onaturu was one OWHE EKOKOTA.
6. That the 2nd defendant stoutly denies paragraphs 8 and 9 of the Statement of Claim and says that the plaintiff and his people have never been in possession of the land in dispute and cannot therefore complain of trespass.”

From the pleadings, it is clear that the gist of the 2nd defendant’s case is that his father Eni was put on the land by the Urume family of Emevor and that, after the death of his father in 1944, he the 2nd defendant has continued to be on the land and has exercised “maximum acts of possession undisturbed.”

The 2nd defendant recognises the oldest male member of Urume family, one Onaturu, as his overlord, to whom he makes periodical gifts in acknowledgment of the latter’s title to the land.

At the trial, the plaintiff gave evidence and also called five witnesses. It would appear that, after the plaintiff had closed his case and the 1st defendant had begun to give evidence, one Chief Onaturu Otuetue who was described as the present Odion of Emevor and the Head of the Urume or Emole Family of Emevor through whom the 2nd defendant claims his right to be on the land, intervened, claiming that his family is the owner or the land, and praying the court to join the family as defendant to the action.

Accordingly, by an order of court, the family was joined in a representative capacity as the 3rd defendant.

In the relevant portions of his defence the 3rd defendant averred as follows:-

“3. The plaintiff’s father asked for a piece of land from Eruvie the founder of Eruvie family of Emevor who allowed him a small portion of land situate in Eruvie family land where be built a hamlet and Eruvie family land is situate at Umude bush but it is not one and the same with Emole land.

4. The third defendant stoutly denies paragraphs 2, 3, 8 and 9 of the Statement of Claim filed by the plaintiff in this action and at the trial the third defendant will put the plaintiff to the strictest proof of the allegations therein contained. The third defendant further states that the survey plan filed by the plaintiff does not represent the true position, area and description of the land, but the plan filed by the 2nd defendant represents the true position, area and extent of the land, the property of Urume family of which the third defendant is its Head and Oldest Member.
5. The third defendant further avers that he is at present the Odion of Emevor and before him was Owhe Ekokota also a descendant of Urume family.
6. That many years ago Akpona of Urume family gave a portion of Emole land to the 2nd defendant’s father who married ORIVRI, a daughter of Emole and the 2nd defendant’s father built a hamlet there and it was here the 2nd defendant was born, lived and planted some rubber trees on a portion of the land since 1944 into which it has been alleged he trespassed. The 2nd defendant made periodical payment to the Urume family.
7. That the third defendant and their ancestors founded Emole land many, many years ago, when it was a virgin forest and it passed through many descendants of Emole and then to the present Urume family and that both the 2nd and the third defendants and with other members of the family have exercised maximum acts of possession and ownership over the said piece of land without let or hindrance.
8. The third defendant states that he and the members of his family have rubber trees, mango trees, cocoa trees, cassava farms, kola-nut trees in the land and oil bean trees, Iroko wood trees, “Obiara” trees, “Owaghan” trees marking the boundaries of the Emole family land.”

In a well-considered judgment, the learned trial judge entered judgment for the plaintiff against the 1st defendant who has not appealed against that decision, but dismissed the plaintiff’s claim against the 2nd and 3rd defendants.

In reaching his decision the learned trial Judge, Atake, J., said:-

“This case is one purely of trespass but it has been brought on the basis that the land put in issue is owned by one of the contesting parties….. The plaintiff has not satisfied me that he is in possession in any sense of the word of the area of land in Exhibit ‘5’ which is a smaller part of the area in his plan Exhibit 1A. I do not accept his evidence that he is in possession of or that he owns all the area he has shown in his plan Exhibit ‘A1′ and in particular I am satisfied he is definitely not in possession in any sense of the word of the area he shows in his plan as (b). I reject his evidence of possession and since his case is based on possession and ownership which he has not got it follows that his claims against the 2nd and 3rd defendants must be dismissed and are accordingly dismissed.”

It is from this decision dismissing the plaintiff’s claim against the 2nd and 3rd defendants that the plaintiff has appealed to this court. There are three main complaints and we propose to deal with them, one by one.

The first complaint is that the learned trial judge erred in joining the 3rd defendant, Onaturu Otuetue, after the plaintiff had closed his case and the 1st defendant had begun to give evidence. It was insinuated that, as a result of the belated joinder, the plaintiff was deprived of the opportunity to make out a case against the 3rd defendant. We were, therefore, called upon by learned counsel for the plaintiff to hold that the said joinder was prejudicial to the plaintiff’s case, and that it has therefore occasioned a mis-carriage of justice.

In our view, this attack on the judgment of the learned trial Judge is unjustified. If anything, the record of proceedings discloses that the learned trial Judge took every necessary precaution to ensure that the plaintiff was not embarrassed by the joinder. For the sake of clarity, we prefer to set out in chronological order, the sequence of events, which led to the making of the order by which the 3rd defendant became a party to this action.

By a motion paper dated the 30th day of July, 1968, the 3rd defendant applied to the court to be joined as a co-defendant. The application was supported by an affidavit.

When the application came up for hearing on the 14th day of August, 1968, the learned trial Judge, after granting the prayer contained in the motion paper, recorded inter alia as follows:-

“I grant the order as prayed. It is hereby ordered that the applicant Onaturu Otuetue be joined as a defendant in this action and pursuant to Order 7 Rule 12, I order that the plaintiff be released from the task of filing an amended writ and from service thereof on the new defendant.

“That hence-forth the writ and statement of claim shall be deemed to have borne the name of the intervener as defendant and that all court processes as from now shall bear the name of the intervener. The intervener is to file his statement of defence as agreed by counsel and serve same on the plaintiff and 1st defendant to make it possible for the further hearing of this case to proceed on Friday the 16th of August, 1968 with consent of all parties that this service shall be deemed good and effective service. If on the face of the defence to be filled by the intervener the plaintiff and or 1st defendant feel or feels called upon to amend their pleadings leave will be granted to them so to do. Leave will also be granted to them if they so desire to lead further evidence.” (The underlining is ours).

When on the 16th day of August, 1968, the case came up for further hearing the record of proceedings carries the following statements credited to Messrs. ESI and UZUAZEBE, counsel for the 3rd defendant and the plaintiff respectively:-

“Esi. I have failed the Defence of the 3rd defendant.”

“Uzuazebe. I wish to file a reply thereto.”

Thereupon the learned trial Judge made the following order:-

“Leave is hereby granted to the plaintiff and the 1st defendant to file any reply they so wish in consequence of the statement of defence filed by the 3rd defendant. Such reply to be filed “within 4 days and served on parties counsel and such service notwithstanding when it is affected shall be deemed to be good and effective service provided it is served before the next hearing.” (The underlining is ours).

Suffice it to say that no reply was filed as was indicated by learned counsel for the plaintiff, either before the next hearing or at any other time during the trial.

In the light of what happened at the trial of this case, we are satisfied that the plaintiff was not embarrassed by the joinder. We are also clearly of the view that the 3rd defendant was properly joined as a party to the action. After the 2nd defendant had filed his statement of defence, it became abundantly clear that the 3rd defendant through whom the 2nd defendant claims, was a necessary party to the action. And it was no surprise that he subsequently applied to be joined as a co-defendant.

The rule is that joinder of parties, if it is found to be necessary, may be made at any time during trial with a view to adjudicate upon and settle all questions involved in the cause. The interest of justice demands that, as far as possible, the issues between the parties should be determined once and for all, so as to avoid multiplicity of proceedings. The decision of this court in the case of Onyeama Ezenwa v. Samuel Ikegbunam Mazeli and Ors. (1955) 15 WACA Selected Judgments 67, throws a good deal of light on this aspect of the rule of practice. In that case, the facts were by far less favourable to the plaintiff than the facts in the present case. After the close of the plaintiffs’ and defendants’ cases and the addresses of counsel, the trial judge adjourned the case sine die, and, before he delivered judgment, he re-opened the hearing and ordered that the third, fourth and sixth respondents be added as plaintiffs.

Delivering the judgment of the court, de Commarmond Ag. CJ., as he then was, said at page 69:-

“I consider that a trial Judge may, where necessary, re-open the hearing before delivering his final decision. This is just what the learned trial Judge did in the present case. The order of joinder was made in the course of the re-opened hearing and I consider that it was properly made.”

In the case before us, joinder was made ever before the 2nd defendant opened his case. And it is on record that the learned trial Judge took every necessary step to ensure that the ends of justice were served. In our view, therefore, the complaint is without merit.

The next complaint is that the learned trial Judge should not have dismissed the plaintiff’s claim against the 2nd and 3rd defendants when there is evidence that the 3rd defendant’s brother and predecessor-in-office, (Owhe) as the Odion of Emevor, and head Emole or Urume family of Emevor had, in the past, testified before the Customary Court in favour of the plaintiff’s ownership of the land in dispute, in a case which did not directly involve his family.

We do not see any merit in this complaint. It is relevant to observe that the plaintiff did not plead estoppel. It was, therefore, not open to him to raise it, either in the court below or before us. Moreover, this point was never taken before the learned trial Judge. This court has said over and over again that, where the plaintiff did not set up estoppel in the court below as part of his case, it would, in our opinion, be wrong for this court to allow such an issue to be raised as one of the issues in the case for the first time in this court.

We think that a distinction should be drawn between the pleas of estoppel and res judicata. This point was clearly stated by Coussey, J.A., in the judgment of the court in the case of Bassil v. Honger 14 WACA 569 at page 576, as follows:-

“Estoppel prohibits a party from proving anything which contradicts his previous acts or declarations to the prejudice of a party, who, relying upon them, has altered his position. It shuts the mouth of a party. The plea of res judicata prohibits the court from enquiring into a matter already adjudicated upon. It ousts the jurisdiction of the court.”

The final complaint is that the learned trial Judge failed to appreciate the fact that the plaintiff’s claim against the 1st and 2nd defendants was for trespass, and not a claim for declaration of title by the plaintiff against the 3rd defendant.

This contention is, in our view, fallacious. Right from the beginning of this action, the plaintiff by paragraphs 2 and 3 of his Statement of Claim contends that the land in dispute forms part of a larger area belonging to his family (the Imowhe family) and that “his family (Imowhe) have exercised maximum acts of ownership and possession over the said land including the land in dispute.” In other words, the plaintiff by his own claim seems to have put his title in issue.

Furthermore, the issue of title is implicit in the defence set up by the 2nd defendant who claims that he was put on the land in dispute by the 3rd defendant, whom he described as his overlord. When subsequently, the 3rd defendant was joined, his defence seemed to have supplied the missing link. From that moment, it is our view, that the issue of title had to be determined, at least, as between the plaintiff and the 3rd defendant, before any reasonable decision could be reached as to whether or not any act of trespass was committed.

This court has held, that where there is dispute as to land, and the real issue is one of title, then title must be proved. See Nelson Ammah, 6 WACA 134.

The claim of the 2nd defendant in this case, normally stands or falls by the 3rd defendant’s claim.

In our view, this complaint is not tenable in the circumstances, the appeal fails and it is hereby dismissed.

The plaintiff shall pay the cost of this appeal assessed at N114 to each respondent.

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SC.336/69