Capacity to Sue and be Sued

Before Our Lordships

Olukayode Ariwoola - Justice of the Supreme Court of Nigeria

John Inyang Okoro - Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju - Justice of the Supreme Court of Nigeria

Abdu Aboki - Justice of the Supreme Court of Nigeria

Tijjani Abubakar - Justice of the Supreme Court of Nigeria

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Between

1. CHIEF (DR) SILAS ENEYO (JP)

2. CHIEF FRIDAY NTEIRIEN

3. CHIEF P.U.I. MBORH

4. CHIEF M.W. OMAYI -  APPELLANTS

(For Themselves And As Representing The Andoni Chiefs Council In Andoni LGA, Rivers State)

And

1. CHIEF UJILE DOGOOD NGERE

2. CHIEF K.U. ASUK

3. CHIEF (SIR) D.M. EDEH-OGWUILE

4. CHIEF I.U. OTUO

(For Themselves And On Behalf Of Andoni Traditional Rulers Council, Andoni LGA, Rivers State)

5. RIVERS STATE COUNCIL OF TRADITIONAL RULERS - RESPONDENTS

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ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal sitting in Port Harcourt, delivered on the 17th of November, 2014.

The Appellants, who were the Plaintiffs at the trial High Court of Rivers State, sitting at Port Harcourt, claimed several declaratory and injunctive reliefs, in their Amended Statement of Claim, led on the 7th of May 2010 against the 1st - 4th Respondents, the 5th Respondent, and Trade Bank PLC (whose name was later struck out of the matter), as follows:

1. A DECLARATION that by the Omagwa Peace Accord, as contained in a document titled COMMUNIQUE RELEASED DURING THE OBOLO NATIONAL RETREAT FOR ANDONI CHIEFS HELD ATTHE INTERNATIONALAIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH - 13TH NOVEMBER, 2004, and the subsequent Agreements reached at the meeting of the Andoni Chiefs' Council on the 18.11.2004 at the Delta Hotels Port Harcourt and the inaugural genera/ meeting of the Andoni Chiefs' Council at Ngo Town, Andoni LGA, on 30.12.2004, the apex ruling Chieftaincy body or Council in Andoni Local Government Area of Rivers State is the ANDONI CHIEFS' COUNCIL.

2. A DECLARATION that the so called Andoni Traditional Rulers Council is not only moribund but also extinct by virtue of the peace accord reached at the Omagwa retreat for Andoni Chiefs, held from the 10th - 13th November, 2004 at the International Airport Hotel, Omagwa, Port Harcourt and the subsequent Agreements reached at the Andoni Chiefs' Council meeting, held at Delta Hotels, Port Harcourt on 18.12.2004 and at the Ngo Town, Andoni LGA on 30.12.2004.

3. AN ORDER of this Honourable Court directing or compelling the 1st, 2nd, 3rd, and 4th Defendants to comply with the decisions of the Andoni Chiefs' Council contained in COMMUNIQUE RELEASED DURING THE OBOLO NATIONAL RETREAT FOR ANDONI CHIEFS HELD AT THE INTERNATIONAL AIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH - 13TH NOVEMBER, 2004, and the subsequent Agreements reached at the Andoni Chiefs' Council meeting, held at Delta Hotels, Port Harcourt on 18.122004 and at the Ngo Town, Andoni LGA on30.12.2004.

4. AN ORDER directing or compelling the 1st, 2nd, 3rd and 4th Defendants to account for and transfer all monies accruing to the Andoni Chiefs' Council vide the 5% Local Government Allocation from November 2004, till date which the 1st, 2nd, 3rd, and 4th Defendants have had and received through Account No. 11638000061132 still being kept, maintained and operated by the 1st, 2nd, 3rd and 4th Defendants in Trade Bank PLC situate at No. 14 Azikiwe Road, Port Harcourt in the name of Andoni Traditional Rulers Council, or any other name for management and disbursement to all Andoni Chiefs, in line with the formula agreed upon by consensus in the following manner:

(i) Rivers State Traditional Rulers Council (deducted at source) … 5%

(ii) President of Andoni Chiefs Council i.e. the 1st Defendant … 45%

(iii) Andoni Chiefs Council ... 50%

5. AN ORDER of this honourable Court compelling the 1st - 4th Defendants to comply with the decisions reached at the Omagwa Peace Retreat as contained in a COMMUNIQUE RELEASEDDURING THEOBOLONATIONALRETREAT FOR ANDONI CHIEFS HELD AT THE INTERNATIONAL AIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH - 13TH NOVEMBER, 2004 and the subsequent Agreements reached at the meeting of the Andoni Chiefs' Council meeting, on the 18.12.2004 at the Delta Hotels, Port Harcourt and the inaugural meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on 30.12.2004, by dissolving the former factional Council called Andoni Traditional Rulers' Council.

6. AN ORDER OF PERPETUAL INJUNCTION restraining the Rivers State Council of Traditional Rulers from transferring or remitting any money or cheque in respect of the 5% Local Government Allocation accruing to Andoni Chiefs to the 1st Defendant or any other Chiefs in Andoni LGA or the Andoni Traditional Rulers or any other Chieftaincy Council established by the 1st to 4th Defendants in Andoni Local Government Area.

7. AN ORDER directing or compelling the 5th Defendant to pay all monies accruing to Andoni Chiefs' Council from the 5% Local Government allocation to Andoni Council of Traditional Rulers or the 1st - 4th Defendants on record personally from the 5% Local Government allocation fund to Andoni Chiefs Council management and disbursement to all traditionally recognized Chiefs in Andoni LGA as contained in the Communique released at the Omagwa Peace Retreat held between 10th - 13th November, 2004 and the subsequent Agreements reached at the meeting of the Andoni Chiefs Council on the 18.11.2004 at Delta Hotels, Port Harcourt and the inaugural meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on 30.12.2004.

8. AN ORDER OF PERPETUAL INJUNCTION restraining the 6th Defendant, or its agents, privies or servants from paying any money arising from the 4% allocation from the Rivers State Government of the 5th Defendant to the 1st - 4th Defendant or any of their agents, privies or servants or proxies vide Account No. 1163800061132 or any other account opened by the 1st, 2nd, 3rd, and 4th Defendants in the 6th Defendant or any other Bank in Rivers State.

9. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st - 4th Defendants from circulating any information intended to call for any meeting of the so-called Andoni Traditional Rulers' Council or in the name of any other Chieftaincy Institution Ngo Town under the aegis of the Andoni Traditional Rulers' Council or any other Chieftaincy name.

(See Pages 1115 - 1117 of Volume 2 of the Record of Appeal).

On their part, the 1st - 4th Respondents, who were the 1st - 4th Defendants at the trial Court, denied liability to the Appellants' claims, and in their Amended Statement of Defence, counter claimed against them in the following terms:

1. A DECLARATION that the persistent manipulative interference by the Claimants under the umbrella of association called Andoni Council of Chiefs or Andoni Chiefs' Council in the management and all matters relating to the statutory allocation to the Defendants of the 5% of all revenues accruable to the Andoni Local Government Council is a violation of the fundamental rights of the Defendants' freedom of access to the fund.

2 AN ORDER of perpetual injunction restraining the Claimants whether by themselves, agents or privies and collaborators howsoever from further interfering in all matters relating to or affecting the management, sharing or application of the Defendants' statutory allocation of 5% of all revenues accruing to the Andoni Local Government Council.

3. AN ORDER directing the Plaintiffs jointly and severally to pay to the Defendants the sum of N200,000,000.00 (Two Hundred Million Naira) only as specific performance.

(See pages 1171 - 1190 of Vol.2 of the Record of Appeal)

In response to the amended statement of defence and counter claim, the Appellants led a Reply to the 1st - 4th Respondents' Statement of Defence and Amended Defence to Counter Claim.

(See pages 1119 - 1134 of Vol. 2 of the Record of Appeal.)

The 5th Respondent, who was the 5th Defendant at the trial Court did not file any pleadings in the matter.

At the end of trial, the trial Court on the 20th of June, 2011 granted all the Reliefs sought by the Appellants, and dismissed the Counter Claim of the 1st - 4th Respondents.

Dissatisfied with the judgment of the trial Court, the 1st - 4th Respondents lodged an appeal at the Court below vide a Notice of Appeal dated 20.6.2011 and led on the

21.6.2011, by one F.U. Okoro Esq., of Counsel for the 1st - 4th Respondents. However, on the 15/07/2011, the said Notice of Appeal was withdrawn by the Counsel.

(See Pages 1710 - 1711 of Vol. 3 of the Record of Appeal).

On the same date of the withdrawal of the Notice of Appeal led i.e. 15th July 2011, the 1st - 4th Respondents led another Notice of Appeal, this time by the Law Firm of

Okocha & Okocha & Co., signed by O.C.J. Okocha, SAN. The Notice of Appeal (found at pages 1699 - 1704 of Vol. 3 of the Record of Appeal) , was the basis upon which the appeal was heard at the Court below.

After the hearing of the appeal and the Preliminary Objection raised by the Appellants herein against the competence of Ground 1 of the 1st - 4th Respondents' Notice of Appeal, the Court below, in its judgment unanimously allowed the appeal of the 1st-4th Respondents, and held that the Appellants' suit before the trial Court was not properly constituted as to parties, and accordingly struck out the suit as incompetent.

(See pages 1910 - 1956 of Vol. 3 of the Record of Appeal) .

It is against this decision of the Court below that the Appellants appealed to this Court via an Amended Notice of Appeal, led on the 25th of February, 2015 upon seven grounds.

In line with the Rules of this Court, briefs of argument were led and exchanged, by Counsel on both sides.

In the Appellants' brief of Argument settled by Sebastian T. Hon, SAN, FCIArb, five issues were formulated on behalf of the Appellants. They are:

1. Whether the Court of Appeal had jurisdiction to entertain the 1st - 4th Respondents' appeal when same had been withdrawn and deemed by operation of law, to have been dismissed.

2. Whether the Appellants' Notice of Preliminary Objection at the Court of Appeal against Ground 1 of the 1st - 4th Respondents' Grounds of Appeal was competent in law, and if so, whether the Court of Appeal was right in law to have suo motu struck it out, without asking the parties to address it on the competence thereof.

3. Whether Ground 1 of the Grounds of Appeal led at the Court below by the 1st - 4th Respondents herein was competent in law.

4. Whether the Appellants' Suit as constituted at the trial Court was competent, and if so, whether the lower Court was right in law to have held that it was incompetent and consequently proceeded to strike it out?

5. Whether the Court of Appeal was right in refusing to grant the Appellants' Reliefs as claimed in the trial Court?

For the 1st - 4th Respondents, the following three issues were donated to this Court for determination, in their brief of argument settled by O.C.J. Okocha, SAN, namely:

1. Whether the Court of Appeal had jurisdiction to entertain the 1st - 4th Respondents' appeal brought by Notice of Appeal dated and led on 15th July, 2011?

2. Whether the Court of Appeal committed any error in law when it struck out the Preliminary Objection led by the Appellants against Ground 1 of the 1st - 4th Respondents' Notice of Appeal dated and led on 15th July, 2011?

3. Whether the Court of Appeal committed any error in law when it held that the Appellants' suit before the High Court was incompetent, and thereupon proceeded to strike out the suit?

The 5th Respondent's brief of argument, settled by Lawrence S. Oko-Jaja, Esq., contains a sole issue for determination, to wit.

"Whether the Court of Appeal was right when it held that the Appellants' Suit No: PHC/2060/2005 at the High Court was incompetent and consequently struck out the said suit, for the Appellants' lack of juristic personality?"

My Lords, the substance of the issues formulated by Counsel on both sides is the same. I therefore adopt the issues distilled by the 1st - 4th Respondents in the determination of this appeal.

ISSUE ONE

Whether the Court of Appeal had jurisdiction to entertain the 1st - 4th Respondents' appeal brought by Notice of Appeal dated and led on 15th July, 2011?

It is submitted for the Appellants that by virtue of the Notice of Withdrawal of Appeal, led by F.U. Okoro Esq., the erstwhile Counsel for the 1st - 4th Respondents, on the 15th of July 2011, the withdrawn appeal stood dismissed by virtue of Order 11 Rule 5 of the Rules of the Court below, 2011, and the Notice of Appeal, subsequently led by the Law Firm of O.C.J Okocha SAN, on the same date, was a nullity and incapable of invoking the jurisdiction of the Court below, as that Court had become functus officio.

The argument of learned senior counsel for the Appellants is that having withdrawn the initial Notice of Appeal led on the 21.6.2011, the appeal was by law dismissed and the Court of Appeal lacked the jurisdiction to hear and determine the appeal. Reliance was placed on the case of Savannah Bank Ltd v. A jilo (1989) 1 NWLR (Pt. 97) 305 325.

Learned senior Counsel for the Appellants posited that once a Court becomes functus officio, it lacks the power to further adjudicate on the matter, vide: Ni gerian Army v. Iyela (2009) FWLR (Pts 452) 1012 @ 1030 SC; Amah v. Nwankwo (2008) FWLR (pt. 411) 879 @ 895.

He urged this Court to resolve this issue in the Appellants' favour and hold that the Court below lacked the requisite jurisdiction to entertain the appeal of the 1st - 4th Respondents.

Arguing contrariwise, it is submitted for the 1st - 4th Respondents that a party who is dissatisfied with any decision, ruling, judgment or order of any Court, is entitled to file as many Notices of Appeal or as many Grounds of Appeal as he deems right. The following authorities were relied on:

Section 24(2) (a) Court of Appeal Act, LFN 2004; Tukur v. Government of Gon gola State (1988) 1 NWLR (Pt. 68) 39 @ 48.

Learned Senior Counsel for the 1st - 4th Respondents maintained that the two Notices of Appeal, having been led within the time stipulated by the Court of Appeal Act, was properly and validly led and this Court is urged to so hold.

In reply, it is submitted for the Appellants that having conceded in Paragraph 4.6 of their Brief of Argument that the first notice of appeal led on the 21st of June 2011 was withdrawn, their appeal was deemed withdrawn as provided for in Order 11 of the Court of Appeal Rules, 2011. Learned Silk distinguished the cases of Tukur v. Government of Gongola State, supra, and Re gistered Trustees of the Rosicrucian Order (AMORC) v. Awoniyi, supra , from the instant appeal. According to him, in the two cases mentioned above, the notices of appeal were withdrawn at the hearing of the appeal and were subsequently struck out. However, where as in the instant appeal, the Appellant follows the procedure stipulated in Order 11 of the Court of Appeal Rules, 2011, the appeal is deemed dismissed. He placed reliance on the case of Setraco (Nig) Ltd v. Kpaji (2017) 5 NWLR (Pt. 1558) 280 , and urged this Court to resolve this issue in the Appellant's favour.

Now it is not in dispute that at page 1710 of Vol. 3 of the Record of Appeal, a Notice of Withdrawal of Appeal was led by F.U. Okoro, Esq., on the 15th of July 2011, to wit:

"TAKE NOTICE that the 1st to 4th Defendants/Appellants do hereby withdraw the appeal which they led vide the Notice of Appeal dated 20th June 2011 and led on 21st June 2011."

The rigorous contention of learned senior counsel for the Appellants is that once an Appellant decides not to prosecute the appeal any further and pursuant thereto les a Notice of Intention to withdraw, the Court is bound to terminate the appeal either by striking it out or dismissing it. In other words, the Notice of Withdrawal of Appeal led by the 1st - 4th Respondents operates as a dismissal of the appeal under ORDER 11 of the Court of Appeal Rules, 2011 and the Court below lacked the requisite jurisdiction to hear and entertain the appeal.

I do not think that this submission is supported by the provisions of ORDER 11 of the Court of Appeal Rules, 2011 on which the Appellants relied. It is pertinent to examine the said provision which says:-

1. An appellant may at any time before the appeal is called on for hearing, serve on the parties to the appeal and file with the Registrar, a notice to the effect that he does not intend to prosecute the appeal any further.

2. If all parties to the appeal consent to the withdrawal of the appeal without an order of the Court, the Appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their Legal Representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar and in such event any sum deposited against costs shall be paid out to the Appellant.

3. The withdrawal of an appeal with the consent of the parties under Rule 2 of this Order shall be a bar to further proceedings on application made by the respondent under Order 9.

4. If all the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the Respondent under Order 9, and for the making of an order as to the disposal of any sum deposited against cost.

5. An appeal which has been withdrawn under this Order, whether with or without an order of the Court, shall be deemed to have been dismissed.

6. Where an appeal is withdrawn under this Order, any Respondent who has not given a notice under Order 9, may give Notice of Appeal and proceed therewith in the manner prescribed by the foregoing Rules, and in such case the time limited for giving notice of appeal, for depositing the sum estimated to cover the cost of the record and for making deposit against costs may, on application to the Court, be extended so far as is reasonably necessary in all the circumstances of the case.

Firstly, there was nothing on record to show that all the parties to the appeal consented to its withdrawal as stipulated in Order 11 Rule 2. No document or documents signifying such consent and signed by the parties or their legal representatives was led in the Registry of Court below. Secondly, by virtue of the provisions of Order 11 Rule 4 where all the parties do not consent to the withdrawal of the appeal, then the appeal ought to and should remain on the list for the hearing and determination of any issue as to costs or otherwise remaining outstanding between the parties.

Thus under the provisions of Order 11 of the Court of Appeal Rules 2011, the mere ling of a Notice of Withdrawal of an appeal without more, does not ipso facto automatically entitle the Court to terminate the appeal. See: Din gyadi v. INEC & Ors (2011) LPELR 950 SC.

It follows therefore that the said notice of withdrawal of the appeal led by 1st - 4th Respondents, cannot be said to have met the requirements of Order 11 of the Court of Appeal Rues 2011 to warrant the termination of the appeal.

What is more, the 1st - 4th Respondents' counsel on the same date of the ling of the Notice of Withdrawal of Appeal, led another Notice of Appeal, still within the stipulated time for appealing.

In Socio-Political Research Development v. Ministry of FCT & 2 Ors (2018) LPELR 45708 SC , this Court held that ling of more than one notice of appeal does not affect the validity of an appeal if all the notices are led within the statutory period for appealing.

In the instant case the two notices of appeal were led within the statutory time of appealing. They are both valid, and the withdrawal of one of the Notices of Appeal, does not affect the competence of this appeal provided there is a valid Notice of Appeal. The Court below therefore had the jurisdiction to entertain the appeal. In consequence therefore, I resolve this issue against the Appellants.

ISSUE TWO

Whether the Court of Appeal committed any error in law when it struck out the Preliminary Objection led by the Appellants against Ground 1 of the 1st - 4^th Respondents' Notice of Appeal dated and led on 15th July, 2011?

The pith of the arguments of learned senior counsel for the Appellants on this issue was that the Notice of Preliminary Objection led against Ground 1 of the Notice of Appeal led at the Court below by the 1st - 4th Respondents herein, was competent and the Court below was unduly technical in discountenancing it.

Learned senior counsel for the Appellants drew the attention of this to the said Notice of Preliminary Objection, at pages 1870 - 1871 of Vol. 3 of the Record of Appeal, and argued that even though the Appellants headed their application "Notice of Preliminary Objection to the hearing of this appeal" , the entire body of the application shows that it was directed against only Ground 1 of the Grounds of Appeal, and the content, rather than the heading ought to have influenced the mind of the Court below.

He posited that strict adherence to forms rather than insistence on substantial compliance with stipulated forms, results in miscarriage of justice, citing in support, these cases:

Okpetu v. COP, Delta State (2001) FWLR (Pt. 69) 1317 at 1333; Ikechukwu v. Nwoye (2014) FWLR (Pt. 724) 101 at 110.

He urged this Court to hold that the Appellants' Objection against Ground 1 of the 1st - 4th Respondents' Grounds of Appeal, was competent in law.

It is the further contention of learned SAN that the Court below was in grave error, leading to a breach of the Appellants' right to fair hearing and grave miscarriage of justice, when without giving the Appellants any opportunity to make submissions on the competence, if any, on their application, it proceeded to strike out same. He argued that the settled position of law is that any point raised and resolved suo motu by a Court of law without affording the parties the opportunity of being heard on the said point, amounts to a miscarriage of justices He called in aid these cases:

Jev v. Iyort yom (2014) All FWLR (Pt. 747) 749; Unit y Bank Plc v. Denclag Ltd (2013) All FWLR (pt. 675) 206; Ukon g v. Commissioner of Finance & Dev. , Akwa Ibom State (2007) All FWLR (Pt. 350) 1246.

On the competence of Ground 1 of the Grounds of Appeal led at the Court below, by the 1st - 4th Respondents, it is the view of learned senior counsel for the Appellants that the said Ground 1 raised the issue of the procedural jurisdiction of the trial Court, namely, the capacity of the "Andoni Chiefs Council in Andoni LGA, Rivers State", to sue.

Learned senior counsel pointed out that the issues raised in that ground (Ground 1) were neither raised in the 1st - 4th Respondents' pleadings nor any of the other parties' pleadings at the trial Court, and none of the raised them by way of evidence or counsel's address at the trial Court. He posited that in the absence of any leave granted by the Court below to raise the ground of appeal, that ground of appeal is incompetent. The following cases were relied upon: Akeredolu v. Mimiko (2014) All FWLR (Pt. 728) 829; Garuba v. Omokhodion (2011) FWLR (Pt. 596) 404; C.I.I. Ltd v. A jaokuta Steel Co. Ltd (2014) All FWLR (Pt. 731) 1441; Nidocco Ltd v. Gba jabiamala (2014) All FWLR (Pt. 724) 1.

He concluded by submitting that Ground 1 of the 1st - 4th Respondents' Grounds of Appeal at the Court below, having not arisen from the judgment of the trial Court, was incompetent and ought to be struck out.

He urged this Court to resolve this issue in favour of the Appellants. For the 1st - 4th Respondents, it is submitted that the Court below did not commit any error when it struck out the Preliminary Objection led by the Appellants. According to the learned SAN, the Court below duly considered the issue that arose in that regard in the light of Order 10, Rule 1 of the Court of Appeal Rules, 2011 and found that the Preliminary Objection was incompetent and not worthy of consideration, and same was accordingly struck out. He placed reliance on the following cases:

Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 @ 154; NNPC V. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148; Okereke v. James (2012) 16 NWLR (Pt. 1326) 339.

On the issue of fair hearing, it is the argument of learned senior counsel that the Appellants were not denied their right to fair hearing, as the Court below duly considered the Appellants' Preliminary Objection, before coming to the conclusion that same was incompetent He drew the attention of this Court to Pages 1870 - 1871 of Vol. 3 of the Record.

This Court is urged to resolve this issue against the Appellants.

The Appellants in reply, submitted that having not responded to the weighty arguments canvassed by the Appellants under this issue, the 1st - 4th Respondents are deemed to have conceded to them. The case of Sakati v. Bako (2015) ALL FWLR (Pt. 800) 1182, was relied on.

The Appellants herein (as Respondents) had, at the Court below, led a Notice of Preliminary Objection to wit:

NOTICE OF PRELIMINARY OBJECTION TO THE HEARING OF THIS APPEAL

ORDER 10, RULE 1, RULES OF THE COURT OF APPEAL 2011 AND SECTION 241(1)(A) OF THE 1999 CONSTITUTION OF THE FEDEARL REPUBLIC OF NGERIA, AS AMENDED TAKE NOTICE that at the hearing of this Appeal, the Respondents shall rely on a Preliminary Objection to the hearing of the Appeal, particularly in so far as Ground 1 and the Particulars contained in the Notice of Appeal led on the 15th day of July, 2011 are concerned, and same be struck out for incompetence…" The grounds of the objection were also set out at pages 1870 - 1871 of Vol. 3 of the Record of Appeal.

As rightly submitted by learned senior counsel on behalf of the Appellants, at page 7 of the Appellants' brief of argument, a critical examination of the said Notice of Preliminary Objection shows that it was strictly directed at Ground 1 of the Grounds of Appeal led by the 1st - 4th Respondents herein and not the entire appeal before the Court below. This Court has countlessly stated that a preliminary objection is led only when the Respondent is satisfied that there is some fundamental defect in the Appellant's process. The sole purpose being to terminate the appeal in limine usually on grounds of incompetence. See:

Odunukwe v. Ofomata (2010) LPELR 2250 SC Ndi g we v. Nwude (1999) 11 NWLR pt.626 p.314, NEPA v. Ango (2001) 15 NWLR pt.737 p.627.

Nowadays, preliminary objections are led once a Respondent notices any error in the Appellant's processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See:

Muhammed v. Militar y Administrator Plateau State (2001) 16 NWLR pt.740 p.524; NDIC v. Oranu (2001) 18 NWLR pt.744 p.183. Okereke V. James (2012) 16 NWLR (Pt. 1326) 339 at 348- 349.

In the appeal under consideration, the Court below had held thus, at pages 1919 - 1921 of Vol. 3 of the Record of Appeal:

"Recently, the apex Court re-iterated the above position in the case of N.N.P.C Famfa Oil Ltd (2012) 5-7 SC (Pt. 1) 1 at 29 , when Rhodes Vivour, JSC said:

"If I may add to the above, where, as in this appeal the Preliminary objection was led against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have led a Motion of Notice since the Preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal."

Put simply, the principle enunciated by the apex Court in the above authorities is that a preliminary objection challenging the competence of only one or some grounds of an appeal is incompetent if not brought by was of a motion on notice. This position of the Supreme Court reflects the purport of the provisions of Order 10, Rule 1 of the Court of Appeal Rules, 2011 under which the Respondents' preliminary objection was brought. The provisions are:

1. Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.

These provisions, which are in plain and unambiguous language, talk of and provide for a preliminary objection to the hearing of the appeal, that is, an objection which challenges the competence of an appeal. They do not envisage an objection which does not challenge the competence and therefore hearing of the appeal by the Court, but only one or more grounds of the appeal and leaving other grounds which hearing of the can be sustained on or proceeded with, by the Court. By the position of the apex Court and the provisions of Order 10, Rule 1 of the Court of Appeal Rules, 2011 pursuant to which it was brought, the Respondents preliminary objection which challenges the competence of only one (1) out of ve (5) grounds of the appeal, is not one which questions the hearing of the appeal, and so incompetent on the grounds that it was not brought by way of a motion on notice."

The above stance of the Court below, indeed represents the position of this Court and is therefore unassailable, the effect of which is that the Court below was right to hold that the Appellants' preliminary objection against ground 1 of the 1st - 4th Respondents' Notice of Appeal, was incompetent, and same was rightly struck out.

The second limb of this issue is: "whether the Court of Appeal was right in law to have suo motu struck it out, without asking the parties to address it on the competence thereof."

I must straightway state that there is nothing irregular in the procedure adopted by the Court below, I say so because a Court is entitled to raise an issue suo motu and take a decision on it, without asking parties to address it, where they fail to take into consideration, a statute or when it relates to the Court's own jurisdiction. In Ang adi & P.D.P. & ORS , (2018) LPELR-44375 (SC) this Court held that:-

"When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue... but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue suo motu by the Judge:- 1. When the issue relates to the Court's own jurisdiction; 2. where both parties are not aware or quoted a statute which may have bearing on the case; or 3. When on the face of the record serious questions of the fairness of the proceedings is evident."

It follows therefore that the Court below in deciding whether the Preliminary Objection of the Appellants was competent, being an issue of the Court's jurisdiction, needed not call any of the parties for further address in arriving at a decision. Where a preliminary objection is incompetent, an appellate Court will have no jurisdiction to entertain such incompetent preliminary objection, and there is no need for any address by the parties.

See also: Ominiyi V. Alabi (2015) LPELR 24399 (SC)

The consequence of the foregoing is that the Court below was on terra firma, when it suo motu struck out the preliminary objection, without asking the parties to address it on the competence thereof. There was therefore no breach of the Appellants' right to fair hearing.

This issue is resolved against the Appellants.

ISSUE THREE

Whether the Court of Appeal committed any error in law when it held that the Appellants' suit before the High Court was incompetent, and thereupon proceeded to strike out the suit?

It is submitted for the Appellants that the Appellants' suit as constituted at the trial Court was competent in law, and the Court below was wrong to have struck it out for want of competence.

Learned senior counsel for the Appellants invited this Court's attention to an excerpt of the judgment of the Court below, at pages 1930 and 1993 of Vol. 3 of the Record of Appeal, and argued that the decision of the Court below that the Suit was incompetent, clearly and directly stands in the way of the decision of this Court in Fawehinmi v. N.B.A. (No.2) (1989) All NLR 274 . He added that had the Court below read the decision in Fawehinmi's case supra, dispassionately, it would have inevitably found for the Appellants herein. He maintained that in the present case, the "Andoni Chiefs' Council, Andoni LGA, Rivers State", though admittedly unincorporated, it can sue or be sued in a representative action. He relied on these cases: U.B.N. Plc v. Ntuk (2004) FWLR (Pt. 234) 1985 @ 1999; Nkpornwi v. E jire (2009) 9 NWLR (Pt. 1145) 131; Jinadu v. Esurombi -Aro (2005) All FWLR (Pt 251) 349 @ 392.

Relying on a plethora of authorities, including Okon ji v. Njokanma (1989) 4 NWLR (Pt. 114) 161 @ 169 , and Mbanefo v. Molokwu (2014) All FWLR (Pt. 742) 1665 @ 1698 ; learned Silk posited that it is settled law that in a representative suit like this one, both the named and the unnamed parties, are parties to the suits, even though the named parties are the dominis litis in the said suit.

He postulated that the Court below committed a grave error to have struck out the Appellants' suit, when the suit was instituted in their names, and on behalf of the group they were/are representing.

This Court is urged to hold that the Court below was wrong in law, to have struck out the Appellants' Suit at the trial Court. In response to the above, it is submitted for the 1st - 4th Respondents that the Court below did not commit any error in law when it found that the Appellants' suit was improperly constituted, because the Appellants purported to sue in a representative capacity for themselves and on behalf on "Andoni Chiefs' Council" which was not and is not a legal entity, registered or unregistered, and was not a legal, juristic or judicial person, and could not appoint any other person to sue on its behalf.

Learned senior counsel for the 1st - 4th Respondents, while relying on the case of Iyke Medical Merchandise v. Pzer Inc. (2001) 10 NWLR (Pt. 722) 540, 555 , listed the juristic persons which may sue or be sued in law, and contended that the "Andoni Chiefs' Council" does not fall into any of the categories.

He argued that having sued as they did, for themselves, and as representing the Andoni Chiefs' Council, their suit was incompetent, as the very foundation upon which the suit was instituted, was defective, and the Court below was right to have struck it out. He cited and relied on these cases:

Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348; Madukolu v. Nkemdilim (1962) All NLR REPRINT (PT 2) 581; The Administrators/ Executors of the Estate of Sani Abacha v. Eke-Spiff (2009) NWLR (Pt. 1139) 97.

This Court is urged to so hold and resolve this issue against the Appellant.

In reply, it is submitted for the Appellants that the 1st - 4th Respondents, have not sufficiently countered the weighty submissions of the Appellants and they therefore deemed conceded. This Court is urged to so hold.

For the 5th Respondent, it is submitted that the Court below was right when it held that the Appellants' suit at the trial Court was incompetent, as the Appellants were not vested with juristic personality to bring the said action.

Learned Counsel for the 5th Respondent, adopted the arguments postulated on behalf of the 1st - 4th Respondents and argued that "Andoni Chiefs' Council in Andoni L.G.A., Rivers State" not having been established in accordance with the provisions of Section 11(1) of Cap 25, Laws of Rivers State, is bereft of legal personality. He placed reliance on the case of Ti jjani Bambe & Ors v. Alhaji Yusuf Adetunj i Aderinole & Ors (1977) All NLR (Reprint) 5 and urged this Court to resolve this issue against the Appellants, and dismiss the appeal.

In reply, it is the submission of learned senior Counsel for the Appellants that the case of Ti jjani Bambe & Ors v. Alhaji Yusuf Adetunj i Aderinole & Ors (1977) All NLR (Reprint) 5 is not on all fours with the instant and cannot be good authority for the issue in contention.

In conclusion, this Court is urged to allow the appeal, and set aside the judgment of the Court below, and affirm the decision of the trial Court.

There is no doubt that as a general rule, for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. This presupposes that only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus, it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law, either: (a) A legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and "quasi-corporations" constituted by Act of Parliament; or (b) A right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See:

Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt. 105) 558; Carlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (Pt.323) 631; Iyke Medical Merchandise v. P zer Inc. & Anor (2001) LPELR 1579 SC

The rationale behind this is that law suits are in essence the determination of legal rights and obligations in any given situation. Therefore, only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law.

The consequence of the above is that in the instant appeal, for the Appellants' suit to be properly constituted, so as to vest jurisdiction on the trial Court, the Appellants, as Plaintiffs, must have the capacity and legal competence to initiate it.

There is no modicum of doubt that the contention of the Appellants herein, is that its action at the trial Court is competent in law, as Andoni Chiefs' Council is a juristic person, which can sue or be sued eo nomine. To determine this issue, let me start by looking at the provisions of Cap 25, Laws of Rivers State 1978, which I will hereafter refer to as "Cap 25".

Section 11 of Cap 25 provides as follows:

1. There shall be established for each local Government Area of the State, a Council of Chiefs whose membership shall consist of all recognized Chiefs of the area.

2. Where the number of recognized Chiefs in the Local Government Area is less than nine, the Council of Chiefs shall by resolution, co-opt such other indigenous Chiefs as are representative of the entire area to the said Council of Chiefs, bringing the total membership of such Council to nine.

Provided that the co-opted members are approved by the Commissioner.

3. Nothing in Subsection (2) of this Section shall be construed to confer on any co-opted member of such council, the status of official recognition by the Governor, pursuant to the provisions of Section 2 of this Law.

Under Section 2 Cap 25, a Chief is recognized by the Governor, by instrument under his hand, recognizing the Chief as occupying the Chieftaincy stool of the town or community concerned. Section 12 of Cap 25 sets out the functions of the Council of Chiefs established by Section 11(1). It follows therefore that the Council of Chiefs established bySection 11(1) and whose functions were set out in Section 12, is the Council of Chiefs in a Local Government Area, which is composed of Chiefs who the Governor of the State, by instrument or certificate under his hand, recognized as occupying the Chieftaincy stool of the community or town concerned. Thus, a legally cognizable Council of Chiefs, for a Local Government Area in Rivers State, is the Council of Chiefs whose composition complies with, or is in accordance with the clear provisions of Section 11(1) and (2) of Cap 25. That is the Council of Chiefs statutorily established, created and provided for, in the Law. In the appeal under consideration, the Appellants had initiated the suit before the trial Court in their names, for themselves and as representing the Andoni Chiefs' Council in Andoni Local Government Area of Rivers State. There is no dispute as to the juristic personality of the Appellants to sue or be sued in their individual names. The point of disagreement is whether the Andoni Chiefs' Council in Andoni Local Government Area, on whose behalf the suit was initiated, had the juristic capacity to sue or be sued under the provisions of CAP 25 of the Laws of Rivers State.

The Court below, had at pages 1931 -1933 of Vol. 3 of the Record, observed as follows:

"Though the learned counsel for the 1st - 4th Respondents (now Appellants) has argued, strenuously that the Andoni Chiefs' Council in Andoni Local Government Area is a creation of CAP 25, he did not state categorically that it was established in compliance or accordance with the specific provisions of Section 11(1) and (2) which deal with the establishment or creation of a Council of Chiefs for a Local Government Area. He did not even argue that the said Chiefs' Council is the Council of Chiefs for the Andoni Local Government Area as provided for in CAP 25, but merely relied on the Omagwa Retreat and Communique to say that it was agreed by all Andoni Chiefs… CAP 25 did not leave or provide that a Council of Chiefs for a Local Government Area is to be established and/or constituted by agreement or communique of all the Chiefs in a Local Government Area. It is not for all the chiefs in a Local Government to sit down, meet or hold a retreat and then agree to establish and constitute a Council of Chiefs for the Local Government Area under CAP 25. The Chiefs and indeed all the people of a Local Government Area do not have the power and authority under CAP 25 to purport to do so by whatever means, howsoever. By their own case, in both pleadings and evidence, the 1st - 4th Respondents have demonstrated that the Andoni Chiefs' Council who they claimed to have represented in the suit, is/was not established and constituted pursuant to, and in accordance with the provisions of Section 11 (1) and (2) of CAP 25. The Andoni Chiefs Council is not envisaged or within the purview of CAP 25 for it to be a statutory creation under that Law. It is not even the 1st - 4th Respondents' case that the 1st 37 Appellant, as the only recognised Chief in Andoni Local Government Area, had incompliance/accordance with Subsection (2) of Section 11, agreed by a resolution, to co-opt other indigenous Chiefs as representatives of the entire area and that such indigenous Chiefs were approved by the Commissioner for Chieftaincy Affairs, for them to become members of the Andoni Local Government Area Council of Chiefs. I should point that the composition of a Council of Chiefs for a Local Government Area, under Subsection (2) of Section 11, is limited in its minimum and maximum number to nine (9) members. Such a Council is to compose of, or be constituted by a minimum and maximum number of nine members comprising of the recognized Chief(s) and the co-opted indigenous Chiefs approved by the Commissioner for Chieftaincy Affairs as expressly provided in that subsection. Under the provisions of the subsection, the number of members of the Council of Chiefs cannot be more than nine (9). This is unlike the provisions of Subsection (1) under which the number of the recognized chiefs in the Local Government Area, which may be more than nine (9), determines the maximum number of its membership at any particular time. The Andoni Chiefs Council, which admittedly is made up of all the Chiefs in Andoni (One Hundred and Twenty (120) of them, cannot seriously be said to be a creation or creature of, or established by or in compliance or accordance with the provisions of CAP 25. Since it is a contraption not within the purview of that Law, the Andoni Chiefs' Council cannot claim to perform the functions of a Council of Chiefs established for a Local Government Area in order to acquire the right to sue eo nomine and thereby lacks the juristic capacity to sue or be sued in a Court of law on the grounds of performance of the functions. Because it is strange to the Law, the Andoni Chiefs Council cannot claim to have been vested with juristic personae, either as a quasi or near corporation, expressly or impliedly for the principle of law in the cases of Ata guba & Co. v. Gura Nig. Ltd; Thomas v. L.B.Bd ; and Carlen v. Univ. of Jos(all supra) to apply to it. In this regard, I am in agreement with the learned Silk for the Appellants, when he said that the Andoni Chiefs' Council is not a legal entity, registered or unregistered, and neither is it a legal juristic or judicial person to be clothed with the right to sue or be sued in a Court of law. In the circumstance, it cannot appoint any other person to sue on its behalf."

I am in total agreement with the above quoted decision of the Court below. I only add to support that Cap 25 made no provisions whatsoever as to the name by which each Local Government Area Council of Chiefs is to be called, provided that such a Council of Chiefs by whatsoever name so called, must conform in its composition and membership, within the succinct and clear provisions of Section 11 of Cap 25 of the Laws of Rivers State 1978.

It is manifest from the contents of Exhibits A and B, that the only Government recognized Chief in Andoni Local Government Area is the 1st Respondent. What this implies is that the 1st Respondent, vide Section 11(2) of Cap 25, is statutorily empowered to co-opt such other indigenous Chiefs as are representative of entire area to the said Council of Chiefs, bringing the total membership of such Council to nine (9). As rightly held by the Court below, this appeal falls within Subsection 2 of Section 11 of Cap 25, the import of which is that the membership of the Council must have a maximum number of nine (9).

It has not been shown in this appeal that the 1st Respondent co-opted other indigenous chiefs, neither was it borne out of the Records before this Court that the coopted chiefs were approved by the Commissioner. What is more, the Andoni Chiefs' Council, which is made up of all the Chiefs in Andoni (One Hundred and Twenty (120) of them, is in contravention of Section 11(2) of the Law and is therefore not a legal juristic or judicial person to be clothed with the right to sue or be sued in a Court of law. In the circumstance, it cannot appoint any other person to sue on its behalf.

Consequently, I answer the question "whether the Court of Appeal committed any error in law when it held that the Appellants' suit before the High Court was incompetent", in the negative and resolve this issue against the Appellants.

The Appellants have contended in their reply brief of argument that Ground one of the 1st - 4th Respondents notice and grounds of appeal at the Court below, having not arisen from the pleadings and having not been raised either in evidence or at the addresses of the parties, was a fresh issue for which the leave of the Court below ought to have been sought for and obtained and in the absence of such leave, is incompetent. The said ground one attacked the legal or juristic capacity of the Appellants to maintain and sustain an action or appeal.

In Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR 45708 (SC) , this Court, per Aka'ahs JSC, opined thus:

"The juristic personality of a plaintiff is sine qua non to the plaintiff's capacity to institute and maintain a legal action in Court. Where the legal capacity of the plaintiff is being questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the plaintiff has the capacity to sue before it can proceed to hear the matter. The issue can be raised for the first time in the appellate Court"

See also: Abubakar & Ors v. Yar'Adua & Ors (2008) LPELR 51 (SC)

There is no doubt that this issue of juristic personality of the Appellants touches and affects the jurisdiction and competence of the Court to entertain the matter, hence it can be raised at any time and level of the Courts, with or without leave.

In the final analysis, and for the reasons set out above, I adjudge this appeal to be devoid of merit and it is accordingly dismissed by me. The judgment of the Court below, delivered on the 17th of November, 2014 is hereby affirmed.

I make no order as to costs.

Appeal Dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead JUDGMENT of my learned brother, Abdu Aboki, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and deserves to be dismissed. Accordingly, it is dismissed by me.

Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: I had the privilege of reading before now a draft copy of the judgment just delivered by my learned brother, Abdu Aboki, JSC and I am in full agreement with the reasons and conclusion adumbrated therein.

The position of the law is trite that it is only a legal person that can sue and be sued. Where a suit is commenced be a person whose legal personality has not been established, the effect is that there is no plaintiff and the action is not instituted by a person known to law. Indeed, in the case of Atag uba & Co. v. Gura (Nig) Ltd (2005) 8 NWLR (pt. 927) 429 page 445 , this Court per Edozie, JSC succinctly stated the position of the law as follows:-

"As a general principle, only persons, that is human beings and juristic or artificial persons such as body corporate are competent to sue or be sued.

Consequently, where either of the parties is not a legal person the action is liable to be struck out as being incompetent…

The law, however recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus, it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law, either … (a) A legal persona under the name by which it sues or is sued e.g. corporate sole and aggregate, bodies incorporated by foreign law and "quasi-corporation" constituted by Act of Parliament; or (b) A right to sue or be sued by that name e.g. partnership, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See Fawehinmi v N.B.A. (No2) (1989) 2 NWLR (pt.105) 558."

It follows therefore that a plaintiff whose legal personality is challenged has the onus to establish the status of the name by which it sues.

In the instant case, there is no doubt that the Appellants are natural persons and as such have the capacity to sue and be sued. However, the name "Andoni Chiefs' council" is not a juristic person. It has no legal capacity to sue and by virtue of Section 11 Cap 25, Laws of Rivers State 1978, extensively reproduced in the leading judgment, Andoni Chiefs' Council cannot co-opt or appoint other persons to sue on its behalf, itself not being recognized by the law.

The Court below was therefore right to have struck out the case commenced in the first place without jurisdiction.

For the above and fuller reasons contained in the leading judgment, I also find no merit in this appeal. It is hereby dismissed by me. I affirm the judgment of the Court below delivered on 17th November, 2014.

Appeal Dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the copious and erudite reasons given by my learned brother ABDU ABOKI, JSC in the lead judgment just delivered. I agree with the reasoning and conclusion that this appeal is devoid of merit.

This is an appeal against the judgment of the Court of Appeal Port Harcourt Division delivered on 17th November, 2014 Coram: Mohammed Lawal Garba, Modupe Fasanmi, Stephen Jonah Adah (JJCA) which affirmed the decision of the High Court of Rivers State, delivered on 20th June, 2011 by Hon. Justice B. A. Georgewill, The Appellants were Plaintiffs at the trial Court in Suit No. PHC/2060/2005. In 1996 Andoni Local Government was created by the Federal Government, after which two Councils of Chiefs emerged and operated separately within the same Local Government Area causing confusion and crisis within the rank of Chiefs in Andoni.

For better understanding of this appeal there is need recapture herein the essence of the case made by both parties at the two Courts below; The Appellants herein were the Plaintiffs at the trial Court who sought the following reliefs:-

1. A declaration that by the Omagwa Peace Accord as contained in a document titled Communique released during the Obolo National Retreat for Andoni Chiefs held at the International Airport Hotel Omagwa, Port Harcourt from 10th -13th November 2004 and subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 18th November, 2004, the apex ruling Chieftaincy Body or Council in Andoni Local Government Area of Rivers State in the Andoni Chiefs Council.

2. A declaration that the so called Andoni Traditional Rulers Council is not only but also extinct by virtue of peace accord reached at the Omagwa retreat held for the Andoni Chiefs from the 10th -13th November 2004 at the International Airport Hotel Omagwa, Port Harcourt and the subsequent agreements reached at the meeting of the Andoni Chiefs Council held at Delta Hotels, Port Harcourt on the 18/11/2004 and Ngo Town, Andoni Local Government Area on 30/12/2004.

3. An Order of this Court directing or compelling the 1st, 2nd, 3rd, 4th Defendants to comply with the decisions of the Andoni Chiefs Council contained in communiqué released during the Obolo National Retreat for Andoni Chiefs held at the International Airport Hotel Omagwa, Port Harcourt from 10th - 13th November 2004 and subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 18/11/2004 at the Delta Hotels, Port Harcourt and the inaugural general meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on 30/12/2004.

4. An Order directing or compelling 1st, 2nd, 3rd, 4th Defendants to account for and transfer all monies accruing to the Andoni Chiefs Council vide 5% Local Government Allocation from November 2004 till date. Which the 1st, 2nd, 3rd and 4th Defendants have had and received through Account. No. 1163800001132 still being kept, maintained, and operated by the 1st, 2nd, 3rd and 4th Defendants in Trade Bank Plc situate at No. 14 Azikiwe Road, Port Harcourt in the names of Andoni Traditional Rulers Council or any other name for management and disbursement to all Andoni Chiefs in line with the formula agreed upon by consensus in the following manner: i) Rivers State Traditional Ruler Council (deducted at service) - 5% ii) President of Andoni Chiefs Council i.e. the 1st Defendant - 45%. iii) Andoni Chiefs Council - 50%.

5. An Order of this Court compelling the 1st - 4th Defendants to comply with the decisions reached at Omagwa Peace Retreat as contained in a communique released 48 during the Obolo National Retreat for Andoni Chiefs held at the International Airport Hotel, Omagwa Port Harcourt from 10th - 13thNovember, 2004and the subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 30/12/2004 by dissolving the former factional Council called Andoni Traditional Rulers Council. 6. An Order of perpetual injunction restraining the Rivers State Council of Traditional Rulers from transferring or remitting any money or cheque in respect of the 5% Local Government allocation accruing to Andoni Chiefs to the 1st Defendant or any other Chief in Andoni LGA or the Andoni Traditional Rulers Council or any other Chieftaincy Council established by the 1st to 4th Defendants in Andoni Local Government Area.

7. An order directing or compelling the 5th Defendant to pay all monies accruing to Andoni Chiefs Council from the 5% Local Government Allocation to Andoni Council of Traditional Rulers or the 1st to 4th Defendants on record personally from the 5% Local Government Allocation fund to Andoni Chiefs Council for management and disbursement to all Traditionally recognized Chiefs in Andoni LGA as contained in the communique released at the Omagwa Peace Retreat held between 10th - 13th of November, 2004 and the subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 18/11/2004 at the Delta Hotels, Port Harcourt and the inaugural meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on the 30/12/2004.

8. An order of perpetual injunction restraining the 6th Defendant or its agents, privies or servants from paying any money arising from the 5% allocation from the Rivers State Government or the 5th Defendant to the 1st - 4th Defendants of any of their agents, privies or servants or proxies vide Account No. 1163800061132 or any other account opened by the 1st, 2nd, 3rd and 4th Defendants in the 6th Defendant or any other Bank in Rivers State.

9. An order of perpetual injunction restraining the 1st - 4th Defendants from circulating any information intended to call for any meeting of the so called Andoni Traditional Rulers Council or in the name of any other Chieftaincy Institution in Ngo Town or any other Town or Community in Andoni LGA of Rivers of Rivers State or installing and or coronating any Chief in Andoni LGA under the aegis of the Andoni Traditional Rulers Councilor any other Chieftaincy name.

In response, the 1st - 4th Defendants in their Joint Consequential Amended Statement of Defence and Counter Claim led on 11/5/2010 counter claimed against the Claimants as follows:-

1. A declaration that the persistent manipulative interference by the Claimants under the umbrella of an association called Andoni Council of Chiefs or Andoni Chiefs Council in the management and all matters relating to the statutory allocation to the Defendants of the 5% of all revenues accruable to the Andoni Local Government Council is a violation of the fundamental rights of the Defendants' freedom of access to the fund.

2. An order of perpetual injunction restraining The Claimants whether by themselves, agents or privies and collaborators howsoever from further interfering in all matters relating to or affecting the management, sharing or application of the Defendants' statutory allocation of 5% of all revenues accruing to the Andoni Local Government Council.

3. An order directing the Claimants jointly and severally to pay to the Defendants the sum of N200,000,000.00 only as specific and general damages.

The 5th Defendant also led its Statement of Defence.

The trial Court held that the act of the 1st Defendant of not protesting the Omagwa agreement and the subsequent sharing formula agreed upon and even forwarding a photocopy of the 5% cheque to the 1st Claimant and endorsing Exhibit M and T etc shows the 1st Defendant, President of the Andoni Chief Council as one who consciously and voluntarily subscribed to and accepted the agreements and decisions of the Omagwa Retreat. Therefore, the argument that the Defendants were deceived into signing the documents has no basis. Exhibit "L" showing the disbursement formula agreed by the President and Executive of the Council which is a very crucial document in the resolution having been signed by the Chairman and the Secretary of the Council is valid and can be relied on by the Court since there is no requirement for signing in the Constitution or Rules of the Andoni Chiefs Council. The trial Court held that subsequent meetings and actions thereafter were taken by the Claimants and the 1st - 4th Defendants to implement the decision and agreements reached at the Omagwa meeting. On the provision of the Rivers State Chieftaincy Edict 1978, which provides for a minimum of nine recognized Chiefs in each Local Government or the option of co- opting other indigenous Chiefs that are representing the Area into the Council of Chiefs where the recognized Chiefs are not up to nine in order to make up for nine Chiefs, the Court held that from Exhibit "A" and "B", the 1st Defendant is the only Chief recognised by the Local Government in Andoni and by agreeing to the formation of the Andoni Chiefs Council of which he was appointed the President he had exercised his right of co- option.

The Court further held that it was the agreement to the formation of the Andoni Chiefs Council that led to the Claimant's withdrawal of their appeal against the judgment in Exhibit "C". The trial Court also held that the judgment in FHC/1783/2003 is on completely different set of facts and circumstances from those in the instant suit and is therefore distinguishable from those in the instant case based on the pleadings, facts and evidence in the instant suit. The trial Court upheld Appellants' claims and dismissed the 1st - 4th Respondents' counter claim. The Court upheld that the claims of the claimant succeeds and dismissed the 1st to the 4th Defendant's counter claim. The present 1st - 4th Respondents appealed to the Court of Appeal vide notice led on 15th July, 2011.

The issues formulated at the Court of appeal are as follows:-

1. Whether the Andoni Chief's Council is a legal person with capacity to sue or be sued.

2. Whether the Court was right that there was a binding agreement reached at the Omagwa Retreat.

3. Whether the High Court was right that subsequent steps were taken by the Appellants and the 1st-4th Respondent to implement the contents of Exhibit "P".

4. Whether the Andoni People can reach agreement and reach decisions contrary to law.

5. Whether the 1st - 4th Respondents were entitled to judgment.

The Court below held that although, the Appellants herein argued that the Andoni Chiefs Council in the Andoni Local Government Area is a creation of Cap 25 and insisted that the Omagwa Retreat and Communique did not specify the name in which the Council of Chiefs was to be called, the Appellants herein is not a juristic person. The Council of Chiefs for a Local Government Area in its minimum and maximum number should be nine as provided in Section 11(2) and it is different from Section 11(1) which provides that the recognized Chiefs in the Local Government may be more than nine. The Andoni Chiefs Council which is made up of all the Chiefs about 120 of them cannot be said to be a creation or creature established in compliance with provisions of Cap 25. The procedure for co-option in Section 25 was not duly followed. The Appellants' herein claims and actions were purely and solely a representative one which an individual could sustain in a representative capacity. The Court below held that the claims were made on behalf of the Andoni Chiefs Council.

The Court below also held that the suit or action cannot be saved by the mere presence of the individual names of the 1st - 4th Respondent on the writ or the pleadings. The part of the council they purported to represent, for the purpose of Cap 25, the Andoni Chiefs Council is not in existence and cannot appoint any other person, natural or artificial to sue on its behalf.

On Issue 2, the Court agreed that although there was a binding agreement between the Andoni Chiefs' Council, the agreement cannot be enforceable by the 1st- 4th Appellants as a body of Andoni Chiefs' Council, a body that lacks the juristic persona to sue or be sued. Also, the Court held that it will not interfere with the decision of the trial Court as to the findings of fact on the steps taken by the 1st - 4th Respondents or the 1st- 4th Appellants to implement the contents of Exhibit "P". The Court went further to hold that Andoni People cannot reach an agreement or decisions contrary to any extant laws of Rivers State. However, Exhibit "P" relates to the decision taken by the 1st Respondent herein in this case and not by the Andoni people as regards the 5% Local Government Allocation fund to Andoni Chiefs Council for management and maintenance of the traditional institutions in the Local Government. The Appeal was dismissed although other issues were resolved in favour of the Appellants herein. The Court held that the judgment of the High Court be set aside on the resolution of issue 1 to the effect that the High Court lacked requisite jurisdiction since the Appellants herein are not corporately is not a juristic personality.

At the Supreme Court an amended Notice of Appeal was led by the 1st-4th Appellant on 25th February, 2015 with seven grounds of appeal.

In the lead judgment by my learned brother, the issues identified by the 1st - 4th Respondents were adopted for the determination of the appeal. I will also adopt the same issues:

1. Whether the Court of Appeal had jurisdiction to entertain the 1st - 4th Respondents' appeal brought by Notice of Appeal dated and led on 15th July, 2011?

2. Whether the Court of Appeal committed any error in law when it struck out the Preliminary Objection led by the Appellants against Ground 1 of the 1st - 4th Respondents' Notice of Appeal dated and led on 15th July, 2011?

3. Whether the Court of Appeal committed any error in law when it held that the Appellants' suit before the High Court was incompetent, and thereupon proceeded to strike out the suit?

On the question of the Notices of Appeal and whether there is a valid Notice of Appeal from the 1st - 4th Respondents before the Court of Appeal, we must look at the facts. The judgment of the High Court was delivered on the 20th day of June, 2011. The 1st - 4th Respondents led their first Notice of Appeal at the Court of Appeal on the 21st day of June, 2011, within the ninety days stipulated in Section 24 of the Court of Appeal Act. The said appeal was withdrawn by the Notice of Withdrawal of Appeal led by the 1st - 4th Respondents on the 15th day of July, 2011. The 1st - 4th Appellant led their second Notice of Appeal on 15th July, 2011, also within the time stipulated by the Court of Appeal Act for appealing against the judgment of the High Court. Since the two Notices of Appeal were led within the time provided by the rules, they are valid notwithstanding the withdrawal of one of them which does not affect the validity of the 2nd notice. See ALH. UMARU ABBA TUKUR v. GOVERNOR OF GONGOLA STATE (1988) 1 SCNJ 54, (1988) 1 NWLR Pt. 68 Pg. 39; YAKI v. BAGUDU (2015) 18 NWLR Pg.1491 Pg.288 . In essence, it is not improper to file more than one Notice of Appeal so long as issues are distilled frame only one notice of appeal.

The other issue raised is the significance of the preliminary objection raised by the Appellant at the Court below where the Appellant had objected only to ground 1 of the 1st - 4th Respondents' ground of appeal. I agree that where the notice of preliminary objection is not targeted against a fundamental defect in an appeal which renders the appeal wholly incompetent and liable to be terminated in limine, then such a preliminary objection is incompetent and liable to be struck out. The proper procedure to effect a Respondents complaint about the incompetence of a ground of appeal or a process is to file a motion on notice to have it struck out. See: ODUNUKUWE v OFOMATA (2010) LPELR 2250 SC, NNPC v FAMFA OIL LTD (2012) 5-7 SC (Pt.1) Pg.1 at Pg.29.

The complaint by the Appellant regarding the failure of the Court below to call for their opinion before taking a decision on an issue raised suo motu is in my view not valid. The preliminary objection raised by the respondents was found incompetent and struck out. No doubt, where a preliminary objection already argued is found incompetent, there is no need for an extra address of Counsel before the Court can decide that it has no jurisdiction to determine it and to strike it out.

On the issue of whether the Appellants' (Original Plaintiffs) suit was properly constituted, the Court of Appeal decided in favour of the present Respondents because the 1st - 4th Appellants' suit was not properly constituted as to parties and was found incompetent. Even though the lead judgment at the Court of Appeal saw merit in the Appellants' claims, the claim was struck out for being improperly constituted. The quarrel between the parties is whether or not the Apex ruling chieftaincy body or Council in Andoni Local Government is Andoni Chiefs Council or the Andoni Traditional Rulers Council, Andoni LGA.

Thus the real controversy is whether Andoni Chiefs Council in Andoni Local Government who instituted the suit have a corporate juristic capacity to sue or be sued even though each of the members had individual capacity so to do.

The answer to this dilemma rests on the interpretation of Section 11 of the Chiefs Law of Rivers State Caps 25. By the Law, the Governor is entitled by instrument to recognize a Chief occupying the Chieftaincy stool of a town or community. There is a Council of Chiefs in each Local Government Area which must be recognized by the Governor in compliance with Section 11 (1) & (2) of Chiefs Law. It is only the 1st Appellant in this case that is a recognized Chief pursuant to Section 11 of the Chiefs Law. The Andoni Chiefs Council in the circumstances of this case is not composed pursuant to Section 11 of the Chief Law and cannot be vested with juristic personality expressly or impliedly and more importantly, the valid Andoni Chiefs Council cannot appoint any other persons to sue on its behalf.

The consequence of the above is that in the instant appeal, the general statement of the law holds good in that for a Plaintiff's suit to be properly constituted, so as to vest jurisdiction on the trial Court, the Plaintiffs must have the capacity and legal competence to initiate it. The lack of juristic personality of the Appellants (as Plaintiffs) as an entity to file this action ab initio affected adversely the jurisdiction of the trial Court to entertain their claim. I agree that the appeal be dismissed. I abide by the order as to costs.

Appeal Dismissed.

TIJJANI ABUBAKAR, J.S.C.: My lord and learned brother, ABOKI, JSC granted me a preview of the leading Judgment prepared and rendered in this appeal, I am in full agreement with the reasoning and conclusion and therefore adopt the Judgment as mine I have nothing extra to add. I abide by all consequential orders including the order on costs.

Appearances:

Chief Sebastian T. Hon, SAN, FCIArb, with him, Chief Friday Eneawaji, Esq., Evelyn N. Agoh, Esq., Daniel A. Ane, Esq., Aisha Zira Bello, Esq. and David T.Agashua, Esq. - For Appellants

O.C.J Okocha, SAN, with him, His Highness, E.E. Ada-Okworoso, Esq. - For 1st - 4th Respondents

Lawrence S. Oko-Jaja, Esq., with him, Lois Oko-Jaja, Esq. - For 5th Respondent

Judgment

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory High Court Abuja delivered by HON. JUSTICE O. A. ADENIYI on 4th May 2016 in suit No: FCT/HC/CV/630/14. The 1st Respondent as the Plaintiff at the lower Court claimed against the 2nd to 6th and the Appellant at the said Court the following reliefs: “1.

A declaration that the Plaintiff is the lawful holder of Statutory Right of Occupancy and entitled to possession of all that piece of land measuring approximately 1999.52 square metres know as Plot No.864 located at Asokoro District Cadastral Zone A4, Abuja (and now particularly known and described as No. 26, Ukpabi Asika Street, Asokoro, Abuja) and marked by property Beacons PB. 1709, PB. 1714, PB. 1713 and PB. 1710, which is covered by Certificate of Occupancy No.

FCT/ABU/KN.961 dated 26th day of October, 1988 issued under the hand of the Honourable Minister of the Federal Capital Territory and which was duly registered as No. FC 74 at page 74 in Volume 13 of the Certificate of Occupancy Register in the Lands Registry Office at Abuja at Twelve O’clock in the afternoon of 1st day of November, 1988 by the Deed Registrar, Abuja. 2.

A declaration that the 1st to 5th Defendants have no lawful authority or powers to remove, destroy or demolish any building or other structures on ground only that title to the property have been revoked or indeed for any other reason except in strict compliance with the provisions of the Constitution and other enabling statutes. 3.

A declaration that by virtue of the provision of Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 and all other enabling statute, it is only a Court of law duly constituted and vested with jurisdiction that can order the demolition of a building on ground that the property belongs to a rival claimant or that the Plaintiff is not entitled to the property. 4.

A declaration that by the state of Nigerian law, it is only the 6th Defendant who claims to be entitled to possession of the property who can lawfully take steps within the judicial system and by means of a Court action to obtain Court orders for the demolition of buildings adjudged to be in trespass and not by resort to self-help with the aid of the 1st to the 5th Defendants. 5.

An order of mandatory injunction directing the Defendants, whether by themselves, their agents, privies, servants and officers howsoever known or described to vacate the piece of land and restore possession to the Plaintiff. 6.

An order of injunction, thereafter restraining the Defendants, their agents, servants, privies and assigns howsoever called and described from trespassing upon, entering or in any manner whatsoever tampering with the Plaintiff’s ownership or rights over the piece of land measuring approximately 1999.52 square metres know as Plot No. 864 located at Asokoro District Cadastral Zone AO4, Abuja (and now particularly known and described as No. 26, Ukpobi Asiko Street, Asokoro, Abuja) and marked by property Beacons PB. 1709, PB. 1714, PB.1713 and PB. 1710, which is covered by Certificate of Occupancy No.

FCT/ABU/KN.961 doted 26th day of October, 1988 issued under the hand of the Honourable Minister of the Federal Capital Territory and which was duly registered as No. FC 74 at page 74 in Volume 13 of the Certificate of Occupancy Register in the Lands Registry Office at Abuja at Twelve O’clock in the afternoon of 1st day of November, 1988 by the Deed Registrar, Abuja. 7.

The sum of Forty Million Naira (N40,000,000.00) general damages (including aggravated damages) for trespass, unlawful destruction of the Plaintiff’s house and other structures on the property.” Pleadings and frontloading materials and documents were duly exchanged between the parties and the matter proceeded to trial. At the end of hearing the learned trial Judge gave a considered judgment and entered judgment in favour of the 1st Respondent to this appeal as per his claims and reliefs sought from the lower Court.

The Appellant was aggrieved and he has by his Notice of Appeal dated and filed on the 6th of May, 2016 appealed to this Court on seven (7) grounds which without their Particulars are as follows: “GROUND 1 The judgment is against the weight of evidence. GROUND 2 The learned trial Judge erred in law which occasioned a miscarriage of justice when he held that the Plaintiff’s Suit as constituted is properly constituted because Trade Wheels Nig. Ltd had the requisite legal capacity to institute and maintain this action on behalf of and as an agent of Alh. Turadu Amadu Dantata.

GROUND 3 The learned trial Judge erred in law which occasioned a miscarriage of justice when he held as follows: “Therefore in the present case even if the parties joined issues as to whether or not the plaintiff gave consent to the attorney to commence the action, the attorney need not produce a written consent in other to establish that fact”.

GROUND 4 The learned trial Judge erred in law which occasioned a miscarriage of justice when he relied on Exhibit P1 (i.e. a mere Certificate of Occupancy) tendered by the Plaintiff as evidence of title, to declare title in respect of Plot No. 864 Asokoro, also known as Plot No 26 Ukpabi Asika Road, the Plot of land the subject matter of this suit, in favour of the Plaintiff.

GROUND 5 The learned trial Judge erred in law and came to a wrong conclusion which occasioned a miscarriage of justice when he held as follows: “In view of its peculiar land tenure, only one paramount way is legally recognized by which a party can prove statutory rights or title to or ownership of land within the Federal Capital Territory and this is by production of documents of title, be it certificate of occupancy or deed of assignment or however described, issued under the hand of or given with the consent of the Minister of the Federal Capital Territory”.

GROUND 6 The trial Judge erred in law and came to a wrong conclusion which occasioned a miscarriage of justice when he held as follows: “The settled legal position, as rightly contended by Mr. Onoja of counsel for Plaintiff, is that evidence of a right of occupancy raises a presumption that the holder of the rights is the owner of the land to which the right of occupancy relates. As was held by the Supreme Court in ILONA VS IDAKWO (2003) 11 NWLR (Pt. 830) 53, a document of title such as a Certificate of Occupancy is prima facie evidence of title. It will only give way to a better title.

See also Olohunde vs Adeyoju (2000) 10 NWLR (Pt. 676) 562, Edebiri vs Daniel (2009) 8 NWLR (Pt 1142) 15”. GROUND 7 The learned trial Judge erred in law which occasioned a miscarriage of justice when he declared title in favour of the Plaintiff and awarded him the sum of N40 Million (Forty Million Naira) as general and aggravated damages jointly and severally against the Defendants for trespass and unlawful destruction of the Plaintiff’s property at plot No 864 Asokoro District, Abuja.” The Appellant’s Brief of Argument was filed on 24th April, 2017.

The said Appellant’s Brief of Argument was deemed filed on 12th April, 2018. The 1st Respondent’s Brief of Argument was filed on 5th July, 2017 and was also deemed filed on 12th April, 2018 while 2nd – 6th Respondents’ Brief of Argument filed on 11th October, 2021 was deemed filed on the same date. The Appellant filed a Reply Brief of Argument 4th August, 2017. The appeal was heard on 17th March, 2022 when the respective learned Counsel to the parties adopted their Brief(s) of Arguments.

The Appellant distilled four issues for determination of the appeal as follows: a) Whether having regard to the pleadings and evidence in this case, the learned trial Judge was not wrong when he held that this suit was properly constituted and that TRADE WHEELS NIGERIA LIMITED had the requisite legal capacity to institute and maintain this action in Court notwithstanding the failure of the 1st Respondent to tender in evidence the purported Power of Attorney Alhaji Tauradu Amadu Dantata allegedly donated in favour of TRADE WHEELS NIGERIA LIMITED in respect of the Plot in dispute, as proof of the power/authority or capacity of the Attorney to sue and maintain this action in Court. (Distilled from Ground Two (2) of the Appeal). b) Whether the learned trial Judge was not wrong when he held that there was no need to produce in evidence before the Court the purported Power of Attorney allegedly donated in favour of TRADE WHEELS NIGERIA LIMITED by Alhaji Tauradu Amadu Dantata as proof of the Attorney’s authority or power to sue and maintain this action in the capacity it did, when that the lack of capacity of Traded Wheels Nig.

Ltd to institute and maintain the action was raised as a live issue in the case by both the Appellant and the 2nd – 5th Respondents. (Distilled from Ground Three (3) of the Appeal). c) Whether the learned trial Judge did not err in law when he relied on Exhibit P1 (a mere Certificate of Occupancy) without proof of root of title, i.e. offer/conveyance of a Statutory Right of Occupancy and acceptance of same thereat to declare title in favour of the 1st Respondent in respect of the plot in dispute in this case. (Distilled from Ground Four (4), (5) and (6) of the Grounds of Appeal). d) Whether having regard to the pleadings and evidence in the case, the award of N40,000,000.00 by the Honourable Court against the Appellant and the 2nd – 5th Respondents, as general and aggravated damages for trespass and demolition of property, was not excessive, perverse and contrary to all known legal principles of law on damages. (Distilled from Ground Seven (7) of the Grounds of Appeal).” On his part, the learned Counsel to the 1st Respondent F.

R. ONOJA ESQ., nominated one issue for determination viz: “Whether the learned trial Judge was right to have entered judgment for the 1st Respondent in the circumstances.” A sole issue was also formulated for determination of the appeal by DR.

KAYODE AJULO for the 2nd to 6th Respondents thus: “Whether in view of the circumstances of this matter and the evidence adduced by the parties the learned trial Judge was right to have awarded the claims of the Plaintiff and dismissed the Defence of 1st to 5th Defendants.” The appeal will be determined on the four issues raised for determination by FRIDAY ODUMA, Esq., for the Appellant. I will take issues 1 and 2 together.

ISSUES 1 AND 2 It is the submission of the learned Counsel to the Appellant that the lower Court ought to have dismissed the suit of the 1st Respondent for failure, to lead any credible evidence that it has power and authority to act as lawful Attorney Alhaji TAURADU AMADU DANTATA in this matter in that the Plaintiff did not tender the power of Attorney by which he claimed to derive be in Court in respect of the disputed plot. He stated an Attorney must sue in the name of the Donor and not in his own name.

He relied on pages 1, 6, 7, 27, 32, 50, 60, 65 and 72 of the record and the answer to 1st Respondent’s pleadings as contained in paragraphs 9, 10 and 11 of the Appellant’s Statement of Defence in the lower Court. He also relied on the cases of: 1. VULCAN GASES LTD VS G. F. INDUSTRIES AG (2001) 9 NWLR (PART 719) 610. 2. MELWANI V. FIVE STAR INDUSTRIES LTD (2002) 3 NWLR (PART 753) 217 and 3. DR. B. U. V. A. G. RIVERS & ANOR (2012) LPELR – 14243 CA page 10.

That failure to produce any iota of evidence in proof of Plaintiff’s assertions that Alhaji Tauradu Amadu Dantata donated a power of Attorney to 1st Respondent (Trade wheels Nigeria Limited in respect of the disputed plot means that 1st Respondent has failed to discharge the onus of proof on him. He relied on the cases of: 1. AGOMUO V. AGUWA (1992)… NWLR (PT. 216) 250. 2. ALHAJI ABUBAKAR VS ABUBAKAR WAZIRI & ORS (2008) LPELR – 54 (SC) and 3. NWEKE VS. NWEKE (2014) 43 WRN 59 at 94.

He urged the Court to invoke Section 167 (d) of the Evidence Act 2011 against the 1st Respondent for failure to produce what learned Counsel to the Appellant called “the purported power of Attorney allegedly donated in its favour …” He relied on Section 167 (d) of Evidence Act, 2011 and ABUBAKAR V. WAZIRI & ORS (supra). He submitted that the lower Court was wrong in holding that the Appellant and 2nd Respondent did not challenge the competence of the Attorney to institute the action, notwithstanding that all the Defendants challenged the competence of the action.

That the conclusion reached contradicted the earlier findings of the lower Court to the effect that both set of Defendants at the lower Court challenged the competence of the action in their pleadings. He opined that the conclusion of the lower Court would open the floodgate to all manners of litigations in matters not relating to such litigants. That appointment of an agent should be in accordance with Sections 2 and 15 of the Land Instrument Registration Act Cap. 515 LFN. He urged the Court to resolve issues 1 and 2 in Appellant favour.

Responding to the above submissions, learned Counsel to the 1st Respondent, in respect of question of failure to tender power of Attorney submitted that all the Appellant’s submissions and authorities cited did not state that power of Attorney must be tendered in evidence for an action which was commenced in the Name of the Plaintiff by his lawful Attorney to be valid. That since the action was commenced in Plaintiff’s name it would be strange to tender power of Attorney in respect of action commenced in his own name and as such the case of MELWANI supra does not hold in Appellant’s favour.

That what the case of Melwani decided was that the validly or otherwise of a power of Attorney was irrelevant once the action was commenced in the name of the Donor of the power of Attorney.

He stated that the decision of the lower Court and analysis done to the case of Melwani by lower Court represent the trite position of the law. He quoted in extensio pages 163 to 167 of the record of appeal. Learned Counsel to the 1st Respondent also relied on the decision of Supreme Court in Melwani’s case page 236 E -D thereof to submit that the present action was properly constituted at the lower Court. That the decision in Melwani’s case was cited out of context by the Appellant. He urged the Court to resolved issues 1 and 2 against the Appellant. On his part, Dr.

Ajulo did not make any submission in respect of issues 1 and 2 argued by the Appellant, on behalf of the 2nd to 6th Respondents. RESOLUTION OF ISSUES 1 AND 2 The contention of the Appellant in the two issues is that the action was not properly constituted in that the Plaintiff’s Attorney lacked the capacity to maintain the action. ​ The law is trite that an action must be properly constituted in terms of Plaintiff with capacity to sue and Defendant with capacity to defend the actions so as to vest jurisdiction in the Court seised of the matter to adjudicate upon it. See: 1.

ALHAJA RAFATU AYORINDE & ORS VS ALHAJI ONI & ANOR (2000) 3 NWLR (PART 649) 348 per KARIBI-WHYTE, JSC. 2. J. SUNKANMI DAIRO & ORS VS THE REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE OF LAGOS (2018) 1 NWLR (PART 1599) 62 at 76 C per AKAAHS, JSC. 3. ATAGUBA & COMPANY VS GURA NIGERIA LTD (2005) 8 NWLR (PART 927) 429 at 455 per DOZIE, JSC who said: “Undoubtedly, for an action to be properly constituted so to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant.

As a general principle, only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. See Shitta v. Ligali (1941) 16 NLR 23, Agbonmagbe Bank Ltd v. General Manager G. B. Ollivant Ltd and Anor (1961) All NLR 116.

The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can be brought by or against any party other than a natural person or person unless such a party has been given by statute, expressly or impliedly or by the common law, either: a. a legal person under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by Act of Parliament; or b. a right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sue but not incorporated.” Thus where the capacity of a Plaintiff is challenged in a suit on ground of lack of capacity of or locus standi to commence the action the Plaintiff or the Claimant is expected to establish his capacity to sue or maintain the action.

See: 1. CITEC INTERNATIONAL ESTATES LTD V. EDICOMSA INTERNATIONAL INC & ASSOCIATES (2018) 3 NWLR (PART 1606) 332 AT 358C per EKO, JSC who said: “The lower Court held, at page 173 of the record, that where the legal capacity of the plaintiff is challenged by the defendant the onus is on the former to prove his legal status or capacity and that this is done by the plaintiff leading evidence, oral or documentary to prove its legal capacity that is challenged. The lower Court is quite right on this.”

2. GOODWILL & TRUST INVESTMENT & ANOR VS. WIT & BUSH LTD (2011) 8 NWLR (PART 1250) 500 AT 540 B- H per ADEKEYE, JSC. The capacity of the Plaintiff was stated as follows: “ALHAJI TURADU AMADU DANTATA (SUING THROUGH HIS LAWFUL ATTORNEY TRADE WHEELS NIGERIA LTD.” Now the apex Court in the land had in numerous cases explained and firmly decided on the meaning and implication of Power of Attorney and the position of an Attorney suing for his principal the donor. I call in aid the following decisions of the Supreme Court: 1.

AMBASSADOR ALHAJI SHEHU OTHMAN MALAMI OFR & ANOR VS IMONKHUEDE OHIKHUARE & ORS (2019) 7 NWLR (PART 1670) 132 at 156 H to 157 A – F per AKA’AHS JSC who said: “Mr. Agi, SAN has argued in the appellants brief that the issue or capacity to sue did not arise from the pleadings or issues fought in the case but in the judgment of the Court below. He is right in so submitting.

The donation of an irrevocable power of attorney by the 1st appellant to the 2nd appellant merely warrants or authorizes the 2nd appellant who is the donee to do certain acts in the stead of the donor but does not confer or transfer title to the 2nd appellant. The meaning and nature of a power of attorney was explained by Nnaemeka-Agu, JSC in Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638 at pages 664- 665, paras.

E-8 as follows:- “It is left for me to deal with the second respondent’s contention that by execution of the power of attorney, Exhibit “A” without their consent the plaintiff/appellant had committed a breach of the covenant not to part with the possession of the demised property, without the lessor’s consent. To begin with, it appears to me that this thrust of the argument lost sight of the time nature of a power of attorney.

A power of attorney is a document, usually but not always necessarily under seal, whereby a person seised of an estate in land authorises another person (the donee) who is called his attorney to do in the stead of the donor anything which the donor can do, lawfully usually spelt out in the power of attorney. Such acts may extend from receiving and suing for rates and rents from, to giving seisin to third parties.

It may be issued for valuable consideration or may be coupled with interest, in either case, it is usually made to be irrevocable either absolutely or for a limited period… A power of attorney merely warrants and authorises the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee rather it could be a vehicle whereby these acts could be clone by the donee for and in the name of the donor to a third party.

So even if it authorises the donee to do any of these acts to any person including himself the mere issuance of such power is not per se an alienation or parting with possession”. The Court below was wrong to state in Vol. 3 page 2278 of the records that the 1st respondent (1st appellant) no longer had the power to initiate the proceedings at the lower Court for himself because it is settled that an irrevocable power of attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee. The Court below wrongly applied Chime v.

Chime (2001) 3 NWLR (Pt. 701) 527 to the proposition because Chime v. Chime supra followed the earlier decisions in Ajuwon v. Adeoti (1990) 2 NWLR (Pt. 132) 271, Oshola v. Finnih (1991) 3 NWLR (Pt. 178) 192 which were applied in Ude v. Nwara supra.” (Underlined mine) 2. ADEKOLA MUSTAPHA VS.

CORPORATE AFFAIRS COMMISSION (2019) 7 (PT 2) SCM 114 at 126 D- E per OKORO, JSC who said: “Let me state clearly that even where a party gives power of attorney for a person or counsel to sue on his behalf the law is settled that a donee of a power of attorney has no locus standi to institute an action on behalf of the donor in his own name. He must sue in the name of the donor as he is merely an agent of the donor.

In Vulcan Gases Ltd v Gesellschaft (2001) 26 WRN 1, at 26 this Court held that:- “The donee of a power of attorney or an agent in the presentation of a Court suit or action pursuant to his powers must sue in the name of the donor or his principal and not otherwise.” (Underlined mine) The Plaintiff in his statement of claim pleaded in paragraphs 7-10 of the Statement of claim as follows: “7. The plaintiff avers that the property is now known and better described as No. 26 Upkabi Asika Street, Asokoro, Abuja. 8.

The Plaintiff avers that on or about the 11th day of July, 2008, the Plaintiff donated an irrevocable Power of Attorney to Trade Wheels Nigeria Limited of No. 27a Hadeiia road, Kano in respect of the aforesaid property. The Power of Attorney aforesaid was submitted to the 1st Defendant’s office for registration by the Plaintiff’s letter date 7th July, 2008 a copy of which the Plaintiff hereby pleads and shall rely on it at the trial of this action.

All the copies of the Power of the Attorney aforesaid are in the custody of the 1st Defendant and subject to discovery or orders for subpoena duces tecurn, the Plaintiff hereby gives notice to the 1st Defendant to produce the Power of Attorney forwarded for registration at the trial of this action. 9. That upon the appointment of Trade Wheels Nigeria Limited as the lawful Attorney, the property as well as the title documents covering the land was handed over to the Attorney. 10.

The Plaintiff avers that the aforesaid piece of land was vacant and undeveloped at the material time when the Power of Attorney was donated to Trade Wheels Nigeria Limited. It was the Plaintiff’s Attorney who erected the fence around the property, built a house and placed a large container on the piece of land.” ​ In response to the above paragraphs of the Statement of Claim, the 2nd to 6th Respondents in their Joint Statement of Defence averred in paragraphs 4, 5 and 6 thereof as follows: “4.

The 1st to 5th Defendants deny paragraph 6 and 7 of the Statement of Claim and the Plaintiff is put to the strictest proof thereof. 5. The 1st – 5th Defendants deny paragraph 8 of the Statement of Claim. In further response, the 1st – 5th Defendants states that there was no Power of Attorney donated by the Plaintiff and there is no such Power of Attorney either submitted or in custody of the 1st Defendant for registration or for any other purpose. The 1st Defendant office did not receive any letter dated 7/07/08. 6. Paragraph 9 and 10 of the Statement of Claim are denied.

In further response the 1st – 5th Defendants states that the purported Plaintiff’s Attorney did not erect any fence around the property, built a house or place a large container on the subject matter of this suit. Even if the purported Plaintiff’s Attorney did so, it was without title to the plot and without approval from the Department of Development Control of the FCT.

The said fence and house, if any, were contrary to the FCT Act.” (Underlined mine) On his part, the 6th Defendant now the Appellant pleaded in the same vein as the 1st to 5th Defendants (now 2nd to 6th Respondents) in paragraphs 10 and 11 of his Statement of Defence as follows: “10.

The 6th Defendant denies paragraphs 8 and 9 of Plaintiff’s Statement of Claim and avers that the Plaintiff never donated Irrevocable Power of Attorney to Trade Wheels Nigeria Limited over his Land as he has no title to donate, neither did he submit any Power of Attorney to the 1st Defendant over the 6th Defendant’s plot No. 864 Asokoro District Cadastral Zone A4 and if there is any power of attorney to be donated at all, it is the 6th defendant who should do that and therefore puts the Plaintiff to the strictest proof of same. 11.

The 6th Defendant denies paragraphs 10, 11, 12 and 13 of Plaintiffs Statement of Claim and avers that Plaintiff and his Attorney were trespassers on Plot 864 Asokoro District Abuja. That the Plaintiff has no title to the property, neither has be any approval from the 6th defendant or from any quarters to build any structure whatsoever over the 6th defendant’s plot.

The Plaintiff is hereby put on notice to produce the said approval letter.” (Underlined mine) A close perusal or community reading of each of the defence of the two set of Defendants at the lower Court (now 1st to 5th Respondents and Appellant) glaringly show that they did not specifically deny the fact that the Plaintiff was actually suing vide his Attorney and not that the Attorney of the Plaintiff was suing for herself. No. The Plaintiff sued the 2nd to 5th Respondents and the Appellant through his Attorney as explicitly stated on the Writ and the Statement of Claim.

I have read together the terse denials of the Appellant and the 2nd to 6th Respondents on the issue of Power of Attorney and what could be seen is that they were only challenging the capacity of the Attorney and not the locus or capacity of the Plaintiff to institute the action. Reading the defence of each of the two set of Defendants at the lower Court, they have not in law denied the capacity of the Plaintiff or his Attorney to institute the action. The pleading(s) of the 2nd to 6th Respondents constitute admissions of facts pleaded in the Statement of Claim.

The 6th Defendant now Appellant made sure he tailored his defence along the path taken by the 2nd to 6th Respondents in their Joint Statement of Defence. They are deemed to have admitted the status and the capacity in which the Plaintiff had instituted the action as correct in law. They did not specifically deny in clear and direct manner the assertion of the Plaintiff as to the capacity by which the action was instituted. They were just being evasive. See: 1. MERIDIEN TRADE CORPORATION LTD CORPORATION LTD V.

METAL CONSTRUCTION (W.A) LTD (1998) 3SC 20 at 29 – 30 where it was held: “The basic rule of pleading is that a traverse whether by denial or refusal to admit, must not be evasive but must answer the point of substance. The pleader must deal specifically with every allegation of fact made by his opponent, he must either admit it frankly or deny it boldly. Any half admission or half-denial is evasive.” 2. IBAFON CHEMICALS LTD VS VISA INVESTMENT & SECURITY LTD & ANOR (2009) LPELR – 4273 per OGUNBIYI JSC who said: “An admission to entitle judgment could be express or implied.

While the former occurs when in accordance with the rules, if pleadings, a party fails to traverse a material allegation of fact of the opposite party, the latter, just as the name signifies, must be expressly and unambiguously stated. Presumption or insinuation would not qualify. The legal effect of both types is the same and both can be the basis of an application for judgment under Order 29 Rules 6. An authority in support is again the case of Anesons Farms Ltd v Nal Merchant Bank supra. Also the case of International Merchant Bank Plc v Comrade Cycle Co.

Ltd. (1998) 11 NWLR (Pt.574) at 460 a decision of this Court.” Per OGUNBIYI, J.C.A. (P. 24, paras. A-E).” PW2 ALHAJI ABDULDADIR ABACHA, the Executive Chairman of the Plaintiff’s Attorney testified on pages 137 – 138 of the record of appeal as follows: “PW2: ALH. ABDULKADIR ABACHA (Sworn in the Holy Qur’an, States in English Language) EXAMINATION- IN- CHIEF My name and address remain as it is in my Statement on Oath. Statement on Oath of Alh: Abdulkadir Abacha – WS2. Now shown to me are the documents I referred to in my Statement on Oath which I intend to rely on at the trial of this suit.

PC: I seek to tender the documents in evidence – 1 – 5DC: No objection 6 DC: No objection Court: Original Certificate of Occupancy registered as No. FC74 at page 74 in Volume 13 (C of O) in the Land Administration, Land Registry Office at Abuja – particularly referred to in paragraph 3 of the Statement on Oath of PW2 – Exhibit P1. Original Quit Notice dated 22/11/2013 issued by the Department of Development Control Abuja Metropolitan Council on Plot No. 864, Asokoro Cadastral AO4 – Exhibit P2.

Original Demolition Notice dated 30-01-2014, issued by the same office on the same property aforementioned – Exhibit P3. PW1: I invited a photographer to take photograph of the demolished property. They are the ones now shown to me. PC: I seek to tender the photographs. 1 – 5DC: We object. 6DC: We also object. PC: We humbly withdraw the documents sought to be tendered PC: That is all for the witness. CROSS – EXAMINATION By 1 – 5DC: The Plaintiff gave a Right of Occupancy to the company I represent. It is correct that we conducted a search on the genuiness of the property.

We were also given original Certificate of occupancy. We also did physical search. It is correct that we erected a fence on the property in order to secure it whilst we await for approval that we applied for which never earns. We submitted a drawing to the authority for approval. Personally, I was not physically available at the scene of the demolition. As such I cannot name the actual persons from the office of the 1st – 5th Defendants that carried out the demolition. 6DC: Plaintiff’s name is Alh. Amadu Dantata. I am not the Plaintiff in this case.

It is correct that Exhibit P1 gives my company title to the land, based on the Power of Attorney. The document gives the person who was given Power of Attorney title to the land.” It is significant that under examination-in-chief, the PW2 testified particularly that Plaintiff is Alhaji Turadu Amadu Dantata and that he was issued with Certificate of Occupancy as evidence of his title to the land. He also testified that Trade Wheel Nigeria Ltd was/is the Plaintiff’s Attorney in this action since July, 2008.

As can be seen from his evidence (PW2) reproduced above the learned Counsel to the 1st to 5th Respondents did not by way of cross-examination Challenge the capacity of the Plaintiff and the Attorney through which the Plaintiff sued the Defendants at the lower Court. ​Under cross-examination by Appellant’s learned Counsel, the witness PW2 stated in no uncertain terms that Alh. Amadu Danatata is the Plaintiff and that based on the power of Attorney, Exhibit P1 gives title to his company. The cross-examination neither query the capacity of the Plaintiff nor that of the Attorney.

This again is an admission by the Appellant to the proper constitution of the 1st Respondent’s action against the 1st to 5th Respondents and the Appellant. To my mind and on the settled position of the law the 1st Respondent eminently by his pleading and oral evidence of PW2 established conclusively established the fact that the Plaintiff instituted this action in his own name and through his lawful Attorney TRADE WHEELS NIGERIA LTD. See: 1. MUSTAPHA V. CAC supra 2. MALAMI CPR V. OHIKHUARE supra 3.

CITEC INTERNATIONAL ESTATES LIMITED VS EDICOMSA (2018) 3 NWLR (PART 1602) 332 at 358 C per EKO JSC. ​ I agree with lower Court that this action was properly constituted and it is competent. The lower Court properly assumed jurisdiction in adjudicating on the 1st Respondent’s Suit on the merit. Issues 1 and 2 are hereby resolved against the Appellant. I will take issues 3 and 4 together.

“c) Whether the learned trial Judge did not err in law when he relied on Exhibit P1 (a mere Certificate of Occupancy) without proof of root of title, i.e. offer/conveyance of a Statutory Right of Occupancy and acceptance of same thereat to declare title in favour of the 1st Respondent in respect of the Plot in dispute in this case. (Distilled from Ground Four (5) and (6) of the Grounds of Appeal). d) Whether having regard to the pleadings and evidence in the case, the award of N40,000,000.00 by the Honourable Court against the Appellant and the 2nd – 5th Respondents, as general and aggravated damages for trespass and demolition of property, was not excessive, perverse and contrary to all known legal principles of law on damages. (Distilled from Ground Seven (7) of the Grounds of Appeal).” On issue 3 as to whether the lower Court was right in relying on Exhibit P1 which the learned counsel to the Appellant referred to as a mere certificate of occupancy, he submitted that the conclusion by the trial Court that mere tendering of a certificate of occupancy without more is enough proof of title to land in FCT was wrong in law and therefore a miscarriage of justice.

That for a party to succeed in a claim for declaration of title to land he must show its root of title and failure to tender in evidence “its root of title to the plot in dispute in claim for title is fatal to its case as mere tendering of a certificate of occupancy is not enough proof of title.” He relied on the cases of: 1. BUREMOH VS. AKANDE (2000) 15 NWLR (PT. 690) 260 at 286. 2. OGUNLEYE VS. ONI (1990) 2 NWLR (PT. 135) 745 at 774 3. OTUKPO V. JOHN (2012) 7 NWLR (PT. 1299) 357 at 377.

He stated that the 1st Respondent had pleaded in paragraph 15 and 16 of the Statement of Claim that he is the owner and person entitled to possession of PLOT 864 ASOKORO DISTRICT ABUJA by virtue of a certificate of occupancy issued to him under the hands of the 2nd Respondent and registered as FC 74 at page in Volume 13 of the Certificate of Occupancy Register.

That the Appellant categorically raised the issue that 1st Respondent never applied for allocation of land in the Federal Capital Territory and therefore could not have been issued any statutory right of occupancy in respect of the plot to entitle him to a certificate of occupancy. That 2nd to 6th Respondents pleaded in the same vein. That since the 2nd to 6th Respondents denied issuing Exhibit P1 tendered by 1st Respondent, the latter was bound to prove how he came about Exhibit P1.

That all conditions precedent for acquisition of certificate of occupancy in FCT were not complied with by the 1st Respondent. He relied on MADU V. MADU (2008) 6 NWLR (PART 1083) 296. He also relied on Section 5(1)(a) and (2), 51(2) of the Land Use Act, 1978. He also relied on Section 297 (2) and 304 of the 1999 Constitution of the Federal Republic of Nigeria 1999 as amended.

He submitted that in this case there is no iota of evidence that the 1st Respondent was issued with any letter of conveyance of approval of offer of terms of statutory and conditions of occupancy, and that he same and paid requisite fees/charges Respondent to a Certificate of Occupancy. He relied on paragraphs 7, 8, 9 and 10 of Joint Statement of Defence filed by the 2nd to 6th Respondents at lower Court contained in supplementary any record. That the 1st Respondent did not deny the facts pleaded by Appellant and 2nd – 6th Respondents and that facts not denied are deemed admitted.

He relied on the cases of BALOGUN VS. EOCB (NIG) LTD (2007) ALL FWLR (PT 382) 1852 at 1969 D – F and DANLADI VS. DANGIRI (2014) LPELR – 24020 (SC). That the 1st Respondent has failed to prove his title to the land and that no title could be declared in 1st Respondent’s favour on Exhibit P1 which he termed a mere certificate of occupancy. He urged the Court to resolve issue 3 in Appellant’s favour.

On issue 4 as to whether the award of N40,000.00 in favour of 1st Respondent against the Appellant and 2nd to 6th Respondents, jointly and severally as generally and aggravated damages for trespass and demolition of property was not excessive, perverse and contrary to principles, the learned Counsel to the Appellant submitted that the lower Court ought to have dismissed the 1st Respondent’s claim since 1st Respondent, according to him did not prove his title to the Plot in dispute and any demolition of 15 properties.

That there was no evidence of any development by 1st Respondent on the land talkless of its destruction by the Appellant or 2nd – 6th Respondents. He submitted that award of damages is a discretionary remedy available to the Court where the claim for damages is established. That damages are not awarded as a matter of course but on cogent, credible and reliable evidence shown by the claimant establishing his entitlement to such. He relied on the case of UTC NIGERIA LTD VS. SAMUEL PETERS (2009) LPELR-8426 CA 44 D – C.

On when an Appellate Court will intervene to remedy ridiculous award of damages. He relied on the case of SAM & ANOR vs. KALU (2011) -4092 CA pp. 8 to 9. He referred to page 17 where the 1st Respondent pleaded destruction of his properties and the fact that the Appellant and 2nd to 6th Respondents vehemently denied the 1st Respondent’s assertion. That 1st Respondent failed to lead evidence of destruction or damages against the Appellant and 2nd to 6th Respondents. He opined that the award was based on ipse dexit pf PW1. He relied on the case of KUCHITA & ORS V.

MOHAMMED (2012) LPELR CA 14357 p. 22 C – D. On need to avoid speculation in claim for damages. That there was no evidence that it was the Appellant that demolished the building or structure on the land or that Appellant took part in it. That it was wrong for lower Court to have relied on unpleaded and unsubstantiated allegation of 1st Respondent to find the Appellant liable of payment of damages for trespass. He urged the Court to resolve the issue against the Respondent.

Responding to the above submissions under issue 3, the learned Counsel to the Respondent submitted that a Certificate of Occupancy is a prima facie evidence of title and raises a rebuttable presumption that the holder is the owner of the land in dispute unless somebody with a better title can show otherwise.

That the trial Court stood on sound legal principles when the lower Court came to the conclusion that having tendered Exhibit P1, it became irrelevant and immaterial for the Plaintiff to further establish that he applied to Statutory Right of Occupancy or that he accepted the grant or that he paid fees for the issuance of Certificate of Occupancy and so on. The learned Counsel to the Respondent submitted that since both 1st Respondent and Appellant relied on Certificate of Occupancy Exhibit P1 and D6 respectively from the Hon.

Minister of Federal Capital Territory on 1/11/1988 and 8/1/2014 respectively, the Appellant did not contend that Exhibit PI relied upon by the 1st Respondent was forged as none of the Defendant at the lower Court pleaded that Exhibit P1 was forged, and that the law has raised a prima facie evidence of Right of Occupancy and a presumption that the holder of the Right of Occupancy is the 1st Respondent. He relied on numerous cases including FINNIH V IMADE (1992) 1 NWLR (PART 219) 571 and MUSA V OSAWE (1991) 8 NWLR (PART 208) 238.

He submitted that it is now settled Jaw that reliance on title documents one of the five ways of establishing title to land. He relied on the case of KYARI V ALKALI & ORS (2001) 11 NWLR (PT. 724) 412 AT 439 and IDUNDUN V OKUMAGBA (1979) 9 – 10 SC 227. He relied on the case of AREMU V CHUKWU (2012) 3 NWLR (PART 1288) 587 and AYANWALE V ODUSAMI (2011) 18 NWLR 1278 AT 528. On the five conditions Court must consider in respect of the document of title relied upon. He also relied on Section 168(1) of the Evidence Act.

That Appellant did not show better title to the land in dispute and that Exhibit P1 was created first and being first in time the 1st Respondent has a better title. He relied on: 1. OMIYALE V MACAULAY (2009) 3 -4 SC 1. 2. ADOLE V. GWAR (2008) 3 -4 SC 78. 3. ASHIRU V OLUKOYA (2006) (PART 990) 1 SC. That the 1st Respondent was rightfully declared the owner of the land in dispute. He urged the Court to resolve issue 3 against the Appellant.

On issue 4 relating to ward of damages, learned Counsel to the 1st Respondent submitted that damages need not be specifically pleaded or proved by evidence as it flows naturally from the wrongful act of a Defendant. That trespass is actionable per se without the need to prove any kind of damages once the Court determines that trespass has been committed. He relied on the cases of: 1. ENG. LTD V ALPHA PRAXIS NIG. LTD & ANOR (2015) 5 NWLR 327; 2. FMF LTD V EKPO (2005) ALL FWLR (PART 248) 1667; 3. OCEANIC BANK INT. LTD V OWONOR (2009) 11 FWLR (PART 454) 1599 and 4.

UBN LTD V AJABULE (2011) 18 NWLR 178. He submitted that the lower Court was right. He relied on the case of SPDC NIGERIA LTD V Edamkue (2009) 4 NWLR (PART 1131) 260 E – G. He urged the Court to resolve issues 3 and 4 against the Appellant. In conclusion, he urged the Court to dismiss the appeal. On their part, the 2nd – 6th Respondents supported the position of the Appellant in on breath and also concluded that the traditional role of the Respondent is to support judgment of lower Court unless there is a cross-appeal.

In another breath, they are prepared to abide with any decision reached by this Court. RESOLUTION OF ISSUES 3 AND 4 The main thrust of the argument of the Appellant’s learned Counsel is that Exhibit P1 tendered as document of title and Certificate of Occupancy in favour of the 1st Respondent is “a mere certificate of occupancy”.

The Appellant as a follow up submitted in paragraph 5.05 of his Brief of Argument as follows:- “We submit that the 1st – 5th Defendants now 2nd to 6th Respondents having denied issuing Exhibit P1 i.e. the Certificate of Occupancy to the 1st Respondent, the burden was on the 1st Respondent to prove its root of title by leading credible evidence to establish its root of title up to the point of the issuance of the Certificate of Occupancy i.e.

Exhibit P1 by way of tendering its application for land forms, payment of fees, issuance of the Right of Occupancy and complying with the terms and conditions contained in the Right of occupancy before the issuance of the Certificate of Occupancy by the Hon. Minister of the Federal Capital Territory.

These are the conditions precedent for a valid acquisition of land title in the Federal Capital Territory.” This is understandable because the Appellant’s Certificate of Occupancy was issued to him long after the 1st Respondent’s Certificate of Occupancy was issued in 1st Respondent’s favour on 1st November, 1988 while that of the Appellant was issued to him on 8/1/2014, that is 26 years later. It is pertinent to say that the 2nd – 6th Respondents did not plead anywhere that Exhibit P1 was not issued by the Hon. Minister of FCT at the material time.

All they pleaded was that they did not have any Land Registry where the 1st Respondent’s Certificate of Occupancy was registered. ​ The 1st Respondent through his two witnesses tendered Exhibits WS1 (Witness Statement of PW1) through PW1 without objection from the Appellant and 1st and 5th Respondents’ learned Counsel at the lower Court. PW2 tendered: 1. Original Certificate of Occupancy registered at page 74 in Volume 13 (C of O) in the land Administration, Land Registry Office at Abuja. 2.

Original Quit Notice dated 22/11/2013 issued by the Department of Development Control, ABUJA Metropolitan Council on plot no. 864 Asokoro Cadastral AOI as Exhibit P2 and 3. Original Demolition Notice dated 30/01/2014 issued by the office of 2nd, 3rd, 4th and 5th Respondents. All the above documents were tendered by the Plaintiff’s Witness (PW2) without any objection(s) from the 2nd – 6th Respondents and the Appellant’s learned Counsel. All of them are estopped from challenging the authenticity of the 1st Respondent’s Certificate of Occupancy aforesaid.

The 2nd – 6th Respondents and the Appellant denied the issuance and service of Exhibits P2 (Quit Notice) and Exhibit P3 Original Demolition Notice. Their failure to object to them means that those documents emanated from the 2nd – 6th Respondents and they were served or posted on the Plaintiff’s property by the officers of the 2nd – 6th Respondents. They did not deny writing or pasting on the buildings on the land of 1st Respondent Demolition Notice No. “DC DEMOLITION 30.1.14”.

The 2nd, 3rd, 4th, 5th and 6th Respondents did not also deny posting DEMOLITION NOTICE NO. 3352 on the properties of the Plaintiff/1st Respondent on the land in dispute. The Appellant and the 2nd – 6th Respondents did not show DW1 any of the Exhibits P2 and PW3 and so there was no denial that Exhibits P2 and PW3 emanated from 2nd – 6th Respondents howbeit illegally. They (2nd – 6th Appellants) did not plead any discernible fraud or illegality of Exhibit P1. Exhibit P1 enjoys the presumption of regularity and genuiness. It is presumed to have been validly issued and that it is genuine.

See Section 168(1), (2) and (3) of the Evidence Act which reads:- “168.(1) When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. (2) When it is shown that a person acted in a public capacity,” it is presumed that he had been duly appointed and was entitled so to act. (3) When a person in possession of any property is shown to be entitled to the beneficial ownership of it, there is a presumption that every instrument has been executed which it was the legal duly of his trustees to execute in order to perfect his title.” The learned trial Judge was perfectly entitled to rely on Exhibit P1, the 1st Respondent’s Certificate of Occupancy to find in his favour that the land in dispute is the bona fide property of the 1st Respondent.

See: 1. CHIEF BRUNO ETIM & ORS V CHIEF OKON UDO EKPE & ANOR (1983) 3 SC 12 AT 36-38 per ANIAGOLU, JSC who said:- “It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence.

Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence. See CHUKWURA AWNNE v. MATTHIAS EKWUNO (1952)14 W.A.C.A. 59), the document will be admitted in evidence and the opposing-party cannot afterwards be heard to complain about its admission (see ALADE V.

OLUKADE (1976)2 S.C. 183 at 188-9; for criminal trials – see: R. v. HAMMOND (1941)3 All E.R. 318; R. v. PATEL (1951 All E.R.29). Such exceptions would, among others, include an (i) unregistered instrument required by law to be registered (See ABDALLAH JAMAL v. NAMIH SAIDI and Anor (1933) 11 N.L.B. 86, ELKALI and Anor v. FAWAZ (1940) 6 W.A.C.A. 212, IDOWU ALASHE and Others v ILU and Ors (1965) N.M.L.R. 66); (ii) unsigned deed of grant (or copy or copy of copy thereof) (ABDUL HAMID OJO v.

PRIMATE ADEJOBI and Others (1978) 3 S.C. 65; (iii) unstamped instrument or document requiring to be stamped, unless it may legally be stamped after execution and the duty and penalties are paid (See ROUTLEDGE v. MCKAY (1954) 1 ALL E.R. 655 at 856; 1 W.L.R 615 at 617). The contention as to the admissibility of those exhibits to which objection was not raised is clearly misconceived and entirely without substance.” 2. JOSEPH ISHOLA-WILLIAMS V T. A.

HAMMOND PROJECTS LTD (1988) LPELR – 1551 (SC) PAGE 1 AT 29 D – F per AGBAJE, JSC who said:- “In proof of the breach of this covenant the plaintiff relied exclusively on Exh. C-C4. It is my view that once these documents have been tendered and admitted in evidence without any objection they can be used for all legitimate purposes. The defendant for its part in resistance to the case against it put in evidence some documents. These documents too once they have been admitted in evidence could be used for all legitimate purposes. See Sodimu v. Nigerian Ports Authority (1975) 1 All N.L.R.

Part 1 p. 153 at 160-161.” On whether the 1st Respondent needed to produce documents to show how he applied for allocation of the land in dispute from the Minister of FCT and that necessary fess or monies were paid before certificate of occupancy was issued to him, these are the pleaded case of the Appellant and the 2nd – 6th Respondents.

They have the onus to prove their assertions. ​ Where a party tenders a document especially public document like Exhibit P1 and the adversary as in this case the 2nd – 6th Respondents and the Appellant did not plead any fact to impeach the document at the trial or even before the trial such a document remains impeccable and valuable for all time and the trial Court will be entitled to accord the document precisely Exhibit P1 in this case has probative value as the lower Court had done in this case.

The 2nd – 6th Respondents are estopped from claiming that the document, they 2nd – 6th Respondents, issued in favour of the 1st Respondent is invalid or that it did not fulfill conditions precedent. The document Exhibit P1 cannot in the circumstance lose its efficacy and validity. The Appellant and the 2nd – 6th Respondents are caught in the web of issue estoppel enacted in Section 169 of the Evidence Act which says: “169.

When one person has, either by virtue of an existing Court judgment, deed or agreement or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person ‘s representative in interest, to deny the truth of that thing.” The right to query the validity of Exhibit P1 has long been lost and waived by the 2nd – 6th Respondents to this appeal.

That been the case the 2nd – 6th Respondents had nothing left to transfer or convey in form of Right of Occupancy in favour of the Appellant. See HAJIA YUNUSA BAKARI V DEACONNESS (MRS) FELICIA OGUNDIPE & ORS (2021) 5 NWLR (PART 1768) 1 AT 68 F – H TO 69 A per EKO, JSC who said:- “In the instant case, the point of the statement of claim being defective, having been settled by an unknown proxy of Chief A. S. Awomolo, SAN, is being raised for the first time in this second tier appeal.

The appellant, on this issue, is caught by the doctrine of estoppel by conduct, which in Section 169 of the Evidence Act, 2011 is provided thus – When one person has, either by virtue of an existing Court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceeding between himself and such person or such person’s representative in interest, to deny the truth of that thing.

I should think it is now inequitable and unjust to the plaintiff/1st respondent for this Court to accede to this belated objection; the appellant having waived his right of timeous objection to the irregular statement of claim. Delay defeats equity.” The Appellant will have to sink or swim with the position of the 2nd – 6th Respondents.

The lower Court found against the 2nd – 6th Respondents on pages 185 – 186 as follows:- “In other words, by purporting that Plot 864 was revoked on 5/10/2005, as stated in the faced of Exhibit P3, the 1st – 5th Defendants by implication had admitted that prior to the purported revocation, there existed a valid title over Plot 864 in favour of the Plaintiff. But then, having failed to establish either through their pleadings or at the trial that any such revocation was lawfully carried out, it is proper to accept the testimony of the PW2 that no such revocation ever took place. I so hold.

Now, the 6th Defendant, in his defence had gone ahead to tender a gamut of documents, including a Certificate of Occupancy Exhibit D6. Purportedly issued to him with respect to the same Plot 864, by the 1st Defendant on 31st January, 2014, to show that he was validly granted the same plot by the 1st Defendant. It is very crucial, first of all, to remark that the Defendants have not filed any counter-claim against the Plaintiff, as such the Court cannot make any positive declarations in their favour as far as the plot in dispute is concerned.

The present action must strictly be determined principally on the issue as to whether or not the Plaintiff has proved that he is the rightful holder of tile to Plot 864 and not whether the plot was rightly granted to the 6th Defendant.

The only fact that could defeat the claim of the Plaintiff is where the Defendants are able to establish that prior to 26th October, 1988, the date when the 1st Defendant issued the Certificate of Occupancy, Exhibit P1, in the Plaintiff’s favour, as clearly established by evidence, there had existed a prior third party legal interest on the same plot in favour of the 6th Defendant or anyone else for that matter.

In other words, the 6th Defendant cannot rely on Certificate of Occupancy purportedly granted in his favour on 31st January, 2014 by the same 1st Defendant over the same Plot 864, to defeat the existing and subsisting Certificate of Occupancy granted to the Plaintiff on 26th October, 1988. It is as simple and clear as that.

The implication therefore is that the grant subsequently made to the 6th Defendant with respect to Plot 864 by the 1st Defendant, was so mode in violation of the provision of Section 28 of the Land Use Act and as such is null and void ab initio and conferred no title to the 6th Defendant as it purportedly did. The applicable maxims here are – qui prior est tempore potior est jure – meaning that he who is earlier in time is stronger in low and the maxim – nemo dat quad non habet – which means that no one can give that which he does not have. See Ilona vs.

Dakwo (supra).” The lower Court cannot be faulted. The Certificate of Occupancy issued in Appellant’s favour is null and void because as at the time the 2nd – 6th Respondents allocated the land in dispute to the Appellant, the Right of Occupancy they (2nd – 6th Respondents) particularly the 2nd Respondent, had no scintilla of interest, legal or equitable in the said plot of land, subject matter of this action to vest or transfer to the Appellant because the Certificate of Occupancy, Exhibit P1 issued in favour of the 1st Respondent was still valid and subsiding.

It is still valid and the land belongs to the 1st Respondent. See:- 1. NAPOLEON S. ORIANZI VS THE ATTORNEY-GENERAL, RIVERS STATE & ORS (2017) 6 NWLR (PART 1561) 224 AT 273 C – H per GALINJE, JSC who said:- “In Olukoya v. Ashiru (2006) All FWLR (Pt. 322) 1479 at 1514 paras. E-H; (2006) 11 NWLR (Pt. 990) 1, this Court held that an equitable owner in possession cannot be overridden by a subsequent grantee of a legal estate. This is what my brother, Ogbuagu, JSC, 38, paras.

F-H who read the lead judgment said: “As rightly submitted in the respondent’s brief at page 8, the Jalingo Local Government having lawfully granted the land in dispute to the respondent, in 1981, it was left with nothing to grant to the appellant subsequently in 1983 during the subsistence of the grant to the respondent… so that, if there is proof that money was paid for the land coupled with an entry into possession it is sufficient, to defeat the title of a subsequent purchaser of the legal estate, if and provided that the possession, is continuously maintained … Thus, if even it is coupled with possession, it cannot be overridden by a legal estate.” See Ogbu & 4 Ors v.

Ani & 4 Ors (1994) 78 SCNJ (Pt. 11) 363; (1994) 7 NWLR (Pt. 335) 128, Soremekun v. Shodipo (1959) LPELR 30, Orasanmi v. Idowu (1959) 4 FSC 40; (1959) SCNLR 97, Oshodi v. Balogun & Ors. (1934) 4 WACA 1. Clearly, the right of occupancy available to the appellant over the disputed property was not automatically extinguished by Section 5(2) of the Land Use Act by the purported sale and subsequent grant of a statutory right of occupancy over the same property to the 3rd and 4th respondents. To allow such an injustice, is to allow those in authority to benefit from their wrong actions.

Rivers State Government cannot determine a contract in which it is a party and then take certain benefit arising therefrom leaving the party aggrieved without any remedy.” At page 284 C – G AUGIE, JSC said as follows:- “In Tewogbade v. Obadina (1994) 4 NWLR (Pt. 338) 326 at Pp. 347-348 paras.

H-A this Court per Iguh, JSC, hit the nail right on the head, as follows- “Where two contesting parties trace their title in respect of the same piece of land to the same grantor, the applicable principle of law has always been that the latter in time of the two parties to obtain the grant cannot maintain an action against the party who first obtained a valid grant of the land from such a common grantor.

The reason is obvious as a grantor having successfully divested himself of his title in respect of the disputed piece or parcel of land by the first grant would have nothing left to convey to a subsequent purchaser under the elementary principle of nemo dat quod non habet as no one may convey what no longer belongs to him.” 2. ALHAJI A. M. KOLO V. ALH. M.

LAWAN (2018) 13 NWLR (PART 1637) 495 at 516 E – H to 517 A – C per ARIWOOLA JSC who said: “The law is that the plaintiff in an action for declaration of title is required to satisfy the Court by credible evidence but not by admission in the pleadings of the defendant, of his right to the declaration he claims. See Bello v. Eweka (1981) 1 SC 101. The reason being that the grant of a declaration by the Court is discretionary. See Kodilinye v. Odu 2 WACA 336, Akinola & Ors v. Oluwo & Ors (1962) WNLR 135; (1962) 1 SCNLR 352, Sunday Temile & Ors v.

Jemide Awani (2001) 9 SCM 160 at 165; (2001) 12 NWLR (Pt. 728) 726. It is the appellant who relied on the Certificate of Occupancy (Exhibit C) granted to him by the Borno State Government in 1996 that needed to have provided credible evidence to prove his said title on the Certificate of Occupancy. Generally, a Certificate of Occupancy properly issued to a holder presupposes that the holder is the owner – in exclusive possession of the land it relates to.

The said certificate also raises the rebuttable presumption that at the time of its issuance, there was not in existence, a customary owner whose title has not been revoked. In which case, where it is proved by evidence that someone else has a better title to the said land before the issuance of the certificate of occupancy, the said certificate becomes void and shall be liable to be revoked. See Grace Madu v Dr. Betram Madu (2008) 6 NWLR (Pt.1083) 296; (2008) 2-3 SC (Pt.11) 109; (2008) LPELR – 1806 SC.

In the instant case, the only root of the title upon which the appellant based his claim to ownership of the land in dispute is the grant by the Borno State Government, which gave him a Certificate of Occupancy. Whereas, there was in existence a prior purchase by the respondent. It is a misconception to say the least, for the appellant to contend that the respondent ought to have tendered his documents as evidence of purchase of the land after he had called his vendor who gave uncontroverted and credible evidence of his root of title and sale to the respondent.

In otherworld, there is ample evidence that DW1 the vendor to the respondent, had customary right of occupancy, which, before the coming into force of the Land Use Act in 1978, he had passed on to the respondent legally. The subsequent right of occupancy purportedly granted by the State Government to the applicant will be void not having caused a revocation of the originally deemed grant.

Otherwise, the subsequent grant will be in breach of the provisions of the Land Use Act and shall be liable to be declared void.” (Underlined mine) Again, I must say that the case of the Appellant is also made worse by the 2nd – 6th Respondents who did not appeal all the damnifying findings the lower Court made against them.

They are deemed to have admitted that the title of the Plaintiff to the land in dispute and the Certificate of Occupancy issued in favour of the 1st Respondent since 1988 remains valid and subsisting and thus the 2nd – 6th Respondents’ purported revocation of the right of occupancy held over the land by the Respondent is invalid, null and void. The said 2nd – 6th Respondents are deemed to have admitted in toto the findings of the lower Court against them. See 1. APC V HON. D. I.

KARFI & ORS (2018) 6 NWLR (PT. 1616) 479 AT 519 H per EKO, JSC who said:- “On 11th March, 2015, the three appellants herein lodged their appeal to the Court of Appeal (the lower Court) challenging the decision of the Federal High Court. (NEC, in spite of the orders of the Federal High Court directing it not to recognize or otherwise deal with the candidate of the APC, 1st appellant, in the general election and/or placing the 3rd appellant or any other candidate of the APC on the ballot in consequence of the inconclusive primary election of 2nd December, 2014, did not appeal the decision of the Federal High Court.

I need only re-state or emphasize the trite principle of law that decisions of Court not appealed against remain valid, binding, subsisting and taken as acceptable between the parties until the decision is set aside. See Akere v. Governor, Oyo State (2012) 50 11 NSCQR 345 at 414 – 415; (2012) 12 NWLR (Pt. 1314) 240; LSDPC v. Purification Tech. Ltd. (2012) 52 r NSCQR 274 at 309.” 2.

MRS AISHA ABDURAHAMAN & ANOR VS MRS SHADE THOMAS (2019) 12 NWLR (PART 1685) 107 AT 124H TO 125 A – C per EKO, JSC who said:- “Neither in the notice of appeal nor in their brief did the appellants make any, attempt, albeit feeble, to attack the foregoing decision, that crucially was fatal to their case. The law, as re-stated by Musdapher, JSC, in Jimoh Michael v.

The State (2008) LPELR-1874 (SC) AT page 7; (2008) 13 NWLR (Pt. 1104) 361, is that where there is an appeal on some points only in a decision, the appeal stands or falls on those points appealed against only, while the other points or decision not appealed remain unchallenged. Such point or decision unchallenged is taken as acceptable to the parties, particularly the appellant. In other words, a finding or decision of the Court below not challenged on appeal must not, rightly or wrongly be disturbed by the appellate Court. See Oshodi v.

Eyifunmi ​(2000) LPELR – 2805 (SC); (2000) 13 NWLR (Pt. 684) 298, Nwabueze v. Okoye (1988) 2 NWLR (Pt. 91) 664. And as I stated elsewhere: a party to the proceeding who does not appeal a particular adverse finding or decision, or who takes no steps to have it reviewed is deemed to accept the verdict against him. See Ezerioha & Ors v. Ihezuo (2009) LPELR-4122 (CA).

A finding of fact or point in a decision not appealed persists and remains binding on the parties to the suit.” All the said findings against the 2nd – 6th Respondents and Appellant are consistent with the evidence on record and militate greatly against the appeal of the Appellant. It is also on record that the 2nd – 6th Respondents were running with the hare and hunting with the hounds. Instead of playing the traditional role of a Respondent to support the judgment of the lower Court they played the ostrich in their Brief of Argument.

In the said Brief of Argument, they are in one breath supporting the case of the Appellant and ended by submitting as follows:- “4.37 We commend to your Lordships Exhibit P1 and submit that the 1st Respondent did not comply with the conditions for the grant of the certificate of occupancy as the 1st Respondent failed to even produce any application for building plan, approval or even an approved building plan and as such any structure on the illegal.

See Section 7 of the Federal Capital Territory Act and the relevant sections of the Urban and Regional Planning Act. 4.38.1 Finally, may we seek the leave of my noble Lords to submit that we are aware of the position of the law that the primary duty of the Respondents on appeal is to defend the judgment of the Court which is challenged and that a respondent who seeks either the setting-aside of the finding of the lower Court or the complete reversal of the finding by an appellate Court can only do so through a substantive cross-appeal. See FIICHARLES ORGAN & 14 ORS V.

NIGERIAN LIQUEFIED NATURAL GAS LIMITED & ANOR (2014) ALL FWLR (PART 723) PAGE 1851-1852 PARAS H AND A-G, JENKINS GIANE DUVIE GWEDE V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2015) ALL FWLR (PART 767) 644-645 A-H & A-C COMRADE ABDULLAHI MOHAMMED TANKO V. BARR. M. A. ABUBAKAR & 2 ORS (2019) 1 NWLR (PART 1653) 289 – 290 G – B PER M.

D. 4.39 The 2nd – 6th Respondents have thus taken the hint of the Court and have proceeded accordingly. 5.0 CONCLUSION 5.1 Based on the foregoing position of the law, we hereby urge my noble Lords to do justice to this appeal as the 2nd – 6th Respondents ready to abide by the decision of the Court in relation to the issues submitted in this appeal. My Lords, we are grateful.” The 2nd – 6th Respondents it must be noted did not file Notice of Cross-Appeal or an appeal or Respondents’ Notice in this appeal.

They (2nd-6th Respondents) cannot be allowed to take diametrically opposed position in this appeal. The Brief of Argument filed by the 2nd – 6th Respondents on 11/10/2019 and deemed filed on 11/10/2021 ought to be struck out and the same is hereby struck out as having been filed in breach of the Court of Appeal Rules and settled position of the law as acknowledged by the 2nd – 6th Respondents. See the case of: 1.

HAJIA YINUSA BAKARI V DEACONESS (MRS) FELICIA OGUNDIPE & ORS (2021) 5 NWLR (PART 1768) 1 AT 34 C- H per RHODES-VIVOUR, JSC who said:- “At the hearing of the appeal on 16 December, 2019, the appellant was absent and unrepresented. His brief was taken as adopted. D. Anieh, Esq., now appeared for the 2nd and 3rd respondents. He conceded that his brief was irregular. Learned counsel for the 3rd respondent now E. Fatogun, Esq., adopted the 1st respondent’s brief filed on 28 June, 2018.

He urged the Court to strike out the joint brief of the 2nd and 3rd respondents since the argument in the brief does not support the judgment of the trial Court. He further urged the Court to dismiss the appeal. A respondent’s role in an appeal is to defend the judgment on appeal, and not attack it. On the other hand, it is the duty of the appellant to attack the judgment. After all he filed the appeal because he believes it is wrong. If a respondent is not satisfied with the judgment on appeal he should file a cross appeal or respondents’ notice. See New Nig. Bank Plc v.

Egun (2001) 7 NWLR (Pt. 711) p.1, Ibe v. Onuorah (1999) 14 NWLR (Pt.638) p.340. It must be noted, though that a cross-appeal and a respondents’ notice cannot co-exist. When this appeal was heard on 16 December, 2019 learned counsel for the 2nd and 3rd respondents, D. Ameh informed the Court that his brief was irregular. He did not say how his brief was irregular. Rather than defend the judgment of the Court of Appeal, the 2nd and 3rd respondents filed a joint brief attacking the judgment.

In their conclusion, they pray this Court to set aside the judgment of the Court of Appeal and in its place restore the judgment of the trial Court dismissing the claims of the 1st respondent. Their role is fundamentally wrong. Their prayer ought to be for this Court to dismiss the appeal. Since the 2nd and 3rd respondents abandoned their role as respondents their joint brief would not be considered. It is hereby struck out.” In the result, issue 3 is resolved against the Appellant.

On issue 4 which relates to whether the award of N40,000,000.00 in favour of the 1st Respondent against the Appellant and 2nd – 6th Respondents was not excessive, perverse and contrary to all know legal principles of law having regard to the pleadings. It is settled that the guiding principle of law is that award of damages is to provide restitution to a Plaintiff where it is established that the wilful or negligent act of the Defendant has caused damages to the Plaintiff. It is designed to assuage the loss occasioned by the Defendant’s tortuous act.

It is for the purpose and the position of the law that the Defendant was compensated for the damages and loss caused to the Plaintiff by the award of N40,000,000.00. The Appellate Court will not interfere with award of damages imposed upon a defendant by the lower Court except in the circumstances explained and laid down by the apex Court in numerous cases. The circumstances are: 1. Where the Court acted under wrong principles of law. 2. Where the Court acted in disregard of applicable principles of law. 3. Where the Court acted in the misapprehension of facts. 4.

Where the Court took into consideration irrelevant matters and disregarded relevant matters while considering its award. 5. Where injustice will result if the Appellate Court does not act. 6. Where the amount awarded is ridiculously low of ridiculously high that it must have been an erroneously estimate of the damages. See: 1. ACB LTD V. APUGO (2001) 5 NWLR (PT. 707) 653; 2. BB APUGO & SONS LTD V. OHMB (2016) LPELR 40598 1 AT 61 – 62; 3. SPDC LTD V. TIEBO (2005) LPELR 3202 – 1 AT 25;

4. ODUWOLE V WEST (2010) LPELR – 2763 1 AT 15. The 1st Respondent as Plaintiff pleaded copiously in paragraphs 12 – 21 of the Statement of Claim the monumental damages caused by the Appellant and 2nd to 6th Respondents when the latter’s officials and agents demolished the 1st Respondent properties recklessly in grave violation of the law without any service of Notice of Revocation of his Right of Occupancy over the land in dispute.

The 1st Respondent pleaded and tendered documents to show how the said officials of 2nd to 6th Respondents wantonly demolished and destroyed the houses/ buildings erected on the land in dispute by 1st Respondent. The 2nd to 6th Respondents and the Appellant did not lead any credible evidence to deny the allegation of the 1st Respondent who tendered Exhibits P2 and P3 issued by the 2nd to 6th Respondents and the fact threat contained in Exhibits P2 and P3 were carried out by the 2nd to 6th Respondents and their agents. They destroyed the Respondent’s properties.

I agree with the lower Court that in the circumstance of this case an award of N40,000,000.00 as general damages and aggravated damages against the Appellant, 2nd to 6th Respondents by the lower Court for trespass and unlawful destruction of the Plaintiff’s/1st Respondent’s houses and other structures on Plot 864 the subject matter of this action is justified. Issue 4 is resolved against the Appellant. Consequently, it is hereby adjudged that the appeal of the Appellants is unmeritorious and the Appellant’s appeal is hereby dismissed. The judgment of the FCT High Court delivered by HON.

JUSTICE O. A. ADENIYI on 4th May, 2016 is HEREBY AFFIRMED. The Appellant shall pay N100,000.00 (One Hundred Thousand Naira) as costs to the 1st Respondent.

HAMMA AKAWU BARKA, J.C.A.: I had the singular honour of being availed a copy of the judgment just read by my learned brother Peter Olabisi Ige JCA, with which I am in full agreement. ​ My learned brother meticulously considered all the issues to my satisfaction leaving no room upon which to say more. I adopt the judgment as mine and accordingly dismiss the appeal for being unmeritorious. The judgment of O.A. Adeniyi J, of the High Court of the Federal Capital Territory Abuja in suit with No. FCT/HC/CV/630/2014 delivered on the 4th day of May, 2016 is hereby affirmed.

Appellant to pay costs of N200,000 to the Respondents. Appeal dismissed.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA. I equally agree with the reasoning and the conclusion that the appeal is unmeritorious and it is accordingly dismissed. I affirm the judgment of the FCT High Court delivered by Hon. Justice O. A Adeniyi on 4th May, 2016. I abide by the orders of my Lord in the lead judgment including order as to costs.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C . (Delivering the Leading Judgment): This is a cross-appeal against the judgment of the Court of Appeal, Lagos Division delivered on 19th July 2004 wherein the Court held that an action commenced in a representative capacity wherein the plaintiffs failed to obtain the leave of Court to sue in that capacity or failed to obtain the authorization of the represented parties, the action enures as it relates to the named initiators alone.

The genesis of the subject matter of this appeal is the rationalization exercise carried out by the appellant between 1996, 1998 and 10th March 2003, purportedly pursuant to a Federal Government directive, which resulted in the redundancy of the 1st-11th Cross-Appellants and over one thousand other staff of the bank, which according to them was in violation of the Appellant’s enabling laws and Articles 4-6 of its staff manual.

Despite representations to various authorities and the setting up of several panels to review the exercise, the exercise was not reversed and the appellant refused to reinstate them.

​Consequently, by an Originating Summons filed on 19th May 2003, the 1st-11th respondents “for themselves and on behalf of the over one thousand staff of the Central Bank of Nigeria (CBN) recently rationalized or relieved of their jobs,” sought the following reliefs against the appellant and the Attorney General of the Federation: “a. A Declaration that the 1st respondent being an autonomous legal body is not subject to the Federal Government control in its affairs with its staffs (sic). b.

A Declaration that the Federal Government Directives to the 1st Respondent to embark on rationalization of its staff is wholly violative of the 1st respondent’s contractual relationship with its staffs (sic). c. A Declaration that the 1st Respondent’s rationalization exercise on the “instigation” and “Directive” of the Federal Government between 1996, 1998 and 10th March 2003 is wholly violative of Chapters 4-6 of the 1st respondent’s staff manual. d.

An Order nullifying the purported rationalization exercise conducted by the 1st respondent on “the directives” of the Federal Government (an interloper) who is neither the employer of the applicants nor privy to the contractual relationship existing between the applicants and the 1st respondent. e. An Order directing the 1st respondent to reinstate the applicants immediately to their respective posts without loss of seniority or benefits.”

The Originating Summons was supported by a 24- paragraph affidavit with several exhibits attached thereto and marked Exhibits A, B, C1-C4, D and E1-E10 respectively. Exhibits E1-E10 are some of the redundancy letters issued to the affected staff. The 1st respondent filed a memorandum of conditional appearance on 30/5/2003 and on 30/6/2003 filed a motion seeking to raise a preliminary objection to the suit and an order dismissing the suit. Both parties filed further processes in support of and in opposition to the application with additional documents exhibited to their respective processes.

The preliminary objection was heard on 15/10/2003. In a considered ruling delivered on 5/11/2003, the application was dismissed. Dissatisfied, the appellant appealed to the Court below. In its judgment delivered on 19/7/2004, the appeal was dismissed with an order that the suit be remitted to the trial Court to be heard on its merit.

​One of the issues raised in the preliminary objection was that the action was incompetent for failure to seek authorization/leave to sue in a representative capacity on behalf of the unnamed parties. As stated earlier in this judgment, the lower Court held, inter alia that the suit was competent only as regards the named parties and that the outcome could not enure in respect of any of the unnamed parties. The cross appellants have filed the instant cross-appeal to challenge this aspect of the judgment. Its notice of cross-appeal filed on 1/3/17 contains a single ground of appeal.

The main appeal filed by the cross respondent was withdrawn and dismissed on 31/1/22.

In respect of the cross-appeal, Dr. Adekunle Ojo, SAN adopted and relied on the Cross Appellants’ brief filed on 30/6/2007 in urging the Court to allow the cross-appeal. He also relied on a list of additional authorities filed on 11/3/2020. OLADIPO TOLANI ESQ. adopted and relied on the Cross Respondent’s brief filed on 6/7/18 in urging the Court to dismiss the cross-appeal.

The cross appellant’s sole issue for determination is: “Whether, given the special circumstances and facts on record and plethora of decisions of this Honourable Court, the named 11 Applicants/Cross appellants’ action for themselves and on behalf of the slightly over 1000 (One Thousand) unnamed Applicants/Cross-Appellants rationalized staff of the 1st Respondent enures only for the eleven named applicants?”

The cross respondent’s single issue is similar to the cross appellants’ issue. It is therefore not necessary to reproduce it here. I shall proceed to determine the appeal on the cross appellants’ issue.

Sole Issue Learned Senior Counsel for the Cross appellants argued that the part to the decision of the lower Court complained of is not in line with consistent authorities of this Court. He submitted that the facts of this case are on all fours with authorities such as Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587, where parties have been allowed to sue in a representative capacity with or without written authorization or leave. He set out the circumstances in which this could occur, to wit: a. The existence of numerous persons to be represented; b.

All the Cross-Appellants have the same interest in the subject matter of the suit; c. All the Cross Appellants have the same grievance; d. The eleven named representatives are part of the whole; and e. The reliefs sought are by their nature beneficial to all the persons being represented.

He submitted that the only burden on a plaintiff suing in a representative capacity is to show that they have a common grievance or common interest and it is not mandatory to obtain their consent. He submitted that the action by 11 persons for themselves and for over 1,000 CBN staff is in line with decisions of this Court wherein it has held that an action taken in a representative capacity is competent in respect of not only those who initiated it but also the unnamed persons represented. That both the named parties and those represented are parties to the action.

See: Mbanefo Vs Molokwu (2014) 6 NWLR (Pt. 1403) 377 @ 425 C-D. He submitted that the Court below failed to consider the affidavit evidence and the exhibits annexed thereto, which, in his opinion, clearly demonstrated the common grievance and common interest of the unnamed parties with the eleven cross appellants. He contended further that there is nowhere in the cross respondent’s affidavits where it alleged that it would be prejudiced in any shape or form by the suit as constituted.

He also observed that by its letter dated 3/12/96, addressed to the Secretary to the Government of the Federation, the Cross respondent in stating its reasons for the rationalization, specifically mentioned the 6th cross-appellant (Mr. N.A. Ogunbuyide) and “over 1,000 others”, which was a clear indication that it recognized the named and unnamed parties as being part of the same group with a common interest/grievance.

He submitted that by the combined provisions of Order 12 Rule 1(1) and (7) of the Federal High Court (Civil Procedure) Rules, 2000, a set of named plaintiffs may institute a suit on behalf of other unnamed plaintiffs in a representative capacity if they all have the same grievance, once the pleadings show a representative capacity, as in the instant case. He referred to Ofia Vs Ejem (2006) 5 SC (Pt. 111) 41; Afolabi vs Adekunle (1983) 8 SC 98; Ayinde Vs Akanji (1988) 1 SC 106.

He noted that the endorsement of the Originating Summons clearly shows that the action was brought in a representative capacity and that the averments in the supporting affidavit are to the effect that the named and unnamed parties all share a common grievance.

Learned senior counsel argued that the finding of the lower Court complained of was based on Order 12 Rule 8 of the Federal High Court (Civil Procedure Rules). He submitted that the interpretation of the rule is inaccurate having regard, not only to the interpretation of similar provisions of the Federal High Court Rules by this Court, but also having regard to the use of the word “may” in the said provision, which is permissive and not mandatory.

He noted that Order 12 Rule 8 of the Federal High Court Rules is in pari materia with Order 13 Rule 14 of the Lagos State High Court (Civil Procedure) Rules 1972, which provision was interpreted in Otapo vs Sunmonu (1987) 5 SC 228, to the effect that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, judgment could be entered for or against the party in that capacity even where an amendment to reflect that capacity had not been applied for and obtained. He also referred to Mbanefo Vs Molokwu (supra) @ 411 G-H.

He argued further that the purport of the decision in Otapo Vs Sunmonu is that the provisions of Order 13 Rule 14 of the Lagos State High Court (Civil Procedure) Rules 2000, are permissive and not mandatory.

Relying on the case of: Bankole Vs Dada (2003) 11 NWLR (Pt. 830) 74, he submitted that obtaining leave to sue in a representative capacity is superfluous, as the duty of the plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim. He referred to: Mozie Vs Mbamalu (2006) 15 NWLR (Pt. 1003) 495 per Tobi, JSC;Jack vs Whyte (2001)3 SC 121.

Learned senior counsel submitted that the authorities of Lawal vs Ariwajoye (2001) 5 NWLR (Pt. 707) 686, Ifekwe vs Madu (2000) 14 NWLR (Pt. 688) and Jack Vs Whyte (supra), relied upon by the lower Court, all support the principle of law enunciated in Otapo Vs Sunmonu (supra) and that the lower Court in line with the principle of stare decisis, ought to have followed those decisions.

On the issue of authorization by the unnamed parties, learned senior counsel referred to Exhibit OA1 attached to the Cross Appellants’ further affidavit at pages 81-82 of the record, which is a letter signed by some officers on behalf of the named and unnamed parties authorizing the named parties to institute the action for themselves and on behalf of all those affected by the rationalization exercise. He noted that neither the cross respondent nor any of the unnamed applicants objected to the letter or challenged its validity.

Conversely, he submitted that by the authority of this Court in Atane & Anor vs Amu (1974) 10 SC 163 @ 168 per Irikefe, JSC, a plaintiff suing in a representative capacity is under no obligation to obtain the consent of others whom he might represent although the position is different in the case of a representative defendant.

Learned counsel submitted further that the cross respondent lacks the locus standi to challenge the authority of the cross appellants to represent those unnamed applicants and that, in any event, having regard to his earlier submissions, the failure to obtain leave/authorization would not vitiate the suit. See: Gov. of Ekiti State Vs Hon. Kola Fakiyesi (2009) LPELR-8353; SPDC Nig. Ltd. vs Edamkue (2009) 14 NWLR (Pt. 1160) 1 @ 27-28 H-E.

He submitted that the unnamed parties in a representative suit have a constitutional right to be heard and urged the Court to protect their right guaranteed by Section 36 of the 1999 Constitution, as amended. See: Otapo Vs Sunmonu (supra).

Learned senior counsel argued that the Court has a duty to do substantial justice and to avoid multiplicity of actions. He submitted that where a party omits to sue in a representative capacity, the Court, suo motu, may order him to amend his processes to reflect that capacity in order to meet the ends of justice. He referred to Bamisile Vs Osasuyi (2007) 9 NWLR (Pt. 1042) 255) (CA), SPDC Nig. Ltd. Vs Edamkue (supra). He urged the Court to resolve the appeal in favour of the cross appellants.

​In response to the above submissions, learned counsel for the cross respondents contended that the Court below was correct when it held that the requirement to obtain authorization or leave before suing in a representative capacity is a condition precedent to the commencement of the action on behalf of the unnamed parties and that the effect of failure to obtain such authorization or leave is that only the named parties (or the initiators) can benefit from whatever decision is reached by the Court.

It was his view that the lower Court applied the correct interpretation to Order 12 Rule 8 of the FHC (Civil Procedure) Rules, 2000.

Learned counsel submitted that apart from the bare averment that they sued in a representative capacity, there was nothing before the Court to show the common denominator in the separate and distinct contracts of employment between the cross appellants and the unnamed parties they purported to represent. He argued that the letters of employment of all the unnamed applicants ought to have been exhibited along with evidence that the named applicants were authorized to sue on their behalf.

He conceded the fact that in Otapo Vs Sunmonu (supra), this Court held that failure to obtain authorization to sue in a representative capacity would not vitiate the action. He however argued that the facts and circumstances of Otapo Vs Sunmonu (supra) are distinguishable from the facts of the instant case because Otapo’s case involved a Chieftaincy dispute pertaining to all the members of a ruling house who had a common interest and that their pleadings and the evidence led demonstrated the common interest and grievance of the named parties and the unnamed parties they represented.

He asserted that the instant case presents a different scenario because there is nothing to show that the parties purportedly being represented actually exist. He noted that the letters of rationalization of the over one thousand staff were not placed before the Court. He submitted that the cases of: Otapo Vs Sunmonu (supra); Afolabi Vs Adekunle (Supra); and Ayinde Vs Akanji (Supra) were all fought on the basis of pleadings and evidence establishing their common interest, while the instant case is bereft of same. He urged the Court to dismiss the cross-appeal.

A representative action is an action brought or defended by a named person or some named persons on behalf of a group of persons who have the same interest or grievance. A judgment given in the matter binds the entire group represented, and not just the persons named on the originating process. The rationale for adopting this approach was stated by this Court in the case of: Atanda Vs Olanrewaju (1988) 4 NWLR (Pt. 89) 394 @ 409-407 G-A, per Oputa, JSC thus: “Our Rules of Court in the various jurisdictions, specifically provided for this.

And it is a salutary and common sense provision for where the parties are very numerous, it will be extremely cumbersome and irritatingly frustrating if everybody interested is made a named party. The Court will find it difficult to come to justice by insisting that everyone interested should be named on the writ as a party. For the sake of convenience, our Courts therefore approve of representative actions.

Thus, given a common interest or a common grievance, a representative action is in order if the relief sought is in its nature beneficial to all whom the named plaintiffs proposed to represent.” As stated in the authority cited above, various jurisdictions have enacted their own rules to accommodate representative actions.

Order 12 Rules 7 and 8 of the Federal High Court (Civil Procedure) Rules, 2000 provide: “Rule 7: (1) If the plaintiff sues, or any defendant counterclaims in any representative capacity, it shall be so expressed on the writ. (2) The Court may order any of the persons represented to be made parties either in lieu of or in addition to the previous existing parties.

Rule 8: Where more persons than one have the same interest in one suit, one or more may, with the approval of the Court, be authorised by the other persons interested to sue or to defend the suit for the benefit of or on behalf all parties so interested.” As rightly submitted by learned counsel for the cross appellants, the fundamental requirements for a suit brought or defended in a representative capacity are: 1) Those represented must have a common interest/common grievance and 2) The relief sought must in its nature be beneficial to all those whom the plaintiff or defendant is representing.

See: Ayinde vs Akanji (1988) 1 SC 106; Ogamioba & Ors Vs Chief Oghene & Ors (1961) 1 ALL NLR 59. It is to be noted that in the provisions of Order 12 Rule 8 reproduced above, the word used is “may,” which suggests that the provisions is permissive and not mandatory. It is a settled principle of interpretation of statues that words must be given their natural and ordinary meaning, unless to do so would lead to absurdity. See:Ibrahim Vs Barde (1996) 9 NWLR (Pt. 474) 513 @ 577 B-C; Ojokolobo Vs Alamu (1987) 3 NWLR (Pt. 61) 377; Agbaje Vs Fashola (2008) ALL FWLR (Pt. 443) 1302.

Learned counsel for the respondent and indeed the Court below gave a strict interpretation to Order 12 Rule 8. By its motion on notice filed on 26/6/2003 for the dismissal or striking out of the suit at the trial Court, one of the grounds for the application was that: “There is neither authorisation nor approval of this Honourable Court to commence the present suit which is purported to be a representative action.”

The 1st defendant (now cross respondent) argued that the plaintiffs (now cross appellants) failed to discharge the burden placed on them by law to show not only that they were authorised by over 1,000 rationalized staff of the bank to institute the action, but also, that they had sought and obtained leave of the Court to sue in that capacity.

Although they were served with a further counter affidavit with an exhibit attached thereto showing such authorisation, the 1st defendant (cross-appellant herein) urged the Court to disregard it, having been filed after the motion challenging the suit was filed and because there was no affidavit by the named plaintiffs stating that they had been so authorised. The trial Court rejected the argument of the 1st defendant and held that the failure to seek authorisation/leave to sue in a representative capacity would not vitiate the action.

It is pertinent to note that the position taken by the 1st defendant/cross-respondent was that the suit was incompetent ab initio for failure to seek authorisation/leave to sue in a representative capacity. The Court below agreed that the suit was not vitiated by the said failure but went on to hold that having failed to obtain authorisation/leave to sue in a representative capacity, only the named plaintiffs would be affected by the eventual outcome of the suit.

In effect, although it held that the suit was competent as far as the named plaintiffs were concerned, it took a hard stance on the failure to obtain authorisation/leave as it relates to the unnamed applicants.

​It has been held by this Court that representative actions are a matter of convenience, to avoid multiplicity of actions and to prevent a situation where a case becomes cumbersome and difficult to adjudicate upon due to the sheer number of parties and voluminous processes that would necessarily be filed. For that reason, the Courts adopt a more flexible approach.

In Otapo Vs Sunmonu (1987) LPELR-2822 (SC) @ 27 – E-F, it was held as follows: “This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity, the trial Court can justifiably enter judgment for or against the party in that capacity.” See also: Jack Vs Whyte (2001) 6 NWLR (Pt. 709) 266 @ 275 D-E; (2001) LPELR-1586 (SC) @ 10-11 E-A, per Uthman Mohammed, JSC, where His Lordship stated thus: “I agree that where a representative order would have been granted had it been asked for, failure to obtain it will not vitiate the action. …it is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of Court before filing his suit.

The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent, this Court does not and will not upset a judgment on a bare objection of failure to obtain the approval of the Court.

See Wiri Vs Wuche & Ors, (1980) 1 SC 1.” (Underlining mine) See also: Busari Vs Oseni (1992) 4 NWLR (Pt. 237) 557 @ 582; Durbar Hotel Plc Vs Ityough (2011) 9 NWLR (Pt. 1251) 41 @ 55 E-H per Okoro, JCA (as he then was). To further buttress the position in Jack Vs Whyte (supra), I refer to the dictum of Ogbuagu, JSC in Salisu & Ors.

Vs Odumade & Ors. (2010) LPELR-2995 (SC); (2010) 6 NWLR (Pt. 1190) 228 @ 241 C-E, to wit: “It is now firmly settled that even the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action… In fact, once pleadings and evidence establish conclusively a representative capacity, a trial Court will be entitled to enter judgment for and against the party in that capacity, even if an amendment to reflect that capacity had not been applied for and obtained.

It will be otherwise if the case is not made out in a representative capacity… a representative action is seen and considered as an action brought by the body of persons represented rather than the named plaintiff only.” (Underlining mine)

In the instant case, the cross appellants sued “for themselves and on behalf of the over one thousand staff of the CBN recently rationalized or relieved of their job.”

Paragraphs 3, 4, 5, 6, 7, 8, 16, 22 and 23 of the affidavit in support of the Originating Summons are instructive as to the common interest and common grievance of the named and unnamed applicants. The applicants averred thus: “3. That the Applicants who are all former staff of the 1st Respondent lost their job through rationalization carried out by the 1st Respondent on the directives of the Federal Government. 4.

That all the Applicants have a common grievance interest and issue, hence we are coming in a representative capacity for and on behalf of the over 1,000 former employees of the 1st Respondent that were sent packing in a swoop. 5. That sometime between 1996 and March 2003, the 1st Respondent embarked upon various rationalization exercises at the instigation and directives of the Federal Government. 6. That this rationalization from 1996-2003 is a continuous process, even till date. 7.

That the Applicants have jointly brought this action because it not only raises a common question of law and/or fact (i.e. Rationalization of the Applicants’ employment in a swoop by the Respondents) but also the question of the exercise (Rationalization) complying with the relevant legislation setting up the 1st Respondent. 8. That the Applicants in coming together to pursue their common claim and grievance will save time and will not in any way prejudice the Respondent. 16.

That the directives by the Federal Government to the 1st Respondent as revealed in Exhibit A above to the effect that the 1st Respondent should embark on rationalization of its staff is strange to the Applicants terms of employment with the 1st Respondent and also strange to the 1st Respondent’s enabling laws, 22. The Honourable Court is therefore called upon to invalidate the said rationalization exercise conducted by the 1st Respondent between 1996-2003 being a violation of the existing laws governing the 1st Respondent. 23.

That the Applicants therefore seek the reversal of the rationalization exercise and plead with the Court to reinstate them with immediate effect without loss of seniority and/or other benefits.”

In paragraph 4 of their further counter affidavit to the 1st defendant/cross respondent’s motion, it was averred: “4. That a further denial of paragraph 8 of the Applicant’s affidavit in support, on the 28/4/2003 majority of members of the rationalized staffers of the 1st respondent appointed the applicants to represent them in this suit. Attached and marked Exhibit OA1 is a copy of the letter to our solicitor to that effect.

Exhibit OA1 is a letter addressed to the applicants’/cross appellants’ solicitor with the heading “Re: Resolution Authorising the Commencement of Legal Action.” It reads as follows: “At the monthly national general meeting of the Central Bank of Nigeria (CBN) workers who were unjustly and prematurely rationalized in 1996 and 1998 on Saturday, April 26th, 2008 at the above address and attended by representatives of the following branches or outstations- Ibadan, Abeokuta, Benin, Ilorin, Jos, Minna, Kaduna, Kano, Enugu, Port-Harcourt, Abuja, Akure and the host branch Lagos, the following resolutions were unanimously made. 1.

That after all pleas from us and some other institutions like the National Assembly, the Nigeria Labour Congress (NLC), the National Union of Bankers and Insurance Employees (NUBIE), some important traditional rulers in the country, the Primate of Nigeria Anglican Communion, Most Rev. Dr. J.P. Akinola, retired Bishop Bolanle Gbonigi and other to the CBN Management appeared to have fallen on deaf ears, you are hereby mandated to immediately commence preparation for the filing of a legal suit on behalf of all of us – the slightly over 1,000 (one thousand) people affected. 2.

That you should ensure that the suit which should be in a representative capacity is filed before the end of May, 2003. 3. That the slightly over 1,000 (one thousand) of us that are affected have nominated and mandated the following 11 (eleven people) to sue on our behalf: 1. Mr. Olasupo Adedeji – National Co-ordinator 2. Mr. Chimezie C Ahaneku – Deputy Co-ordinator 3. Mr. GA, Nnamdi Osaji – Abuja Branch Representative 4. Mr. B.S.C. Igwebuike – Lagos 5. Mr. P.O. Olubowale – Benin Branch Representative 6. Mr. N.A. Ogunbuyide – Abuja Branch 7. Mrs. Pat Ikem – Abuja Branch 8.

Dr. (Miss) Joyce Ukaigwe – Lagos 9. Mr. Wilson Onyefunazua – General Secretary 10. Mr. R.O. Balogun – Lagos 11. Mr. S.E.A. Ahirima – Port Harcourt Branch Representative 4. That we shall fully discharge our obligations as regards the agreement we had earlier reached with you in respect of your legal representation. Signed: OLASUPO ADEDEJI National Co-ordinator/Chairman CHIMEZIE C. AHANEKU Deputy Co-ordinator W. ONYEFUNAZUA General Secretary For and on behalf of all those affected.”

​In my considered view, the title of the suit along with the averments in the supporting affidavit and further counter-affidavit, which, in a suit commenced by Originating Summons, constitutes the evidence in the case, clearly show the representative capacity in which the suit was brought, the common interest and grievance of the named and unnamed applicants and the fact that the reliefs sought will be of benefit to all of them. Thus, on the authorities referred to above, the unnamed applicants would be equally bound by the decision in the case as the named applicants.

The Court below, with respect, therefore erred when it held that the judgment in the suit would enure for the named applicants alone.

Learned counsel for the cross respondent has argued that there is no common interest between the named and unnamed applicants because they have individual contracts of employment with the cross respondent. I respectfully disagree with him. Even though they might have had separate contracts of employment with the cross respondent, it is their contention that the rationalization exercise was done in a blanket manner and across the board and therefore the effect of the exercise on all of them was the same.

Their common grievance/interest is therefore their redundancy and the restoration of their jobs.

It is pertinent to note that since the inception of the suit, there is nothing to show that any of those represented has challenged the authority of the named applicants to represent them. In the case of: Nta Vs Anigbo & Ors.(1972) LPELR-2069 (SC) @ 19-20 C-C, this Court held, inter alia: “If those named care to do so, they may ask for a representation order. If they do not, the Court is entitled to give judgment according to the evidence and the nature of the case.

If there are parties aggrieved at being caught within the case when they were not by name made parties thereto, they have a right to appeal under our Constitution…” The effect of all that I have been saying in the course of this judgment is that having indicated in the title of the suit and its accompanying processes that the action was filed in a representative capacity, any judgment delivered in the suit will enure to both the named and unnamed applicants.

In other words, even though leave to sue in a representative capacity was not obtained, as long as the trial Court is satisfied from the material before it that they sued in that capacity, it would be entitled to enter judgment for or against them in that capacity and the unnamed applicants would be bound by it.

The sole issue in this appeal is accordingly resolved in favour of the cross appellants. The appeal has merit and it is hereby allowed. The parties shall bear their respective costs.​

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Kudirat Kekere-Ekun JSC and to register the support in the reasonings from which the decision emanated, I shall make some comments.

This cross-appeal is against a part of the decision of the Court of Appeal, Lagos Division or Court below or lower Court, Coram: J.O. Ogebe, P.O. Aderemi and M.D. Muhammed JJCA (as they then were). The trial Federal High Court was presided by C.P.N. Senlong J. which delivered on 9th July, 2004 wherein the lower Court dismissed the appeal and remitted same to the trial Court to hear and determine the matter on its merit.

INTRODUCTION The Cross Appellants’ appeal to this Court originated from a suit commenced by way of Originating Summons dated 16th May, 2003 but filed on 19th May 2003. The class action was filed by eleven named Applicants for themselves and in a representative capacity on behalf of over 1000 (one thousand) other rationalised staff of the 1st Respondent/Appellant praying for the following orders: a. A Declaration that the 1st Respondent being an autonomous legal body is not subject to the Federal Government control in its affairs with its staff. b.

A Declaration that the Federal Government directives to the 1st Respondent to embark on rationalization of its staff is wholly violative of the 1st Respondent’s contractual relationship with its staff c. A Declaration that the 1st Respondent rationalization exercise on the instigation and Directive of the Federal Government between 1996, 1998 and 10th of March, 2003 is wholly violative of chapters 4-6 of the 1st Respondent’s Staff Manual d.

AN ORDER nullifying the purported rationalization exercise conducted by the 1st Respondent on the directives of the Federal Government (an interloper) who is neither the employers of the Applicants nor a privy to the contractual relationship existing between the Applicants and the 1st Respondent. e. An Order directing the 1st Respondent to reinstate the Applicants immediately to their respective posts without loss of seniority or benefits.

The Summons was supported by a twenty-four (24) paragraph affidavit deposed to by the 1st Cross-Appellant (Mr. Olasupo Adedeji) with the following documents attached as exhibits: a. 1st Respondent’s letter dated 03/12/1996 to the secretary to the Government of the Federation acknowledging that the 1st Respondent had carried out and/or complied with the Federal Government aforesaid directive on the rationalization Exhibit A b. 1st Respondent’s internal memo dated 10/03/2003 (Exhibit B); c.

Letter dated 22/10/2001 addressed to the Chairman of the Rationalization Staff Review Committee Exhibit C1); d. Letter dated 22/10/2001 by the Secretary-General of the Nigeria Labour Congress to the Government of the 1st Respondent (Exhibit C2); e. Letter dated 02/08/2000 by the deputy Speaker of the House of Representatives (Exhibit C3) f. Letter dated 2/7/2002 by Senator O. Durojaiye to the Governor of the 1st Respondent (Exhibit C4); g. The 1st Respondent’s Staff Manual (Exhibit D) and h. Various letters to the Appellants in respect of the rationalization (Exhibit E1-E10)

​On 30th May, 2003, the 1st Respondent/Appellant filed a memorandum by which she entered conditional appearance in the suit. Subsequently, she brought a Motion dated 25th June 2003 filed on 30th June 2003, by which she sought two orders: (i) leave to raise a preliminary objection to the suit, and (ii) an order dismissing or striking out the suit. The 1st Respondent/Appellant relied on five (5) grounds.

The motion was supported by a sixteen (16) paragraph affidavit (filed on the same 30th June 2003) deposed to by one Christopher Eyisanmi, who at that time was an Assistant Director in the Legal Services Department of the 1st Respondent/Appellant Bank.

In response to the 1st Respondent’s preliminary objection, the cross appellants filed a twelve (12) paragraph counter-affidavit dated and filed on 15th July 2003 deposed to by the same 1st cross-appellant with another annexure attached to it as Exhibit Q.

The 1st Respondent/Appellant Bank filed a Reply to the Counter-Affidavit on the 13th day of October, 2003 and attached eight (8) additional exhibits which comprised letters of Rationalisation issued on the 1st, 4th, 5th, 6th, 7th, 8th, 9th and 11th Appellants (as Exhibits CE1, CE2, CE3, CE4, CE5, CE6, CE7 and CE8 respectively).

​On the 14th day of October 2003, the Plaintiffs/Cross-Appellants filed a further and better affidavit of nine (9) paragraphs dated the same day with the following annexures: a copy of letter of resolution authorising appellants to commence action is a representative capacity dated 28th April 2003 (Exhibit OA1) copy of the letter dated 3/12/1996 from the Director of Personnel of the 1st respondent addressed to the Secretary to the Government of the Federation Exhibit OA and a photocopy of the Vanguard Newspaper of 16th July 1996 – front page (Exhibit OA3)

The application for preliminary objection was heard on 15th October 2003 and the ruling by Justice C.P.N. Senlong was delivered on 5/11/2003. The trial Court ruled on all five grounds against the Defendant/Appellant. Dissatisfied with the ruling of the trial Judge, the 1st Defendant/Appellant appealed to the Court of Appeal on those grounds. In a judgment delivered on 19th July 2004, the Court of Appeal refused all the grounds of the appeal. Dissatisfied with the decision of the Appeal Court, the 1st Respondent/Appellant appealed to this Court by a Notice of Appeal filed on 24/9/2004.

​The Plaintiffs/Cross-Appellant being also dissatisfied with the portion of the decision of the Court of Appeal which held that the case enures only for the benefit of the eleven named plaintiffs has, pursuant to the order of this Court of 15th February 2017, filed this cross-appeal to ventilate their position on that portion of the decision. See pages 198 to 201 of the Records.

STATEMENT OF FACTS The Cross-Appellants were all members of staff of the Central Bank of Nigeria (1st Defendant/Respondent). Between 1996 and 2003 the Federal Government (2nd Respondent) gave various written directives to the 1st Respondent to terminate the appointments of some of its staff, most of whom are the Appellants. In compliance with these directives, the 1st Respondent/AppeIIant terminated the appellants’ appointments – over 1,000 appointments in all.

​In a letter to the 2nd Respondent dated 3rd December, 1996, the 1st Respondent claimed that the reason for laying-off the named Cross-Appellants and over 1,000 unnamed Applicant/Cross-appellants in what it called “rationalization exercise carried out by the Bank in compliance with the Federal Government directives.” The 1st Respondent also claimed that “when the number rationalized did not meet the expectation of Government, the Bank was left with no other alternative other than to invoke the provisions of Chapters 3(ii) and 4(i) of the Staff Manual (Exhibit D)”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Aggrieved by the respondent’s actions, the named Applicant/cross-appellants brought a representative action for themselves and on behalf of the over 1,000 other rationalized staff of the Bank (unnamed Applicant/Cross-appellants) by way of an originating summons, wherein they sought the Court to determine three (3) issues, to wit; a. Whether the 1st Defendant/Respondent (the Central Bank of Nigeria CBN) under its enabling laws i e the CBN Act, Cap 47, LFN, 1990; the CBN Decree of 1991 and the CBN (Amendment) Decree No. 3 of 1997, is an autonomous legal body, and if Yes. b.

Whether the Federal Government is competent to direct the 1st Respondent (CBN) on how to manage its staff affairs? And if the answer is No. c. Whether the rationalization exercise embarked upon by the 1st Respondent (CBN) between 1996, 1998 and 2003 and the review panel’s subsequent recommendations of the 10th March 2003 on the instigation of the Federal Government is not a violation of the contractual relationship between the 1st Respondent (as employers) and the Applicants (the rationalized staff)?

​The Appellant by a preliminary objection dated 25th June 2003 but filed on 30th June 2003 among other grounds challenged the competence of the suit on the basis that there is neither authorization nor approval of the trial Court to commence the suit in a representative capacity amongst other grounds. The application for preliminary objection was heard on 15th October 2003 and the ruling by Justice C.P.N. Senlong was delivered on 5/11/2003.

The trial Court ruled on all five grounds against the 1st defendant/Appellant dissatisfied with the ruling of the trial Judge, the 1st Defendant/Appellant appealed to the Court of Appeal on those grounds. In a judgment delivered on 19th July 2004, the Court of Appeal refused all the grounds of the appeal but held that the suit enures for benefit of only the named eleven Plaintiffs.

Learned counsel for the cross-appellant, Dr. Adekunle Ojo SAN adopted the brief of argument filed on 30/6/201 in which he distilled a single issue for determination, viz: Whether, given the special circumstances and facts on record and plethora of decisions of this honourable Court, the named 11 Applicant/Cross-Appellants’ action for themselves and on behalf of the slightly over 1,000 (one thousand) unnamed Applicants/Cross-Appellants rationalized staff of the 1st Respondent/Appellant enures only for the eleven named applicants?

Learned counsel for the cross-respondent, Oladipo Tolani Esq adopted the brief of argument filed on 6/7/2018 and deemed filed on 8/4/2019 and he has crafted a sole issue thus: Whether this suit inures in favour of only the eleven named plaintiffs (now Cross-Appellants) and not for the benefit of other unnamed persons in the absence of any authorisation and/or leave to sue in a representative capacity (Ground one).

I shall make use of the issue crafted by the cross-respondent as it is simply done.

SOLE ISSUE Whether this suit inures in favour only of the eleven named plaintiffs (now cross appellants) and not for the benefit of other unnamed persons in the absence of any authorization and/or leave to sue in a representative capacity.

​Advancing the position espoused by the cross-appellant, learned Senior Counsel contended that the action by eleven persons for themselves and for over 1,000 CBN staff is in line with the decisions of the Supreme Court which in plethora of cases have held an action taken in a representative capacity is competent in respect of not only its initiates alone because leave and authorization were not obtained by the initiators of the suit.

That from the wordings of Order 12 of the Federal High Court (Civil Procedure) Rules, applicants can sue in a representative capacity hence the action was brought by the eleven named Applicant/cross-appellants for themselves and the over 1000 cross-appellants unnamed is in order. He cited Afolabi v. Adekunle (1983) 8 SC 98 etc.

For the cross-appellant, it was contended that the position taken by the Court below was against the doctrine of stare decisis. He cited Tejumade A. Clement & Ors v Bridget J. Iwuanyanwu anor(1989) 3 NWLR (pt.107) 39 etc.

Learned counsel for the cross-respondent submitted that there is nothing to show that the persons being purportedly represented exist in the first place.

On the capacity of the 11 named appellants to represent the unnamed applicants/cross-appellants, the Court below stated as follows: ‘The fact that the Respondents had not been authorized by such others on whose behalf they also claimed to have taken out the originating summons against the Appellant is beyond dispute. That the trial Court had not granted respondents leave to pursue their claim on behalf of others is a settled fact as well.’

Order 12 Rule 8 of the Federal High Court …Civil Procedure Rules 2000 provides ‘Where more persons than one have the same interest in one suit, one or more of them may with the approval of the Court be authorized by the other persons interested to sue or to defend the suit for the benefit of all the parties so interested’

On the capacity of the 11 named appellants to represent the unnamed applicants/cross appellants, the Court below stated as follow: “The foregoing provision must be given its plain effect. See Odu’a Investment Ltd v. Talabi (1997) 10 NWLR (PT.523)1 SC and O.A.U. Ile Ife v Oliyide & Sons Ltd (2001) 7 NWLR (pt.712) 456.”

By the provision, one or more persons may commence an action for themselves and on behalf of others only if authorized by others and with the leave of the Court. The lower Court in its ruling did ask the pertinent question. ‘Does the lack of the Court’s approval or authorization by person interested in the action render the action incompetent? The Court’s answer in the negative is unassailable, The Court’s further reliance in its interpretative effort on the decisions of the Court in Lawal v. Ariwajoye l (2001)5 NWLR (Pt.707) 686, at 702 and Ifekwe V.

Madu (2000) 14 NWLR (Pt.688) 459 at 472 and the Supreme Court’s decision in Jack v. Whyte (2001) 6 NWLR (Pt.709) 266 at 275 is apposite. In these decisions, the two Courts have held that failure to obtain leave of Court or authorization of others will not vitiate the action. An action so commenced remains competent in respect to its initiates alone.

Because of the leave and authorization which the rule of Court had made a condition precedent to the commencement of the action in a representative capacity which leave and authorization had not been obtained by the initiators of the suit such the Respondents in the instant case, the action endures (sic) as it related to the initiators only, This conclusion resolves Appellants… issue against it but in his favour of the Respondents.” See pages 184 and 185 of the records stated.

The lower Court further held thus: “I agree with learned counsel for cross-appellants that the position of the Court below is unknown to law. It is held per incuriam and no Court of law is bound to follow it. Following such decision cannot be in the interest of the established principle of stare decisis. NGWO & ORS u MONYE & ORS (1970) All N.L.R 94. The cases relied upon by the Court below, to wit, Lawal v. Ariwajoye 1 (2001) 5 NWLR (Pt.707) 686, at 702 and Ifekwe V. Madu (2000) 14 NWLR (Pt.688) 459 at 472 and Supreme Court’s decision in Jack V.

Whyte (2001) 6 NWLR (Pt.709) 266 do not support the decision of the Court below that when leave of the Court is not obtained in a representative action enures only for the benefit of the named parties.”

It is noted that the observation of the lower Court was not canvassed by any of the parties and contrasts with the conclusion the same Court reached when it resolved the issue of misjoinder of the parties in favour of the cross-appellants.

Again to be said is that the decision of the Court below negates the oft cited case of Otapo v Sunmonu (1987) 2 NWLR (pt.58) 587 which judicial authority has been followed in a long line of other decisions of the Court of Appeal and Supreme Court.

To be clear, the facts and circumstances of this appeal are on all fours with the cases where parties are allowed by law to sue, in a representative capacity with or without leave and written authorisation for the following reasons: a. There are numerous persons on the side to be presented; b. All the Applicant/Cross-Appellants have the same interest in the suit which interest are joint and several; c. All of the Cross-Appellants have the same grievance; d The eleven named representatives are part of the whole; and e.

The reliefs sought are by their very nature beneficial to all the persons being represented. Taking up an action in a representative capacity has come to stay in our legal lexicon in this part of the clime. A representative action or a class suit/action is a lawsuit where a group of people in similar circumstances or class sues another party.

In such a representative action both the named plaintiff and those represented are parties to the action. ​It follows that the action by eleven persons for themselves and for over 1000 CBN staff is in line with the decisions of the Supreme Court which plethora of cases have held that an action taken in a representative capacity is competent in respect of not only its initiates alone because leave and authorisation were not obtained by the initiators of the suit.

It is a settled position of the law that the only burden cast upon the Plaintiffs in a representative action is to show that they have common interest or a common grievances and such a plaintiff is not bound to obtain the consent of others whom he might claim to represent.

The learned Justices of the Court of Appeal failed to consider the evidence on the records of the Court which showed conspicuously the common interest amongst the Cross-Appellants and the unnamed parties that were in a swoop rationalised by the 1st Respondent, else the Court would have come to a different conclusion.

​The cross-appellants, the named and the unnamed Plaintiffs, who were affected in one swoop, have always acted together in relating with the Appellant and the main grouse, which is common to the represented and the representatives, is that the class rationalisation carried out by the Appellant is illegal and void.

The fact that the Cross-Appellants have common grievances and have all along pursued them together are highlighted in the following ways; i. The Originating Summons and subsequent processes state that the named eleven plaintiffs sue for themselves and on behalf of over 1000 (one thousand staff) of the Central Bank recently rationalized or relieved of their job). ii. Paragraphs 4, 7 and 12 of the Affidavit in support of the Originating Summons dated 19th May 2003 also attest to this. iii. Paragraphs 2 and 4 of the further counter affidavit to 1st Respondent Motion of 25th June 2003 iv.

At pages 12 to 19 of the records is the joint input of the Applicants. v. The Appellant admitted in her letter 3/12/1996 (exhibit ‘A’ of the Originating Summons see pages 8 and 9 of the records) that there was a common grouse in all the cross-appellants, named and unnamed in the letter, the Appellant states: “The reason for the laying off Mr N.A. Ogunbuyide and over 1000 (one thousand) others was subsequent to the staff rationalisation exercise carried out by the Bank in compliance with the Federal Government directive”. vi.

The Cross-Appellants were target of a continuous exercise known as Rationalization exercise’, See the rationalization letters at pages 71-78 of the Record. vii. The rationalization letters exhibited before the trial Court comprised some of the rationalization letters issued to some of the unnamed Applicant/Cross- Appellants. The letters in respect of other unnamed Cross-Appellants such as A.S Sam, S Enwesi, K.A Lawal, S.A Ogun, J.E. Okoguale and G.S.O Ojo were also exhibited. viii.

There was actually a letter dated 28th April 2003 written by the plaintiffs/Cross-Appellants (named and unnamed) authorising the action. The letter was attached to the further counter affidavit filed on 14/10/2003. See pages 81 of the records. The Cross- Appellants are known to the Appellant and they acknowledge the cross-appellants as a group of persons with a common interest. The Appellant/1st Respondent and the 2nd respondent were not in doubt about the number of Plaintiffs and the fact that they are being represented by their named representatives.

In actual fact, the Respondents never at any time during the trial claimed that they would be prejudiced in any form. The records portray the following: a. 1st Respondent’s letter dated December 3rd, 1996 to the 6th Appellant which clearly stated that the reason for its rationalization of Mr. N.A Ogunbuyide (the sixth cross-Appellant) and over 1000 CBN workers (which included the Cross-Appellants) was in compliance with the directive of the Federal Government of Nigeria. See Pages 7 & 8 of the Record of Appeal). b.

Many of the correspondences on records are certain about the plaintiffs both named and unnamed,

A perusal of the wordings of Order 12 of the Federal High Court (Civil Procedure) Rules, applicants can sue in representative capacity hence the action was brought by the eleven named Applicant/Cross-Appellants for themselves and the over 1,000 Cross-Appellants unnamed in order.

The relevant provisions of the Federal High Court (Civil Procedure) Rules to this appeal are: Order 12 Rule 1(1) of Federal High Court Rules which provides : “All persons may be joined in one action as plaintiffs in whom any right or relief (in respect of or arising out of the same transactions or in a series of transactions) is alleged to exist whether jointly, severally or in the alternative, where such persons brought separate actions, any common question of law or fact would arise and judgment may be given for such one or more of the plaintiffs and may be found to be entitled to relief, for such relief and he or they may be entitled to, without any amendment ” Order 12 Rule 7 (1) If the plaintiff sues, or any defendant counter-claims in any representative capacity, it shall be so expressed on the writ. (2) The Court may order any of the persons represented to be made parties in lieu of, or in addition to the previously existing parties.

Order 12 Rule 8 Where more persons than one have same interest in one suit, one or more may, with the approval of the Court, be authorised by the other persons interested to sue or to defend the suit for the benefit of or on behalf of all parties so interested. ​By the combined provisions of Order 12 Rules 1(1) and 7 of the Federal High Court (Civil Procedure) Rules 2000, a set of named plaintiffs are allowed to institute an action for themselves and on behalf of other unnamed Plaintiffs in a representative capacity if all of them have same grievances once pleadings show representative capacity as in this appeal.

See the cases of Ofia v. Ejem (2006)5 SC (Pt. III) 41 (SC), AFOLABI v. ADEKUNLE (1083)8 SC 98. This Court in the case of Ayinde v Akanji (1988)1 S.C 106 Craig J.S.C has listed the fundamental principle which governs suits brought in a representative capacity thus: “In the case of Ogamioba & Ors, Vs. Chief Oghene & Ors (1961)1 All N.L.R 59 the Federal Supreme Court held that the fundamental principle which governs suits brought in a representative capacity is that: 1. Those represented must have a common interest and a common grievance and 2.

The relief sought must in its nature be beneficial to all those whom the plaintiff is representing.”

In my humble view, the cross-appellants herein endorsed the Originating Summons to the effect that they are suing in representative capacity and they also pleaded facts that they have common grievance, which is to challenge the premature mass ‘rationalization exercise’ carried out by the Appellant/1st Respondent on the directive of the 2nd Respondent.

The learned trial Judge and the Court below from all indications decided based on Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2000 that the case of the appellants falls to the benefits of the 11 named plaintiffs because the leave of the trial Court was not first obtained even through the unnamed plaintiffs had authorised the suit as in the case in hand.

In the light of the previous decisions of this Court and interpretation of similar provision in High Court Rules, the interpretations of the Order 12 Rule 8 of the Federal High Court Civil Procedure Rules by the Court below in this matter is erroneous.

Order 12 Rule 8 of the Federal High Court Civil Procedure Rules 2000 having used the word ‘may’ is permissive and not mandatory. Hence it is not a must that the named plaintiffs suing for themselves and unnamed plaintiffs in a Class suit obtain the leave of the Court before suing. The provisions of Order 12 Rule 8 which is the relevant law in this appeal is in pari materia with Order 13 Rule 14 of Lagos State High Court (Civil Procedure) Rules 1972.

It reads:- Where more persons than one have the same interest in one suit, one or more of such persons may with the or approval of the Court, be authorised by the other persons interested to sue or to defend such suit, for the benefit of and on behalf of all parties so interested. The provision of the High Court of Lagos Rules were interpreted in the case of Otapo v Sunmonu (1987) 5 SC 228 as follows: “The pleadings and the proceedings in the trial Court below show that the action was filed and prosecuted to judgment in a representative capacity.

It is true that in keeping with Order 13 Rule 14 that it is more elegant for a plaintiff suing in a representative capacity if he desires leave to sue in that capacity to make an application simpliciter seeking leave to sue in that capacity. Unlike the provision of Order 3 Rule 2(1), the provision of Order 13 Rule 14 is couched not in mandatory but in permissive terms.

Again this Court further held: “This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was fought throughout in that capacity, the trial Court can justifiably enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for the obtained.” It would be otherwise if the case is not made out in a representative capacity. Onwunala Ndidi and Onwunalu v. Osademe (197) 1 ALL NLR 14 at 16.

As judgment in the instant appeal was given in favour of the plaintiff by the trial Court, in a representative capacity, it is for the benefit of not only the plaintiff, Alhaji Chief Yekini Otapo alone but also for all represented parties.” This Court in the same case of Otapo v Summonu (supra) per Uwais, JSC as he then was further held: “In the instant case, the action was described in the writ of summons as having been brought in a representative capacity.

I have also pointed out that averments in paragraph 1 of the amended Statement of claim that Plaintiff brought the action in a representative capacity. The writ of summons complied with Order 3 Rule 2(1) of the High Court of Lagos State. The trial Judge was right therefore regarding the action which was brought and fought throughout in a representative capacity as a representative action – See Lediju v. Odulaja 17 NLR.15 Afolabi v. Adekunle (1983) 8 S.C 98 Dokubo V. Bob-Manuel (1967) 1 All NLR.113 Ayeni v. Sowemimo ​ (1982) 5 SC 60”.

The Supreme Court in the same Otapo v Summonu held further thus: “The West African Court of Appeal in Divisional Chief Gbogbonolulu v. Head Chief Hodo (1941) 7 WACA 164 held that it is the duty of the Courts to aim at doing substantial justice and therefore where necessary to make any formal amendment to reflect the capacity in which parties sue. This Court has in many cases decided that it will not disturb the capacity in which parties sued or are sued even where they failed to obtain an order of the Court enabling them sue or defend in that capacity; Afolabi v.

Adekunle (1983)2 SCNLR 141 and 154. Significantly the learned Justices in Otapo v Sunmonu were emphatic that the benefit of the suit enures for all the parties both named and unnamed.

The Court held: “As judgment in the instant appeal was given in favour of the plaintiff by the trial Court, in a representative capacity, it is for the benefit of not only the Plaintiff, Alhaji Chief Yekini Otapo alone but also for all represented parties.” ​The Court of Appeal while interpreting provisions of Order IV Rule 3 of the High Court Rules, Cap 61, Laws of Eastern Nigeria, 1963 which is also impari materia with Order 12 Rules 8 of the Federal High Court (Civil Procedures) Rules 2000 in the case of Egom vs.

Eno (2008) 11 NWLR (Pt.1098) page 320 held that it is not mandatory for the named plaintiffs to obtain the leave of the Court before signing for the unnamed plaintiffs and that a case so instituted is for the benefit of all. ​Clearly, the case of Otapo v Sunmonu (Supra) seemed to have had the present situation in mind as the decision therein has settled the current dispute.

Stated another way and for further elucidation, in the case of Otapo v Sunmonu (Supra), notwithstanding that the plaintiff failed to obtain the leave of the High Court to initiate the case in a representative capacity the Supreme Court held that the benefits enured for both the named plaintiff and the unnamed plaintiffs. In essence, the Court held that the provision of Order 13 Rules 14 of the Lagos State High Court (Civil Procedure) Rules (which is impari-materia with Order 12 Rule 8 of the Federal High Court Civil procedure Rules 2000) is permissive and not mandatory.

This Court had gone straight to the point was and still motivated by the desire to do substantial justice and avoid causing injustice or miscarriage of justice. See also the cases of Ifekwe v. Madu (2000)14 NWLR (Pt.688) 459; Awudu v. Daniel (2005) 2 NWLR (Pt.909)199; Salisu v. Odumade (2010) 6 NWLR (Pt.1190) 228 S.C and Ibezim v Ndulue (1992) 1, NWLR (Pt.216) Pg.173. The fact of the matter is that, in this instance obtaining the leave of Court to sue in representative capacity is a surplusage and superfluous.

On whether leave of Court is required where a plaintiff institutes action in a representative capacity, see the Court of Appeal decision per Hon. Justice Onalaja J.C.A in the case of Bankole V. Dada (2003)11 NWLR (Pt.830)174. On representative action at page 135 COMMENTARIES FROM THE BENCH PART II on the topic PARTIES TO CIVIL ACTION by ONALAJA, JCA it was stated as follows:-

“Where a plaintiff or plaintiffs institute an action in a representative capacity, there is the school of thought that the leave of the Court is required. With respect, I consider the leave superfluous, the duty of such plaintiff is to describe his capacity in the writ and to plead that capacity as a material fact in the statement of claim.

But where the plaintiff requires that the action be binding on the defendant in a representative capacity then the leave of the Court is required to sue the defendant in a representative capacity, This without prejudice to the fact the capacity still has to be pleaded in statement of claim”. The same Court in MR. ISRAEL IDOWU & ORS v.

THE REGISTERED TRUSTEES OF ONA IWA MIMO CHERUBIM AND SERAPHIM CHURCH OF NIGERIA AND OVERSEAS: (2012) LPELR-7865(CA) stated the following observation: “Representative actions may be accommodated without obtaining an order of Court for bringing the action in a representative capacity. Once an action is constituted in such a manner, the option is to amend the proceedings to reflect the representative capacity or to allow the action to survive in a representative capacity, not to strike out or dismiss the action.

See OGBOOGBOLU VS HODO (1941) 7 W.A.C.A. at 164 in effect, the issue of whether an action is brought in a representative capacity should not be rigidly enforced by the Court.” And this Court in a similar way held in the case of Mozie v Mbamalu 2006 15 NWLR (Pt. 1003) pg. 495 per Tobi, J.S.C. that: “The decision of this Court in Wiri v. Wuche (1980) 1-2 SC 1 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 vitiate the proceedings.” Contrary to the position of the Court below, this Court in the case of Jack v.

Whyte (2001)3 S.C 121 this Court held as follows: “Learned counsel for the respondents, Okocha, SAN, quite helpfully conceded that the Court of Appeal perhaps by an inadvertent slip or mistake, did not take notice of the order made by Opene J (as he then was) that the defendants/appellants be sued in a representative capacity.

The senior advocate went further and submitted that it was settled law that failure to obtain leave to sue in a representative capacity was not fatal to and would not vitiate the validity of the action, Where there was no objection to the capacity in which plaintiff sued and in which the defendant was sued and the suit was prosecuted in that capacity to judgment, or was capable of being so easily understood it will be presumed that leave to sue in such representative capacity was granted Mr.

Okocha, SAN, referred to Order IV Rule 1 High Court Rules Cap 61 Laws of Eastern Nigeria and Order II Rule 7 (I) Rules of the High Court of Rivers State. See also Chief P.O. Anatogu & Ors v. Attorney General, East Central State & Ors (1976) 11 SC 109 and Joseph Afolabi and Ors v. John Adekunle & 1 Other, (1983)2 SCNLR 141 (198.3) 8 S.C. I agree that where a representative order would have been granted had it been asked for failure to obtain it will not vitiate the action. See Bulai v. Omoyajowo (1968) 1 All NLR 72.

It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of Court before filing his suit The attitude this Court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent, this Court does not and will not upset on a bare objection of failure to obtain the approval of the Court. See Wiri and Ors. v.

Wuche and Ors. (1980) 12 SC 1” This Court reiterated the same position in the case of Mbanefo v Molokwu (2014) 1-2 SC (Pt.11) 137 per Peter-Odili, J.S.C held thus: “Therefore the Agbalanze was bound upon the action as mouthed by the first respondent as he was representing the society. He was not acting on his own and the situation is not changed because no leave was sought and obtained before such a representation was made”.

Clearly, the Court below followed the wrong path hence the ensuing erroneous conclusion which is not supported by the well established decisions of this Court in the guiding light of what should obtain when a Court is faced with a scenario akin to the present. ​A step back in time into the record shows that the cross-appellant attached to one of their affidavits a letter tagged ‘authorization letter’ dated 28/4/2003 which was duly signed by the officers of the named and the unnamed cross-appellants.

The letter is a clear mandate issued on the eleven named plaintiffs to represent the unnamed plaintiffs. The letter was established on the Affidavit dated 14/10/2003. Significant, is the fact that neither the Appellant/1st respondent nor any of the unnamed plaintiffs objected to the said letter or challenged its validity at the lower Court as to substance or form. It even needs to be stated that the aforementioned letter or other evidence are clear indications that the action was a representative suit even though such written authorization is not required as an oral authorization suffices.

In emphasis, the class suit or representative action by its very nature permits any member of the group individually, unchosen and masked and without any organisation of the close or prior consent of others, to step forward and sue on behalf of all, in the sense that if he is successful all may participate in the result. This Court stated it as it really is in the case of Atane & Anor v.

Amu (1974) 10 SC 163 at page 168 where Irikefe, JSC (and he then was) stated thus: “We are equally satisfied that in a representative action such as this, the only legal burden cast upon a plaintiff is that of establishing the existence of a common interest and a common grievance. Such a plaintiff in fact not bound to obtain the consent of others whom he rightly represents.

The position is otherwise in the case of a representative defendant” Again brought to the fore is the fact that the appellant/1st Respondent has no locus to challenge the authority of the 11 named cross-appellant/plaintiffs to represent the unnamed plaintiffs. It is for the above position that I am persuaded to the dictum of Agbo JCA in U.T.B. v.

Koleoso (2006) 18 NWLR (pt. 1010) 1, thus: “In the instant case, the non-obtaining of the leave of other defendants by the defendants on the record to defend the suit in a representative capacity does not in any way affect the competence of the suit filed.

It is certainly not a threshold matter as suggested by the appellants and it is not required of the respondent to force the persons represented to avail the appellants of the authority they contend is a condition precedent for proper representation.” The plaintiffs have no obligation to seek the leave of the mass of defendants to sue them in a representative capacity and it will be strange indeed for a Court to avoid an action because a hostile defendant says he, the defendant sued, has failed to obtain the leave of other defendants to defend in a representative capacity.

The plaintiff is not expected to call a meeting of his adversaries to enable them regularise his suit Any of the represented defendants who feels an aversion to the representation can apply to be joined directly. As rightly stated by the Court below, rules of Court relating to representative suits are rules of convenience that cannot be allowed to frustrate proceedings in any suit. Whether it is presumable that the 2nd and 3rd appellants have authority to represent all the shareholders of the 1st appellant Bank.

This issue has its origin at page 31 of the record of proceedings where as part of his ruling the trial judge had said. “It is presumable that the 2nd and 3rd respondents are Chairman and Managing Director respectively of the 1st respondent possess representative capacity and can act on behalf of the shareholders of the company”. See also the Court of Appeal case of ALHAJI (HON) ISHOLA LAWAL & ORS. v. ATTORNEY GENERAL OF KWARA STATE & ANOR (2010) LPELR-4425 (CA).

The case of Governor of Ekiti State v Hon Kola Fakiyesi (2009) LPELR-8353 aptly captured the narrative thus: “Where there is no authorization and leave of Court to sue in a representative capacity; where the pleadings and the evidence conclusively show a representative capacity the trial Court can justifiably enter judgment”. The Supreme Court has held that the adverse party lacks the locus standi to challenge the authority of named plaintiffs to represent the unnamed plaintiffs. In S.P.D.C.N LTD v.

EDAMKUE (2009) 14 NWLR (PT.1160), page 1 at PG-27-28, this Court per OGBUAGU, JSC held thus: “as regards evidence of any authorization from the two families or communities of the 1st and 3rd sets of plaintiffs/respondents to initiate the two suits on their behalves/behalf, I hold that the Appellant has no locus standi, to object to the said representation not being a member of those families or communities.

It is settled that once the plaintiff/plaintiffs expressed on a writ or statement of claim that the action was brought in a representative capacity as appears in the two consolidated suits, it is/was prima facie, though not conclusive evidence of authority by his/their group, family or community to sue in that capacity. It is only a member of that group, family or community, who can dispute, intervene or challenge the proper representation or the capacity in which the plaintiff/plaintiffs sued.

It will be futile for a defendant who is not one of those the Plaintiff/Plaintiffs purport to represent, to challenge his/their said authority for or because, if the plaintiff/plaintiffs wins/win, the losing defendant cannot share in the victory and if the plaintiff/plaintiffs case be dismissed, such dismissal can never affect defendant adversely. See the case of CHIEF P. C. ANATOGU & ORS VS ATTORNEY-GENERAL OF EAST CENTRAL STATE (1974) 4 ECSLR 36; (1976) 11 SC 109-ONYEMUZE & ORS v. OKOLI & ORS (1973) 3 ECSLR 150; ALHAJI/CHIEF OTAPO & ORS vs.

CHIEF SUNMONU & ORS (1987) 2 NWLR (PTS8) @ 603; (1987) S SCJN; (1987)2 N5CC VOL 18 P, 677 and DANIEL AWUDU & ANOR v. RAUTHAN DANIEL & ANOR ​ (2005)2 NWLR (PT.90) 199 @ 222-223 C.A. citing the cases of ANATOGU vs. ATTORNEY-GENERAL OF EAST-CENTRAL STATE; CHIEF OTAPO vs. CHIEF SUNMONU (SUPRA); BUSARI vs. OSENI (1992) 4 NWLR (PT.23) 557.” There is no contesting the right of the unnamed cross-appellants just like the named cross-appellants to be heard in a representative suit.

This right is guaranteed under Section 36 of the Constitution and the Court owes a duty to protect that right and give voice to the expression of this freedom by the unnamed cross-appellants. The Court of Appeal in the case of Ibigbami v Military Governor Ekiti State (2004) 4 NWLR Pt. 863 pg. 243 held that: “in a representative action every member of the class represented by the main plaintiff is equally a party to the action though unnamed.

See in Re UGUDU (1988) 5 NWLR Pt. 93 pg 189 and Otapo v Sunmonu (1987) 2 NWLR Pt. 158 at 58.” This Court per Obaseki, JS.C. gave blessing to this position of the law in the case of Otapo v Sunmonu (supra) as follows: “A hearing can only be fair when all parties to the dispute are given a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing.

When therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing.

Without fair hearing, the principles of natural Justice are abandoned, and without the guiding principles of natural justice concept of the rule of law cannot be established and grow in the society.” I posit that the Court has a duty to allow parties to contest their dispute when there is evidence to show that they wanted their common grievances resolved once and for all in a bid to do substantial justice and save multiplicity of action even without the leave of the Court.

To ensure substantial justice, the Court, even where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, encourages parties to amend their processes. The Court may go further to order a party to amend its capacity to accommodate the unnamed persons in deserving cases without leave. This is to meet the end of Justice.

Ogunwumiju, J.C.A (as he then was) in the case of BAMISILE V OSASUYI (2007) 9 NWLR PT 1042 p.225 held thus; “It is trite that where a plaintiff did not sue in a representative capacity and there is evidence to show he was so suing, the Court shall aim at doing substantial justice and save multiplicity of suits by amending the capacity in which the suit is instituted so as to bring it in line with the evidence even without any formal application.” To underscore the desirability and enthronement of substantial justice, the Courts have the discretion where a plaintiff had sued in a personal capacity instead of a representative capacity allow the plaintiff to amend the process to reflect the evidence and the Court proceed thereafter to enter judgment for the plaintiff as representing his family or community.

I rely on the following cases: OSUNRINDE & 7 ORS vs. AJAMOGUN (1992) 6 NWLR (Pt. 246) 156; (1992) 7 SCNJ (Pt.1) 79 @ 114-115. In fact, in the case of PRINCE LADEJOBI & 2 ORS vs. OTUNBA OGUNTAYO & 9 ORS (2004) 7 SCNJ 298 @ 310-311, (2004) 18 NWLR (PT 904) 149 – per UWAIFO, JSC it was held that the law is that a person has the right to protect his family’s interest in a property or title and can sue for himself and on behalf of his family in a representative capacity. The case of SOGUNLE VS. AKERELE (1967) NMLR 58; NTA vs.

ANIGBO (SUPRA); MELIFONWU vs EGBUJI (1982) 9 SC 145 @ 159 and CHIEF ATANDA & ORS vs AKUNYUN (stated therein as Olarewaju) (1988) 4 NWLR (PT.89) 394 were therein referred to. (It is also reported in (1988) 10-11 SCNJ 11). See also the case of COKER vs. OGUNTOLA & ORS (1985)1 ALL NLR (PT 1) 278, (1985) 2 NWLR (PT.5) 87; ALHAJI GEGELE vs. ALHAJI LAYINKA & 6 ORS (1993) 3 SCJN @ 45 reported as Layinka vs Gagele (1993) 4 KLR 5 (1993) 3 NWLR (PT 283) 518 and AWUDU & ANOR vs DANIEL & ANOR (2005) 2 NWLR (PT.909) 1999 @ 222- 223 C.A.

The cross-appellant certainly has made the point of the meritorious character of this cross-appellant. I too allow it and I abide by the consequential orders made. Cross-appeal allowed.

JOHN INYANG OKORO, J.S.C.: I have had the privilege of reading in its draft form, the lead judgment of my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC just delivered. I am in complete agreement with his reasoning and conclusion that the cross- appeal of these Respondents/Cross-Appellants has merit and should be allowed. The position of the law is trite that the rule permitting representative action is a rule of convenience. The essence is mainly to curtail multiplicity or influx of suits on the same interest or matter.

Such representative action is most appropriate once there is a common interest involving many aggrieved persons who are ready to enforce their rights in Court. See Durbar Hotel Plc Vs. Ityough (2011) 9 NWLR (Pt.1251)41; Adeleke Vs. Anike (2006)16 NWLR (Pt.1004)162; Anatogu Vs. Attorney-General East Central State (1976) 11 SC 109. It follows therefore that the rule governing representative action must necessarily be treated with some air of flexibility and liberality and not as a matter of strict rules which requires rigid compliance.

In the case of Olatunji Vs. Registrar Co-operative Society (1968) NMLR 393, this Court listed the requirements which must be available before a suit is commenced in a representative capacity, as follows: (1) There must be numerous persons interested in the case or the side to be represented: All those interested must have the same interest in the suit.

That is, their interest must be joint and several. (2) All of them must have the same grievance. (3) The proposed representative must be one of them (4) The relief or reliefs sought must be in its nature beneficial to all the persons being represented. See also Atanda Vs. Olarenwaju (1988)4 NWLR (Pt.89)394.

In the instant case, the named Cross-Appellants commenced the action for themselves and on behalf of slightly over 1000 of their colleagues who were relieved of their employments in one fell swoop. They all share a common interest which is to be reinstated to their job with attendant benefits. It would be inefficient management of judicial time and resources to have each of them initiate individual suits on the same subject matter which could be conveniently determined in a single action.

To this end, I hold the firm opinion that the Court below was wrong to have held that the judgment delivered in the suit inure only to the named applicants. There is no strict applicability of the rule for leave or authorization to sue in a representative capacity. All the aggrieved applicants, named and represented, shall be bound by and take benefit of the judgment. The cross-appeal is meritorious and it is hereby allowed by me. I also make no order as to cost. Appeal allowed.

ABDU ABOKI, J.S.C.: I had the benefit of reading in draft, the judgment prepared by my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. just delivered. I agree with the reasoning and conclusion that the cross-appeal is meritorious and ought to be allowed. I accordingly allow it.

The Cross-Appellants were all members of Staff of CBN. Between 1996 and 2003, the Federal Government gave various written directives to the CBN to terminate the appointments of some of its staff. The Cross-Appellants and over one thousand other unnamed Cross-Appellants were prematurely laid off.

Aggrieved by the action of the CBN, the Cross-Appellants brought a representative action for themselves and on behalf of the over one thousand staff of the CBN who were laid off.

​The CBN by a preliminary objection, challenged the competence of the action on the basis that there is neither an authorization nor approval of the trial Court to commence the suit in a representative capacity. The trial Court ruled against the CBN.

Dissatisfied with the ruling, the CBN appealed to the Court of Appeal. The Court below refused all the grounds of the appeal, but held that the suit inures for the benefit of only the named Eleven Plaintiffs (Cross-Appellants).

The Cross-Appellants are aggrieved by the part of the decision that the suit inures for the benefit of only the named Eleven Plaintiffs (Cross-Appellants), and have cross-appealed to this Court.

They raised a sole issue for determination, to wit: “Whether given the special circumstances and facts on record, the Cross Appellants’ action for themselves and on behalf of the slightly over 1,000 (one thousand) rationalized staff of the 1st Respondent enures only for the eleven named Applicants?”

​The CBN (Cross Respondent) also distilled a sole issue, that is: “Whether this suit inures in favour of only the eleven named Plaintiffs (now Cross-Appellants) and not for the benefit of the other unnamed persons in the absence of any authorization and/or leave to sue in a representative capacity?”

The nature of a representative action is such that given a common interest and a common grievance, a representative suit is appropriate if the relief sought by its nature is beneficial to all the persons sought to be represented. See:Oseni & Ors v.

Dawodu & Ors (1994) 2795 (SC) Various States High Court Rules in Nigeria have enacted provisions which are to the effect that, where more persons than one have the same interest in one suit, one or more such persons may, with the approval of the Court be authorised by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.

By the provisions of Order 12 Rule 8 of the Federal High Court (Civil Procedure) Rules 2000, which was the applicable Rules of the Federal High Court at the time this suit was initiated, where more than one persons have the same interest in one suit, one or more of them, may, with the approval of the Court, be authorized by the other persons interested to sue or defend the suit for the benefit of, or on behalf of all the parties so interested. ​I should think that that Rule, stated above in its words and application is permissive.

The Rule should be seen as not rigid but as flexible. it is often described as a tool of convenience which should be applied, nor in any strict or rigorous sense but according to its permissive scope. It is for this reason, that the Courts have come to the conclusion that failure to comply therewith ought not to make the action incompetent. In Otapo v.

Sunmonu & Ors (1987) LPELR-2822 (SC), this Court outlined the principles applicable, where a party failed to obtain leave to sue in representative capacity, and stated that: “It is settled that the failure to obtain leave to sue in a representative capacity does not vitiate the validity of the action. Our Courts do not easily wish to deprive citizens who come before them of their right of action. I never would.

This Court has held times without number that once the pleadings and evidence show conclusively a representative capacity and the case was sought throughout in that capacity, the trial Court can justifiably properly enter judgment for or against the party in that capacity even if amendment to reflect that capacity had not been applied for and obtained. Thus, it is required that a plaintiff should show on his writ and his pleadings that he is suing in a representative capacity.

Yet, even at that where a writ of summons is defective, to ensure that substantial justice is done, the Courts, rather than declare the suit incompetent, would allow amendment of the writ which is defective only in its failure to state the capacity in which the action is brought” Applying the foregoing principles, I would not declare this action incompetent, even though it is not evident that leave was sought and/or obtained before the Plaintiffs Cross-Appellants instituted their suit in a representative capacity.

There is no doubt that all over a thousand Staff of the CBN have a common interest, and claim the same right and remedy in their writ of summons and statement of claim. In the action, they expressed their desire to sue in representative capacity and so stated in the processes filed and served. On the authorities alluded to in this judgment, the Court below was wrong to hold that the judgment delivered inured only to the named Applicants. All the Cross Respondents, named and represented, shall be bound and shall take benefit of the judgment.

​It is for these reasons, and for the fuller reasons enunciated in the lead judgment of my learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C., that I agree that there is merit in this cross-appeal. It is hereby allowed by me. I also abide by the consequential orders contained in the lead judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, KEKERE-EKUN, JSC granted me the privilege of reading before now, the leading judgment prepared and rendered in this appeal. I am in complete agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add. I abide by all consequential orders including the order on costs.

Judgment

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A. (Delivering the Leading Judgment) : This judgment concerns one of two appeals. The two appeals arose from two suits. The two suits were heard together and determined together. Justice E. N. Thompson signed the judgment, which emanated from the Isiokpo Judicial Division of the High Court of Rivers State. The judgment on appeal is dated 27/07/2016 and lies at pages 435-462 of the record of appeal transmitted in appeal number CA/PH/332/2017, though its content is same with those in appeal no. CA/PH/483/2016, which grew out of suit no. AHC/25/1984.

Those are the numbers of the two appeals before us. The two appeals were heard together. Background Facts Since there is no complaint about inaccuracy of what was stated by the lower Court at pages 436-441 of the record of appeal, I will rely on the background facts narrated by the lower Court, as follows: “The Claimants in the consolidated instituted Suit No AHC/25/83 on 25th April, 1983 with the following reliefs: “i. N20,000 being special and general damages for trespass. ​ii.

Perpetual injunction to restrain the Defendants, their agents from committing further acts of trespass in the said land.” The Claimants filed their Statement of Claim which was amended. The last amendment was the Further Amended Statement of Claim filed on the 27th February 2008 which had the following reliefs: “i. A declaration that the Claimants are entitled to the customary right of occupancy in respect of the land in dispute situate at Ogbogolo Community and verged pink in plan No. BOE/R2/84-LD. ii. N5,000,000.00 (Five Million Naira) general damages. iii.

Order of perpetual injunction restraining the Defendants, their privies, agents (sic) from continuing further acts of trespass on the land in dispute and in whatever manner tampering with the land in dispute.” The Defendants filed a defence which was also amended. The last amendment was the Further Amended Statement of Defence filed on the 15th August 2013. The Defendants also filed a cross action on 9th April 1984 in Suit No. AHC/44/84. The Defendants as Claimants in the cross action claimed the following reliefs: “a.

A declaration that the Claimants are by Abua Customary Law entitled to the right of Occupancy over the piece or parcel of land known and called Edum-Ogboko land situate at Egunughan village along the bank of Orashi river, covered by survey plan No. ICO/RV/2013/002LD dated the 15/6/2013 by Nze (Surveyor) Ifeanyi Okoye, licensed surveyor and is filed with this amended statement of claim. b. A claim for forfeiture of the customary tenancy held by the Defendants over the said land. c.

A Perpetual Injunction restraining the Defendants, their servants, privies and agents from further acts of trespass upon the said land.” The Claimants as Defendants in AHC/44/84 filed a Statement of Defence, the last of which is the further Amended State of Defence filed on the 30th May, 2008.

This consolidated suit was thus fought on the following pleadings: (i) Further Amended Statement of Claim in AHC/25/83 dated the 22nd day of February, 2008 and filed on the 27th February 2008. (ii) Further Amended Statement of Defence in AHC/25/83 dated the 14th day of August 2013 and filed on 15th August 2013. (iii) Amended Statement of Claim in AHC/44/84 dated 14th August 2013 and filed on the 15th August 2013. (iv) Amended Statement of Defence in AHC/44/84 dated 26th May 2008 and filed on the 30th May 2008. The case suffered a series of adjournments and de novos.

Trial before me began on the 23rd October 2008. The Claimants called 5 witnesses namely (i) Dr. Epegu Marabai David, (ii) Ayipia Mark, (iii) Badume Omasikwem Ejekwu (iv) Friday Ernest and (v) Geoffrey Benjamin Manager Ikogha as CW 1-CW 5 respectively. On their part, the Defendants called 4 witnesses namely: (i) Peter Ekparam (ii) David Oleh (iii) Sunday Akio and (iv) Nze Ifeanyi Christopher Okoye as DW 1-DW 4 respectively. The case of the Claimants briefly put is that the Claimants’ Ogbogolo community owns the Edum-Ogboko land of which the land in dispute is part of.

The said Ogbogolo community according to the Claimants is comprised of Egboama-Ogbogolo, Kala-Ogbogolo, and Opu-Ogbogolo. According to them, the Edum-Ogboko land which as stated includes the land in dispute was inherited from their great ancestor Ogbogolo who was the first settler on the land with his children and cleared it as a virgin forest. Ogbogolo and his children lived at Opu-Ogbogolo while using the other parts of Edum-Ogboko for farming purposes. According to the Claimants, Ogbogolo in his lifetime had two sons and a daughter namely: Amakwo, Eganibo and Akpekpe.

Amakwo begat Kurukuru and Okwazi, Eganibo begat Egbo, and Akpekpe who was not given out in marriage by her father begat Elebiko, Oyo Gbilofori and Ogi. On the death of Ogbogolo the Claimants say Amakoro and his descendants remained at Opu-Ogbogolo, Akpekpe moved to Kala-Ogbogolo, while Eganibo moved to the northern part of Edum-Ogboko land called Oduler Ori but on the death of Eganibo his son Egbo moved south wards to Egboama. The Claimants say they have been exercising acts of ownership on the entire land by farming, fishing and letting out to tenants.

The Claimants further state that in 1964 Shell Petroleum Development Company Limited entered part of the Edumogboko land and paid compensations, commissions and rents to the Claimants. It is their case further that they have fought several legal battles over the Edumogboko land. Finally the Claimants say that in January 1983 the Defendants forcefully entered the land in dispute destroying economic crops, felling economic trees and contaminating the ponds and lakes hence the filing of the suit No. AHC/25/83.

The case of the Defendants again briefly put is that Egunughan their ancestor founded the Edum-Ogboko land, cleared the said virgin forest and established farm, fish ponds, raffia palm plantations on the said land in dispute. It is their case also that Egunughan cleared a large portion of land at the Eastern side of the Orashi River opposite the land in dispute where he established his dwelling place. According to the Defendants on the death of Egunughan the lands passed to his descendant Aburen from Aburen to Ottor, from Ottor to Onye Emughan who was succeeded by Ekwe and then Nwubi.

Still according to the Defendants Oku inherited the land from Nwubi, on Oku’s death he was succeeded by Akio who himself was succeeded by Mughutoph who in turn was succeeded by original Defendant and then Akio the current 1st Defendant. The Defendants also claim that during the time of Nwubi, two immigrants from Kasi-Karma in Ogbia, – Egbo and his sister Apkpekpe came to Egunughan to see a native doctor because of the ill health of Akpekpe. Nwubi then gave them a part of Egboama to settle.

When Akpekpe became well she befriended a member of Egunughan community who was living in a fishing hut nearby. Akpekpe they claim moved in with the man named Ekpekele and later on she brought her relations to the place with the approval of Nwubi. So the defendants say the two settlements became known as Ottor-Egbo and Ottor-Kpekpe which are now known as Egboama and Kala-Ogbogolo. It is the case of the Defendants further that Kurukuru also migrated from Ogbia and was given a settlement by the Uwema of Obrary at Opu-Ogbogolo.

The Defendants finally state that they have been farming, fishing and doing several acts of ownership until the Claimants began disturbing them culminating in the filing of Suit No. AHC/25/83 and the Defendants then filed their cross action in AHC/44/84. At the close of trial Counsel filed written addresses in accordance with the rules.” Judgment of the lower Court At pages 461-462 of the record of appeal, the lower Court concluded its judgment, thus: “I find that the Defendants have trespassed on the land in dispute. There is no reason to consider issue two.

In the circumstances of these cases I find that the Claimants in AHC/25/83 have established their case and the Claimants in AHC/44/84 have failed in their case. Accordingly, I enter Judgment for the Claimants in AHC/25/83 and make the following Orders: i. It is hereby declared that the Claimants are entitled to the Customary right of Occupancy in respect of the land in dispute situate at Ogbogolo Community and verged pink in survey Plan No. BOE/R2/84-LD. ii. N500,000.00 damages is hereby awarded to the Claimants for the trespass committed by the Defendants. iii.

The Defendants are personally restrained by themselves, their privies and agents from further acts of trespass on the land in dispute and in whatever manner. iv. N200,000.00 costs to the Claimants. Having found that the case in AHC/44/84 is lacking in merit it is hereby dismissed in its entirety. N100,000.00 costs to the Defendants.” Notices of Appeal and Issues for Determination In the words, quoted above, the lower Court entered judgment for the respondents in this appeal and against the appellants. Aggrieved, the appellants filed their notice of appeal. Arising from suit no.

AHC/44/1984 is appeal number CA/PH/332/2017 (this appeal), which was filed on 27/09/2016 and whose notice of appeal is at pages 485-505 of the record of appeal, containing a rather unwieldy 28 grounds of appeal. ​Appellants’ brief of argument was filed on 12/10/2018, but deemed properly filed and served on 17/03/2020, settled by Ochuko V. Saduwa Esq.

The issues submitted for determination of the appeal by learned appellant’s counsel are: “1) From the facts of the consolidated matters particularly Suit No: AHC/44/1984, now subject of this appeal, was the learned trial Judge right in law when he held that the Respondents have capacity to maintain and defend the action in the capacity they did at the Court below in the absence of any community called Ogbogolo and when there is no evidence of common interest as opposed to the three villages of Egboama, Kala-Ogbogolo and Opu Ogbogolo being distinct and separate? [Grounds 6, 8 and 13 of the Notice of Appeal]. 2) Did the learned trial Judge give the right interpretation as regards the documents tendered by the Respondents and also the capacities in which the previous suits tendered by Respondents were instituted vice-visa the capacity in which the present suit by Respondents was defended?

Further, whether the said suits have any bearing with the present suits including their legal effect on Appellants who were not parties to same? [Grounds 16, 19 and 20 of the Notice of Appeal]. 3) Was the learned trial Judge right in refusing to make a pronouncement and/or decision with respect to the traditional histories of the parties before resorting to the rule in Kojo v Bonsie [1957] 1 WLR 1223 by which a trial Judge can give resort to acts of possession in determining a claim for declaration of title to land? [Grounds 2, 3]. 4) From the totality of the evidence led by the parties with respect to their traditional root of title, who between Respondents and Appellants proved by their pleadings and evidence led in support better root of title? [Grounds 1, 11 of the Notice of Appeal]. 5) Did the learned trial Judge properly evaluate the evidence of the parties on the imaginary scale of justice before coming to the conclusion that the Respondents proved their root of title having regard to the following areas viz, the survey plans of the parties, the pronouncement of the learned trial Judge on Emesu Community being the owners of the disputed land, the Appellants’ proof of incidences of customary tenancy amongst others in the course of resolving the dispute? [Grounds 4, 5, 7, 9, 10, 12 14, 15, 17, 18, 21, 22, 23, 24, 25, 26 and 27]. ​The respondents’ brief of argument, which was filed on 06/07/2020, but deemed properly filed and served on 28/06/2021, was settled by Chris O.

Enweozor Esq. Learned counsel distilled the following issues for the determination of the appeal: 1. Whether in the light of the pleadings, evidence adduced and exhibits tendered in this case, whether the respondents’ case in suit no. AHC/25/83 was properly constituted as a representative action on behalf of Ogbogolo community and whether suit no. AHC/44/84 was properly defended by the respondents in that same capacity. (Ground 13). 2.

Whether the respondents proved their communal ownership of Edumogboko land which includes the land in dispute as against the contention of the appellant that the three Ogbogolo villages are distinct and do not have common interest on the land in dispute (Grounds 6 and 8). 3. Whether on the facts and evidence led in this case, the learned trial Judge was right in holding that the respondents as claimants in the consolidated suits proved their case and consequently dismissed the cross action of the appellants in AHC/44/84. 4.

Whether the learned trial Judge properly evaluated the evidence of the parties in coming to the conclusions and decisions reached in the judgment. (Grounds 4, 5, 10, 12, 25, 26 and 27). Appellants’ Argument of the Appeal With respect to the first and second issues, which were argued together, appellants’ counsel submitted that the respondents, who were claimants before the lower Court, failed to prove the representative capacity in which they brought their suit and failed to establish that the Ogbogolo community is in existence. He accused the respondents of lacking commonality of interest.

As between the respondents, who he claimed actually represent three separate villages, instead of the one unit of community, which the respondents claimed to be representing in their suit. He submitted that the suit before the lower Court was not properly constituted. Learned counsel complained that the respondents failed to prove that the land in dispute is communal land, which is a topic the lower Court failed to comment in respect of. Learned counsel later complained that the lower Court held that the land in dispute is communal land.

He is of the opinion that the lower Court did not evaluate evidence on the issues highlighted. He pointed out that the traditional history of root of title presented by the appellants was solid and that it was Nwubi who gave land to Egbo (and his sister Akpekpe), who founded Egboama, as there is nobody known as Ogbogoro. He is of the view that the respondents did not prove their title, as they are customary tenants to the appellants, who pleaded incidences of customary tenancy.

On the third, fourth and fifth issues, which were argued together, learned counsel submitted that the lower Court was wrong to have, without evaluating evidence and placing evidence on the imaginary scale, proceeded to adopting the rule in Kojo II v. Bonsie, which is applicable where traditional history conflict. He insisted that the appellants led uncontradicted evidence, as their progenitor Egunughan, was the first person to first settle on the land in dispute and was succeeded thereon by his descendants. The possession of the appellants was not controverted by the respondents.

He is of the view that the lower Court ignored credible evidence before it and its judgment is perverse. Respondents’ Argument of the Appeal On the part of the respondents, respondents’ counsel submitted that the judgment of the lower Court is not perverse. He submitted that the witnesses of the appellants (DW 1 and DW 3) testified in support of the case of the respondents and that the respondents failed to prove their claim to title. The Court was advised that the representative capacity of the respondents was established and that it is not in the place of the respondents to complain.

The three villages constituting the Ogbogolo community are within the land in dispute, which the appellants do not own. ​He submitted that the traditional evidence led by the respondents was consistent and unchallenged, as Ogbogolo was the first to settle on the land and succeeded thereon by his descendants. It was pointed out that the evidence of CW 5, a descendant of Ogbogolo was unshaken at the trial.

While appellants gave conflicting traditional evidence, learned counsel submitted that the lower Court adopted the correct approach when it embarked on the approach set in the case of Kojo II v. Bonsie, to resolve the dispute between the parties. He pointed out that since the appellants alleged customary tenancy, it was their duty to prove it, which they failed to do. He insisted that Egunughan was not the original owner of the land in dispute. Appellants’ Reply Brief of Argument The appellants’ reply brief did not raise or respond to any issue which was not captured in the main brief.

It was an exercise in edification of what had already been argued. Determination of the Appeal In the case of Husseni v. Mohammed (2015) 3 NWLR (Pt. 1445) 100 at 124-125, the Supreme Court instructed that an issue for determination in an appeal is a question of law or fact or both arising from the ground of appeal, which when resolved one way or the other will affect the result of the appeal. An appeal is decided upon the issue formulated for determination from the grounds of appeal.

When an issue is formulated, the grounds of appeal on which the issue is based is extinguished and replaced by the issue. Also, in the case of PDP v.

Umeh (2017) 12 NWLR (Pt. 1579) 272 at 294, the Supreme Court stated that an issue for determination is raised from grounds of appeal and is usually a proposition of law or of fact in dispute between the parties which is necessary for determination, and the determination of which would affect the result of the appeal. ​Going by the pleadings, evidence led at the trial and the judgment of the lower Court, it is my view that the parties in this appeal, unfortunately, failed to appreciate the implications of the pleadings laid before the lower Court and the judgment of the lower Court.

As it will be shown hereafter, the issues raised by both parties and quoted above, are somewhat distant, regrettably, from the issues arising from the judgment of the lower Court and grounds of appeal filed by the appellants. The first issue from the appellants will be considered because it complains about the constitution of the suit before the lower Court, which may impact on the competence of the suit or jurisdiction of the lower Court.

Apart from the first issue in the appellant’s list, it is only the fifth issue raised by the appellants, which comes a little close to being a real issue for determination. Therefore, I have rephrased the fifth issue for clarity and precision to read, thus: This appeal will be, effectively and completely determined based on the two issues identified by this Court, as follows: 1.

From the facts of the consolidated matters, was the action of the Respondents properly constituted in the absence of any community called Ogbogolo and when there is no evidence of common interest as opposed to the three villages of Egboama, Kala-Ogbogolo and Opu Ogbogolo being distinct and separate? [Grounds 6, 8 and 13 of the Notice of Appeal]. 2. Whether the appellants proved that the respondents are tenants to the appellants on the land in dispute. [Grounds 4, 5, 7, 9, 10, 12 14, 15, 17, 18, 21, 22, 23, 24, 25, 26, 27 and 28]. Hearing of the Appeal This appeal was argued on 20/01/2022. A.

Akpomuje (SAN) (with O. V. Saduwa Esq.) appeared for the appellants in the two consolidated appeals. Learned counsel reminded the Court that the appeals were consolidated, by order of Court, on 07/02/2018. He adopted the appellants’ brief of argument filed on 12/10/2018, which was deemed properly filed and served on 17/03/2020 and the reply brief of argument, filed on 09/07/2021, as argument of this appeal. He urged the Court to allow the appeal. Chris O. Ekweozor Esq. (with A. I. Odo Esq.) appeared for the respondents in the two consolidated appeals.

He adopted respondents’ brief of argument filed on 06/07/2020, but deemed properly filed and served on 28/06/2021, as argument of opposition to this appeal. He urged the Court to dismiss the appeal.

Resolution of the First Issue The first issue asks: From the facts of the consolidated matters particularly Suit No: AHC/44/1984, now subject of this appeal, was the learned trial Judge right in law when he held that the respondents have capacity to maintain and defend the action in the capacity they did at the Court below in the absence of any community called Ogbogolo and when there is no evidence of common interest as opposed to the three villages of Egboama, Kala-Ogbogolo and Opu Ogbogolo being distinct and separate? [Grounds 6, 8 and 13 of the Notice of Appeal].

The appellants argued this appeal, especially the first issue, oblivious of the fact that the suit which birthed this appeal (AHC/44/1984) was initiated by them and is distinct from suit no. AHC/25/1983, which the respondents filed and with which we are not directly concerned. ​Thus, while it is a fact that the appellants filed their suit, describing the respondents as representing three diverse villages, the respondents defended the suit as representatives of the single unit of Ogbogolo community, which they claimed their three villages form components of.

The lower Court, based on the manner the respondents defended the suit gave judgment to them in the capacity in which they defended the suit.

Unwittingly, the appellants’ counsel provided answer to his complaint in paragraph 3.1.8 of the appellants’ brief, where learned counsel for the appellants confessed thus: “3.1.8 The Respondents also had the opportunity to defend the action of the Appellants [Suit No: AHC/44/84] subject to of this appeal in the capacities in which each of the villages were sued yet they did not also address the issue but defended the case in the capacity of Ogbogolo Community which is not the capacity in which they were sued.” The law allows a party to defend a suit in which he is a party in a different capacity from that in which he is sued.

The Court, even where the title of the suit is not amended, is at liberty, going by evidence before it, to enter judgment in such a suit in appropriate capacities, which evidence disclose. The lower Court did not do anything wrong in the circumstances of suit no. AHC/44/1984, when it entered judgment, appropriately, noting the respondents’ capacity as representatives of the Ogbogolo community.

It is settled that once pleadings and evidence show conclusively a representative capacity and the trial was conducted throughout in that capacity, a trial Court can justifiably give judgment against either parties in that capacity even where amendment had not been applied for and obtained to reflect such capacity. See Afolabi v Adekunle [1983] 2 SCNLR 141; Jack v Whyte [2001] 6 NWLR (Pt 709) 266; and Jinadu v Esurombi-Aro [2005] 14 NWLR (Pt 944) 142 at 205.

On this point of representative capacity, the Court in the case of Mba Nta & Ors. v. Ede Nweke Anigbo & Anor. (1972) 5 S.C.156 at 174-175 (Coker, JSC., delivering the judgment) said: “This clearly means that at all times the matter rests with the Court with respect to the ambit of the order which it proposes to make. It is absolutely impossible to sue every man, woman and child of a large community and where it is intended to institute legal proceedings against them, it is impossible to do otherwise than to name some of them as defendants to the action.

If those named care to do so, they may ask for a representation order. If they do not, the Court is entitled to give judgment according to the evidence and nature of the case.

If there are parties aggrieved as being caught within the case when they were not by name made parties thereto, they have a right of appeal under our constitution; and we think it is right to argue that it is not open to a defendant named on a writ to complain as is being done in this case that other persons apart from himself have been included in the scope of the judgment”. ​The time and resources of the appellants would have been better utilized, regarding their appeal against the judgment in AHC/44/1984, if they dwelt more on how their appeal could succeed instead of the capacity in which the respondents defended the suit.

The capacity of a defendant defending a suit, where he is accused of trespass, may not be germane because a trespasser does not have any claim to any other capacity, once he is determined to be a trespasser. Further to the above, the appellants are not members of the Ogbogolo community or family and cannot know more about the respondents’ origin or affinity than the members of the named family or community, none of whom is complaining. The case of Alikor v.

Ogwo (2019) 15 NWLR (Pt. 1695) 331 directs that it is only a member of the group, family or community who can dispute, intervene, or challenge the proper representation or the capacity of a party to a suit. It will be futile for appellants, who are not one of those the respondents represent, to challenge their authority, for or because, if the respondents lose, the successful appellants, cannot share in the loss and can never affect the appellants adversely.

In the instant case, the respondents had common interest to defend the common threat from the appellants pertaining to their claim to their ancestral and communal land. Consequently, their action defending the appellants’ suit in a representative capacity was competent. The lower Court was correct to so hold. Apart from the above, in the case of Elf Petroleum Nig. Ltd. v. Umah (2018) 10 NWLR (Pt. 1628) 428 at 452-453, the Supreme Court stated that the authority of a person to take part in a suit can be challenged by way of preliminary objection, on notice and not by way of defence.

The only way the capacity of a party can be successfully challenged is by way of preliminary objection. That position was reiterated in the case of S. P. D. C. v. Amadi (2010) 13 NWLR (Pt. 1210) 82 at 127, to the effect that the challenge to the authority of a person to bring an action in a representative capacity is usually by way of preliminary objection. It is known from the record of appeal, that the appellants did not file any preliminary objection before the lower Court to challenge the capacity in which the respondents defended their suit in that Court.

Thus, the appellants’ approach to raising objection to the capacity of the respondents to defend the suit is inappropriate, in the circumstances of this appeal and the challenge has to be and is hereby discountenanced. In the case of N. A. C. B. Ltd. v. Adeagbo (2004) 14 NWLR (Pt. 894) 551, the Court warned that it is not enough to simply challenge or oppose the right to sue in a representative capacity. It must be backed with evidence or proof. The opposer must present substantial proof of his ground of opposition which will deprive the plaintiff of suing in a representative capacity.

In the instant case, no such proof was established by the appellants. Rather, the respondents presented judgments and proceedings (exhibits C8, C9, C10, C11, C12 and C13) of Courts, which proved that the respondents have been engaged in litigations as Ogbogolo community over the years, in respect of portions of the Edumogboko land. ​The appellant, while acknowledging the existence of the judgments of competent Courts of law, cheekily, asserted that the judgments were stage-managed without proof or evidence establishing such assertion.

It was not good enough that the appellant’s counsel joined his clients to attempt to rubbish the decisions of Courts in the manner suggested, without evidence or any attempt to prove what was asserted. The lower Court was correct when it held that the community is in existence and was a unit of community. Before rounding off on the first issue, it is important to highlight the fact that despite the posturing of the appellants, their witness, DW 1, disagreed with the appellant about the existence of the three Ogbogolo villages, which make up the Ogbogolo community.

On 24/05/2012, when he was cross-examined, DW 1 answered specific questions, as follows, at page 405 of the record of appeal: “Q: All the towns that make up Emunughan Clan are located on one side of the Orashi River A: Yes Q: All their towns and villages are on one side of the Orashi River A: Yes Q: Do you know the 3 Ogbogolo villages Opu-Ogbogolo, Kala Ogbogolo A: Yes Q: These 3 Ogbogolo village are located on another side of Orashi River different from where Emunughan Clan is located A: Yes but Obranyi gave them the land Q: Do you know one Chief Nathan Ebi Osundu A: I know him Q: Where is he today A: He is dead Q: He was the traditional ruler of Ogbogolo Community A: Yes” (Bold font for emphasis).

DW 3, appellants’ witness, testified at page 422 of the record of appeal, regarding the existence of Ogbogolo community, thus: “Q: Do you know the following Ogbogolo villages (i) Egboama-Ogbogolo (ii) Kala-Ogbogolo and; (iii) Opu-Ogbogolo A: I know them Q: Do you know Chief Nathan Ebi Osundu the Traditional Ruler of Ogbogolo A: Yes. He is late Q: These 3 Ogbogolo villages are on the Edumuogboko land but outside the land in dispute. A: Yes but we put them on the land. They are our tenants.” (Bold font for emphasis).

Above is the evidence of two witnesses called by the appellants, who testified that they know the Ogbogolo community and knew their deceased traditional ruler. DW 1 and DW 2 gave evidence of the location of the three villages, which make up the Ogbogolo community. Despite the evidence of the appellant’s witnesses, the appellants, in avoidable display of intellectual wickedness, are before this Court, seeking to persuade us to hold contrary to the testimony of their witnesses. Tobi J. S. C. on the value of self-induced – but case negating – evidence explained in the case of Odi v.

Iyala [2004] 8 NWLR (Pt 875) 283 at 310 that: “I cannot see better evidence against a party than one from a witness called by him, who gives evidence contrary to the case of that party. This is because, the party is calling the witness to testify in favour of his case as pleaded in the pleadings. If the party knows that the witness will not give evidence in his favour, he will never call him, as in the present case, as relates to the evidence of PW 3 and PW 4.

The Evidence Act anticipated this type of situation and made provision in the Act for a party to treat his own witness as hostile in relevant cases. I had earlier made the point. In my view, the appellants had all the opportunity to take advantage of the provisions of the Evidence Act, they cannot repair the damage done at the trial in this Court. This Court has not the mechanical tools to effect any repairs.” ​As it was in the case quoted above, so it is in the appeal before us. The lower Court was correct when it held that Ogbogolo community exists.

The respondents properly and responsibly defended appellants’ suit as representatives of their Ogbogolo community.

In the case of Nandom Miri Dashe & Ors. v. Nanyak Sallah Jatau & Ors. [2016] LPELR–40180(CA), this Court (relying on Black’s Law Dictionary, 9th Edition, at page 127) defined the word “community” as: a. A neighbourhood, vicinity, or locality. b. A society or group of people with similar rights or interests. c. Joint ownership, possession, or participation. In paragraph 2 of the amended statement of claim in suit no.

AHC/44/1984 (at page 80 of the record of appeal) which the appellants themselves filed, they pleaded, thus: “2. … All the three sets of Defendants are sued jointly and severally, for themselves and as representing the three Ogbogolo village settlements.” In sum, it is my view that the first issue should be, and it is, hereby, resolved against the appellants.

Resolution of the Second Issue There is need to explain how the second issue is pertinent and central to the determination of this appeal, because parties in this appeal missed out on the implications of the pleading of the appellant on onus of proof and pertinence of some findings of the lower Court in its judgment. In paragraphs 3, 8, 10, 11 and 16 of the amended statement of claim which appellants filed (pages 80-86 of the record of appeal) appellants pleaded and claimed thus: “3.

The land which is the subject-matter of this action, hereafter called the land in dispute is known and called EDUM-OGBOKO FARMLAND situate and lying on the opposite bank of the Orashi River while the village community live on the opposite bank at Egunughan village in Abua/Odual District of Ahoada Local Government Area, within the jurisdiction of this Honourable Court.

The said land in dispute is bounded as follows: a) On the North, by the Ozochi people b) On the East by the Orashi river c) On the West by the land of Ukpiri village of Oba-glo-Emirikpoke-Odual and land of Egunuga people of Odual d) On the south by the Emesu people … 8.

The settlements known as Egbo-Ama and Kala-Ogbogoro granted by the Claimants ancestors are within the land in dispute while the portion of land granted to Kurukuru by the Uwema of Obrany lies at the Southern portion outside the land in dispute and there has been no territorial link between the three settlements neither were the portions of land lying between the said settlements granted to the settlers in each or all the three settlements.

Between the two Ogbogolo settlements on the land in dispute and the Kurukuru settlement on the Obrany portion of land, there is a large expanse of land owned, possessed and used by the Emesu village community who also live on one bank of the Orashi river and do extensive farming on their land situate at the Western bank of the Orashi river. … 10.

The Defendants had up till recent observed strictly the terms of the grant made to them by the Uwemas or paramount Chiefs of Egunughan and Obrany and had never cultivated the said land nor fished in the lakes, ponds and creeks outside the areas granted to them. 11.

The Claimants are not aware of any litigation between the Defendants and third parties and that the Defendants have no right whatsoever to litigate or lay claim over any portion of the said land in dispute without consulting with or obtaining the permission of the Claimants who are their overlords and any such clandestine litigation cannot be binding on the Claimants. The Defendants were aware that knowledge of litigations between them and third parties by the Claimants would completely puncture their claims. … 16.

The Claimants therefore claim from the Defendants jointly and severally as follows: … b) A CLAIM for forfeiture of the customary tenancy held by the Defendants over the said land.” (Bold font for emphasis). While it should not be missed, from all quoted above, that the appellants clearly admitted that the Ogbogolo community exists in the pleading above, where they mentioned “Ogbogolo settlements”, the point at which appellant described the defendants as their customary tenants, appellants acquired a statutorily prescribed duty to prove what was asserted.

That is apart from the fact that the appellants had, thereby, admitted or conceded that the respondents were in possession of the land in dispute, with attendant implications. The statutory duty is derived from the Evidence Act, 2011 which in its Section 143 provides: “143. When the question is whether any person is owner of anything of which he is shown to be at possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.” In George Onobruchere & Anor. v.

Esegine & Anor. [1986] 1 NWLR (Pt. 19) 799 at page 806, the Court per Oputa, JSC restated the principles guiding the Court in deciding the party that bears the onus or burden of proof in a civil case. The Court said: “An onus of proof does not exist in vacuo. The onus or burden of proof is merely an onus to prove or establish an issue. There cannot be any burden of proof where there are no issues in dispute between the parties. For example, if the plaintiff’s claim is admitted, that will be the end of the story.

Similarly, if a particular averment of the plaintiff is admitted, there will no longer be an onus to prove what has been admitted by the opposite party. Therefore to discover where the onus lies in any given case, the Court has to look critically at the pleadings. Where for instance the plaintiff pleads possession of the land in dispute as his root of title and the defendant admits that possession but adds that the land was given to the plaintiff on pledge, then the onus shifts onto the defendant to prove that the plaintiff is not the owner of the land his possession of which had been admitted.

Once the defendant admits the plaintiff’s possession of the land in dispute in his statement of defence, then and there, the plaintiff has on the pleadings discharged the onus of proof cast on him and Section 145 of the Evidence Act, Cap. 62 of 1950 will impose a burden on the defendant to prove the negative – namely that the plaintiff is not the owner. See Lawrence Onyekaonwu & Ors. v.

Ekwubiri (1966) 1 All NLR 32 at 35.” To displace a party in possession of land, the rival claimant must show that the party in possession is in possession with his consent as his tenant as the law presumes the person in possession as the owner. See Laguro & Ors. v. Toku & Ors. [1986] 4 NWLR (Pt. 33) 90; Jinadu v. Esurombi-Aro [2005] 14 NWLR (Pt 944) 142 at 201. It is that statutorily prescribed presumption of ownership, in favour of the respondents, which is rebuttable, that the pleadings of the appellant, quoted above, aroused.

The presumption is rebuttable because, it is accepted that mere possession of land by a customary tenant, however long, cannot mature to confer statutory rights. See Dagaci of Dere v. Dagaci of Ebwa [2006] 7 NWLR (Pt. 979) 382 at 452. To rebut the presumption, in the case of Okpaloka & Ors. v.

Umeh & Ors. [1976] LPELR-2514(SC), concerning an absolute owner of land, the Court stated that: “Where an absolute owner of land brought an action for trespass against a person alleged to be in possession, all that the owner had to prove was his title and an intention to regain possession.” However, we have to pay attention to the risk involved in pleading that an adversary in litigation is a customary tenant, which is better explained in the case of Udeze v.

Chidebe [1990] 1 NWLR (Pt. 125) 141 at 160-161, where the Court stated that: “It is significant to note that a customary tenant is in possession of his holding during good behaviour, and until it is forfeited for misbehaviour. Once it is the case that such a person is a customary tenant, and, therefore, in possession, then like in any other person in possession of land, there is a presumption of ownership in his favour. Although, that presumption is rebuttable, by due proof of a tenancy the onus is on his adversary to rebut it, if he can.

Where, the customary tenancy is not proved, such a pleading may turn out to be dangerous admission of possession in the opposite party, upon which the trial Court may base a presumption of ownership, unless, of course, it is rebutted.” Deriving from the above, it will be noticed that it is a weak argument to contend that the lower Court did not evaluate evidence of traditional history led by the respondents, as the law had presumed ownership in their favour, which the appellants had a duty to displace. ​Before a party may validly prove existence of customary tenancy, where pleadings constitute the basis of evidence, it would be expected in law, that incidents of customary tenancy should be pleaded before evidence would be led thereon.

An examination of the pleadings of the appellant in this appeal shows clearly or confirms that the appellants failed to mention anything about payment of customary tributes or whether it has been excluded by the parties. With the appellants not pleading material facts on incidences of customary tenancy or material facts regarding that core condition of customary tenancy, there was no way appellants could have validly led evidence in respect of the existence of customary tenancy, which became fatal to the case of the appellants.

Implicitly, there could not have been valid proof of customary tenancy and there was indeed no proof of customary tenancy between the parties before the lower Court. The point being made here was not lost on the lower Court, which competently stated, at pages 456-457 of the record of appeal, as follows: “The major act apart from the fact that they claim to be farming and fishing on Edumogboko land is that they put the Claimant (i. e. the Defendants in AHC/44/84) on the portions of Edumogboko land where they live and farm. The question to ask is what is the nature of this grant?

The answer is in paragraph 16(b) of the Amended Statement of Claim in AHC/44/84 wherein the Claimants therein sought a relief amongst others for: “(b) A claim for forfeiture of the Customary tenancy held by the Defendants over the said land.” It is clear that the Defendants are saying the Claimants are their customary tenants. The Claimants have denied this. The law is trite that he who asserts must prove. See Section 131 of the Evidence Act and the case of AMADI V. ORJI [2016] 9 NWLR (Part 1516) 154. It is thus the duty of the Defendants to establish the customary tenancy.

In the case of DASHI V. SATLONG [2009] 1-2 SC (Part II) the Supreme Court held that “Customary Tenancy involves the transfer of an interest in land from the Customary Landlord or Overlord to the Customary Tenant to exclusive possession of the land and which interest subject to good behavior, he holds in perpetuity. Unless it is otherwise excluded the main features of a customary tenancy is the payment of tribute by the customary tenant to the Overlord.

And the status of his exclusive possession is such that it is enforceable against the world at large including even the customary land lord or those claiming through him”. Again in the case of DIM V. ENEMUO [2009] 10 NWLR (Part 1149) 353 the Supreme Court held further that a Claimant alleging Customary tenancy must plead and prove the incidences of Customary tenancy. Throughout the length and breadth of the said Amended Statement of Claim in AHC/44/84 there is no pleading on the incidences of Customary tenancy.

I have also looked at the further Amended Statement of Defence in AHC/25/83 and find no such pleading. It is clear that the Defendants have not established customary tenancy.” (Bold font for emphasis). The position of the law on pleading and proof of customary tenancy cannot be better put, as was done by the lower Court. The main incident of customary tenancy is that the customary tenant pays tribute to the overlord and he enjoys his holding in perpetuity subject to good behaviour.

Although, payment of tribute is a recognized condition of customary tenancy, it is not always so and for all times. This is because, there are situations where tribute is not paid to the overlord and yet customary tenancy exists. For instance, where the tenant unequivocally recognises the position of the overlordship of the landlord, a customary tenancy exists whether tribute is paid or not. This is because, payment of tribute could be overlooked by the landlord because of kindness and charity.

There are also instances where the landlord asks the tenant to stop payment of tribute because of very long association and the good behaviour of the tenant. See the cases of Kano v. Maikaji (2011) 17 NWLR (Pt. 1275) 139; Bassey v. Bassey (2009) 12 NWLR (Pt. 1156) 617 and Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60. However, these facts must be pleaded and proved with cogent and admissible evidence, to establish customary tenancy. In the case of Akinbade v.

Babatunde (2018) 7 NWLR (Pt. 1618) 366 at 395-397, which presumably mirrors the circumstances of this appeal, the Supreme Court stated thus: “In the instant case, the appellants had alleged that the respondents are their customary tenants for which the trial Court upheld. But the Court below looked at the evidence led at the trial Court but could not find any iota of evidence to support that assertion. There was no evidence of payment of tribute to the appellants as overlords, which is the main incident of customary tenancy.

Indeed, customary tenancy involves the transfer of an interest in land from the customary landlord or overlord to the customary tenant and which interest entitles the customary tenant to exclusive possession of the land and which interest, subject to good behavior, he holds in perpetuity. See Damulak Dashi & Ors v. Stephen Satlong & Anor (2009) LPELR-929 (SC) (2009) 5 NWLR (Pt. 1134) 281. In view of the fact that the case of the plaintiffs, now appellants was anchored on customary tenancy, the learned trial Judge ought to have relied on evidence led before him in that respect.

When he entered judgment for the appellants herein, it was done without evidence. Put differently, the judgment was not supported by evidence before it.

No wonder the Court below stated on page 386 of the record that:- “Despite this clear lack of proof of the customary tenancy, the learned trial Judge, relying entirely on the evidence of traditional history of the parties’ linkage with Akinbade, adjudged the defendants to be customary tenants of the plaintiffs.” The Court of Appeal concluded on pages 387-388 as follows:- “On the whole, it is my conclusion that in the absence of proof of the alleged customary tenancy, which is the foundation of the plaintiffs/respondents’ claim, the presumption of ownership which inures in favour of the defendants/ appellants remains unrebutted.

The result is that the plaintiffs/respondents’ claim fails and is liable to be dismissed. I hold that the counter-claim succeeds.” I agree. The evidence led by the appellants at the trial Court was not enough to upstage the holding of the respondents over 159 years on the land.” In the portion of the lower Court’s judgment, quoted above, that Court correctly found, as a fact, that the appellants neither pleaded incidences of customary tenancy nor proved customary tenancy, both in suit no.

AHC/25/1983 and AHC/44/1984, which made the case in the two suits unsustainable, having failed to prove their claim of a relationship of customary tenancy between the appellants and the respondents in the two suits, especially in suit no.

AHC/44/1984. ​While the appellant specifically raised ground 21 in the notice of appeal, against the issue of lack of pleading, the appellants failed to raise any ground of appeal on the lower Court’s specific finding of fact, on lack of proof of customary tenancy, which implies that the appellants conceded that the finding of the lower Court is valid and accepted. As an appellate Court, the finding of the lower Court to the effect that the appellants did not prove the customary tenancy remains inviolate and unshaken in this appeal.

Thus, the statutorily prescribed presumption of ownership in favour of the respondents remains intact and the lower Court was right to hold that the appellants did not prove their case. The law will take its course even where the respondents did not lift a finger at the trial, based on the state of pleadings, failure of the appellants to prove customary tenancy and statutory presumptions to be deduced, mandatorily, by the lower Court. At this point, this judgment may be concluded, and the appeal of the appellants dismissed because it, obviously, does not have any merit.

However, the complaint made by the appellants that the lower Court should not have considered acts of ownership and possession where traditional history of evidence fails needs to be responded to. ​The five ways by which title to land may be proved are as follows: a. by traditional evidence; b. by production of documents of title; c. by acts of a person or persons claiming the land such as selling, leasing, renting out or farming on it; d. by acts of long possession and enjoyment of the land; and e. by proof of possession of connected or adjacent land. See Piaro v.

Tenalo [1976] 12 SC 31 and Idundun v. Okumagba [1976] 9-10 SC 277. Where evidence of tradition is relied on in proof of declaration of title to land, it is well settled that the plaintiff, to succeed, is bound to plead and establish facts such as:- (i) Who founded the land; (ii) How he founded the land and (iii) The particulars of the intervening owners through whom he claims. See Akinloye v. Eyiyiola [1968] NMLR 92; Piaro v. Tenalo & Anor [1976] 12 SC 31 at 41; Olujinle v. Adeagbo [1988] 2 NWLR (Pt. 75) 238; Adejumo v. Ayantegbe [1989] 3 NWLR (Pt. 110) 417; and Anyanwu v.

Mbara [1992] 5 NWLR (Pt. 242) 386 at 399.

​Where acquisition of title by settlement is pleaded, that perhaps is all that the plaintiff will be required to prove to succeed, with the traditional history as to who first settled on the land providing fitting background to the evidence of length of time, acts of ownership had been taking place on the land. It is right, of course, to use recent facts as a test of the probability of traditional history, but recent facts must be of such quality and character as would lead to the probability of traditional history. See Aseimo v.

Abraham [2001] 16 NWLR (Pt. 738) 20 at 32-33. ​The lengthy passage quoted above shows that the lower Court actually compared the evidence led before it, before arriving at the finding that the respective cases of the parties conflict. The appellants’ counsel has not provided any evidence or argued that the lower Court was wrong when it held that there is conflict in the respective traditional histories given by the parties. Rather, the wrongful complaint, from the appellants, is that there should have been evaluation of evidence.

In fact, in paragraph 3.2.1 of the appellants’ brief of argument, appellants’ counsel confessed and stated as follows: “At the Court below, the parties placed reliance on their traditional histories in proof of their root of title to the land in dispute.

While Appellants pleaded and proved vide oral evidence, that their ancestor, Egunughan was the first person to disvirgin the land in dispute and other land surrounding it including Egboama and Kala-Ogbogolo in Edumogbokoo land which were granted to the Respondents’ ancestor, Egbo, the Respondents on the other hand claimed that it was their ancestor, Ogbogolo who first disvirgined the land in dispute including the entire Edumogboko land which he founded.

Parties also relied on their respective survey plans in support of their oral traditions, [Exhibits C1, C14, D1]. 3.2.2 At the trial, the Appellants, in line with their pleadings, led uncontroverted evidence to prove their root of title predicated on their traditional history.

In sharp contrast, the Respondents led evidence that is in total conflict and at variance with their pleadings and their survey plans, Exhibits C1, C14 regarding their claim of Ogbogolo being their ancestor who deforested the entire Edumogboko land including the land in dispute.” ​There can be no better acknowledgement of conflicting positions of the parties in their traditional history than the above statements. Depending on style of writing the judgment, evaluation of evidence may not be necessary because the Court is not allowed to act on such conflicting traditional histories.

Often times, there is conflict as to the traditional history which had been handed down by word of mouth from the progenitors of parties to a case. In this regard, it must be recognized that, in the course of transmission from generation to generation, mistakes often occur without any dishonest motives whatsoever. Witnesses of the utmost veracity may speak honestly but erroneously as to what took place a hundred or more years ago. Where there is a conflict of traditional history, one side or the other must be mistaken, yet both may be honest in their belief.

In such a case, misdemeanour is of little guide to the truth. The best way is to test the traditional history by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is the more probable. The decision in Kojo II v Bonsie [1957] 1 WLR 1223 formulated a principle meant to show a Court how to arrive at a just decision when a Court is faced with conflicting traditional evidence.

The lower Court in this appeal took a valid course, after it observed from the evidence and records before it that there was conflict between the rival traditional histories presented by parties, and adopted the solution provided in the case of Kojo II v. Bonsie (supra). When the evidence of a witness supports the case of the opponent against whom he purports to give evidence, that opponent is entitled to take advantage of the evidence to strengthen his case.

That will be an admission against the interest of the party that called the witness and the admission is relevant and admissible evidence. See Onisaodu v. Elewuju [2006] 13 NWLR (Pt. 998) 517 at 529-530. ​The fact that the appellants failed to prove title to the land in dispute is clear from the evidence of DW 3, under cross-examination, at page 420 of the record of appeal. The evidence to be recalled here is against the background of the fact that the appellants claimed that the land in dispute was founded by their progenitor, known as Egunughan.

However, when DW 3 testified, he answered questions with answers pointedly asserting that the land in dispute was founded by one Emesu, whose people later abandoned the same, thus: “Q: You know the parcel of land the Emesu people are claiming against your community and the Claimants’ Community A: Yes Q: In that case you and your people are saying that the land originally belonged to Emesu people but they abandoned it for your people A: That is true Q: This land you said Emesu people abandoned for you was founded by Emesu the ancestor of Emesu people A: I do not know Q: It is correct to say that your ancestor did not found any land belonging to Emesu A: Yes Q: Do you know the following towns (i) Obranyi (ii) Emesu (iii) Egulughan (iv) Owerewere (v) Okobo and; (vi) Aminibokor.

A: I know them Q: These towns are intimately related because of the Abua blood flowing in their veins A: Yes and we have boundary with them Q: These towns put together are under one umbrella known as Emughan Clan A: Yes Q: All these Abua Town in Emughan Clan are all located on one side of the Orashi River A: Yes Emesu is mentioned in the appellants’ pleading, quoted above, but not as the founder of the land in dispute. ​In the evidence of DW 3, quoted above, he named a few Abua towns, which are connected to the appellant’s Egunughan community, which implies that one of them, known as Obranyi, is different from the appellants’ community.

Thus, while the appellants claim to have given the land to the respondents, as their customary landlords, DW 1 testified under cross-examination, as quoted above, and it bears repetition, that it was the Obranyi community which gave land to the respondents.

At page 405 of the record of appeal, under cross-examination, DW 1 stated: Q: These 3 Ogbogolo village are located on another side of Orashi River different from where Emunughan Clan is located A: Yes but Obranyi gave them the land It is a principle long established and followed in series of decided cases that where a plaintiff’s ancestor was the original founder of the land in dispute, the presumption will be that the plaintiff as his successor-in-title will continue to be the owner of the land in dispute, until the contrary is proved. See George Onobruchere v.

Esegine (1986) 1 NWLR (Pt. 19) 799 at 807; Runsewe v. Odutola (1996) 4 NWLR (Pt. 441) 143; and Alli v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 206.

The respondents proved that Ogbogolo established the land in dispute at the trial before the lower Court. ​At pages 457-461 of the record of appeal, in its judgment, the lower Court admirably and dutiful made findings on the presence of oil installations on the land in dispute at the instance of the respondents; the absence of a juju shrine on the land in dispute, contrary to the claim of the appellants, as evidence that there is no merit in the case of the appellants.

In the face of these grave contradictions in the case of the appellants, the lower Court was simply correct to have held that the appellants did not prove their acts of ownership or their case, as it said at page 461 of the record of appeal. On the contrary, the lower Court justly found, based on the state of pleadings and evidence before it, (especially, in my view, with the solid and uncontroverted evidence of CW 1 – Dr.

Epegu Marabai David, from Enelogu community; and, CW 2 Ayipia Mark, from Ozochi community, both of whom are boundary neighbours to the land in dispute), that the respondents proved their case and were deserving of judgment in both suit nos. AHC/25/1983 in which it granted respondents’ prayers and AHC/44/1984, in which it dismissed the claim of the appellants.

The evidence of CW 5 was also not controverted and solid in all its ramifications, in proving the founding and ownership of the land in dispute. ​The point must also be made that the appellants’ counsel was improperly referring to the expunged exhibit C14, an amended survey plan, in this appeal. An expunged document at the trial by the lower Court cannot form part of documents to be considered on appeal, except there is a specific ground of appeal and specific prayer seeking the reversal of the order of expunction and the re-introduction of such document into the consideration of the appeal.

Those factors are lacking in this appeal. In any event, exhibit CW 14 should not have been allowed into evidence because the respondents to whom it was ascribed, but who did not tender the document or rely on it, had made the Court aware that they were no longer going to rely on the survey plan, having amended it to produce exhibit C1, which fact was confirmed by their Surveyor, CW 3 – Badume Omasikwem Ejekwu – at the trial of the suit on appeal. The common boundary between the land of the appellants and the respondents is the Orashi river.

In addition to the above, learned counsel for the appellants engaged himself in quoting from evidence given by one Stanley Orukari in cases in a previous judgment of Court in suit no. PHC/11/70, which was not tendered at the trial. That should have been avoided by learned counsel for the appellants, no matter the desperation. When a case has to be tried on the basis of previous judgments tendered and agreed to by both parties, it is not open to the trial Judge to go behind the judgment and quote evidence led in the case to support his own view of what he thought the case itself decided.

It is only the substance of the decisions in previous decisions which are to be considered, not the evidence therein. Another Court of trial has no right to treat previous judgments as if they are pieces of evidence, adduced by the litigants before it, upon which it could proceed to make its own deductions. See Okpa Orewere & Ors. v. Rev. Moses Abiegbe & Ors. (1973) 9 & 10 S.C.1; and Akporue & Anor. v. Okei & Ors. (1973) 12 S.C. 137. See also Aghenhen v. Waghoreghor (1974) 1 S.C. 1. ​Also, the appellants’ counsel sought to rely on an affidavit deposed to by one Stanley K.

Orukari, who was not called to testify at the trial and whose application for joinder as a party was refused by the lower Court. The affidavit of the named person was irrelevant to the proceedings and should not have been introduced. That was gross misapplication of privilege.

Once the application for joinder was refused and dismissed by the lower Court, processes in that proceeding may only be useful at the level of appeal and not for determination of other issues in the trial of the suit in which the deponent of the affidavit was not called as a witness, for the purpose of cross-examination and was not a party to the suit. Taking liberty too far, the appellants’ counsel extensively dwelt on judgment in suit no. PHC/11/70, which was not tendered at the trial in the lower Court.

It was a continuous mixture and insertion of impurities into the argument of the appeal by appellants’ counsel, which was clearly an abuse of the process of this appellate Court. ​The judgment of the lower Court is not perverse. The case of the appellants was properly and appropriately dismissed because it lacked merit. The second issue is resolved against the appellants. In sum, it is my view and holding that there was proper carriage and there was no miscarriage of justice in the judgment of the lower Court. This appeal is dismissed for lacking merit.

The judgment of the lower Court in suit no. AHC/44/1984 is affirmed. Appellants shall pay cost to the respondents in the sum of N250,000.00 (Two Hundred and Fifty Thousand Naira).

TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading in draft, the lead judgment of my learned brother, OLABODE ABIMBOLA ADEGBEHINGBE, JCA. I agree with the conclusion reached therein. I dismiss the appeal for lacking in merit and affirmed the judgment of the lower Court.

PAUL OBI ELECHI, J.C.A.: I had the advantage of reading before now, the draft copy of the judgment prepared and rendered by my learned brother Olabode Abimbola Adegbehingbe, JCA. His Lordship had adequately considered the issues canvassed by learned counsel for the parties before arriving to his conclusion that the appeal is lacking in merit and dismissed consequently. ​I also dismiss the appeal as I do not have anything more to add.

Appeal dismissed.

Judgment

MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): At the trial Federal High Court the appellant, as plaintiff in suit number FHC/L/CS/922/2002, by its amended statement of claim filed on the 8th of October 2003, claimed against the defendants, the respondents herein, jointly and severally for the damage to its vessel “M.P. OSTANKINO” and the attendant loss and expenses by reason of the collIsion with the respondents’ ship M.T, “BATA I” which occurred off-shore Lagos on the 3rd and 4th of August 2002 as a result of the negligence of the defendants, their servants or agents.

In paragraph 1 of its amended statement of claim, the appellant avers the status that entitles it to the grant of the claim by the trial Court thus:- “1. The plaintiffs at all times material to this action are the owners of the M.T. “OSTANKINO” and are a LIMITED LIABILITY company registered in Cyprus”. (Underlining mine for emphasis).

In responding to the foregoing paragraph of the appellant’s amended statement of claim the respondents, in paragraphs 1 and 2 of their amended-statement of defence/counter-claim filed on the 17 th December 2003, aver thus:- “1. SAVE AND EXCEPT as hereinafter specifically admitted the Defendants deny each and every allegation of fact contained in the plaintiffs statement of claim as if each were herein set out and traversed seriatim. 2.

The Defendants are not in a position to either accept or deny paragraph 1 of the statement of claim, the Plaintiff is therefore under a duty to the proof of same strictly.” (Underlining mine for emphasis).

Appellant’s amended reply to respondents’ amended statement of defence/counter-claim dated and filed on 7th October 2007 is silent on the challenge contained specifically in paragraph 2 of the respondents’ amended statement of defence/counter-claim on its legal personality. ]The appellant called a single witness to prove its case through whom eleven Exhibits, DI - DII, none of which is its certificate of incorporation, were tendered.

At the end of trial, Omolojobi J upheld respondents contention, proffered in final addresses of counsel, challenging the juristic personality of the appellant and struck out the suit. ​ Following the dismissal of his appeal at the Court of Appeal, the appellant has appealed to this Court against the concurrent findings of the two lower Courts vide his notice filed on the 17th day of January 2011 containing three grounds.

Parties have filed and exchanged briefs which at the hearing of the appeal, were adopted and relied upon as their respective arguments.

The two issues distilled at paragraph 5.01 of the appellant’s brief of argument as arising for and which will inform the determination of the appeal read:- (1) Whether the Court of Appeal was right in holding that without the production of the certificate of incorporation of the Appellant that the appellant had no legal capacity or locus standi to institute the action against the respondents, when the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties. (2) Whether the Court of Appeal was right in law in refusing and/or failing to consider the other two issues (1 & 3) submitted for determination by the Appellant which arose from the grounds raised in the Appellant’s Notice dated the 9th day of March 2007 and which said issues were argued in the Appellant’s Brief of Argument dated the 6th day of March 2009.

On the 1st issue, learned appellants counsel submits that the lower Court is wrong in its finding that appellant’s failure to produce its certificate of incorporation at the trial Court has robbed it the legal capacity to institute the action ab initio. At no time, it is argued, did parties join issue in their pleadings on the legal capacity of the appellant to institute the action. The lower Court, submits learned appellant’s counsel, wrongly applied the principle enunciated in NDUKA V. EZENWAKU (2001) 6 NWLR (PT 709) 517 and HOUSE OF REPRESENTATIVES V.

SPDC (2010) 11 NWLR (PT 1205) 213 at 251 since the legal capacity of the appellant had not been put in issue by the parties. Were it otherwise, the respondents, it is further submitted; would not have counter-claimed against the very appellant they contend lacks the legal capacity to defend the counter-claim. Relying on CALABAR CENTRAL COOPERATIVE THRIFT & CREDIT SOCIETY LTD & 2 ORS V. EKPO (2008) 6 NWLR (PT 1083) 362 at 392, HOUSE OF REPRESENTATIVES V. SPDC (supra) and G & T INVESTMENT LTD V.

WITT & BUSH LTD (2011) 8 NWLR (PT 1250) 500 at 540,learned appellant’s counsel contends that in the absence of a proper traverse by the respondents to paragraph I of appellant’s amended statement of claim, the issue of appellant’s juristic personality cannot be said to have been put in issue purely on the basis of respondents counsel’s belated submission in their final address at the trial Court. Further relying on ASAFA FOODS FACTORY V.

ALRAINE (NIG) LTD (2002) 12 NWLR (PT 781) 353, learned counsel concludes that respondents general traverse being the only basis of their challenge to the competence of appellant’s suit is unavailing. He urges that it be so-held and the issue resolved against the respondents. ​ On their first issue, which is similar to appellant’s first, learned respondents’ counsel submits that appellant’s silence in its amended reply, given paragraphs 1 and 2 of the respondents response to paragraph 1 of the appellant’s amended statement of claim, is fatal.

The respondents in the two paragraphs of their amended statement of defence and counter-claim, it is asserted, unequivocally put the legal personality of the appellant in issue.

While by the first paragraph in their amended statementof defence/counter-claim the respondents may be said to have made a general traverse to the averment in paragraph 1 of the appellant’s statement of claim, by the further averment in paragraph 2 of their amended statement of defence/counter-claim, it is contended, the traverse ceases to be a general one the latter paragraph having made it very specific whether or not a traverse is general or specific, it is argued, depends on the totality of a party’s pleadings.

It is never the practice to isolate a particular paragraph in a party’s pleading and adjudge, by its token alone, that, the party’s pleading has been generally rather than specifically traversed.

​Paragraph 1 in the respondents’ amended statement of defence/counter-claim must be viewed in the light of the other paragraphs in their pleading in correctly deciphering to be made as the issue/issues the parties had gone to trial upon. In any event, it is further contended, the appellant who claims to be an unnatural legal person is required by law to establish that fact and having failed to, both Courts are right to have struck out the claim. The two Courts, learned respondents’ counsel submits, rightly relied inter-alia on NDUKA V. EZENWAKU (supra), HOUSE OF REPRESENTATIVES V.

SPDC (supra) and MAGBAGBEOLA V. SANNI (supra) in affirming the trial Court’s finding that the appellant having failed to establish its legal personality by proffering the certificate of its incorporation, lacks the locus standi to sustain its claim against the respondents. Further referring to ASAFA FOODS FACTORY V. ALRAINE (supra), OSOLU V. OSOLU (2003) 11 NWLR (PT.832) 609 and REGISTERED TRUSTEES OF THE APOSTOLIC CHURCH ILESHA AREA V.

ATTORNEY GENERAL OF MID-WESTERN NIGERIA (1972) 4 SC 150 at 158 at 159, learned respondents’ counsel urges that the issue be resolved against the appellant. ​ Now, in striking out appellant’s suit, the trial Court at page 204 of the record held as follow:- “To my mind, the aforestated averment contained in paragraph 2 of the statement of defence is enough to put the plaintiff’s counsel on notice that the Corporate existence of the Plaintiff which he described as a limited liability company registered in Cyprus has been called to question by the defendant’s counsel.

He could not have averred more than he did because, the fact that thePlaintiff is a limited liability company is solely within the knowledge of the Plaintiff and probably, its counsel as far as this action is concerned. Therefore, the burden of proving same rests on them.”

The trial judge concluded at page 206 of the record of appeal thus:- “In the instant case, when the Plaintiff is described as a limited liability company and there is nothing before this Court to support that averment in the Plaintiff’s Statement of Claim, the Plaintiff cannot be regarded as a juristic person with legal personality who can sue or be sued in a Court of competent jurisdiction. And such, the Plaintiff is not competent to institute this action. I so hold.”

In dismissing appellant’s appeal and affirming the trial Court’s foregoing findings, the lower Court held firstly as follows:- “The above pleading showed that Respondents joined issue with the Appellant on its legal capacity to maintain an action. The respondents denied the fact that the appellant is a limited liability company. The burden therefore shifts on the appellant to prove it is a limited liability so as to show its legal capacity to sue………” The Court further surmised as follows:- “In the instant case appellant is a foreign company.

Despite adding the word limited to Ostankino Shipping Co. it would not satisfy the requirement of evidence of incorporation. In absence of evidence of incorporation l hold that appellant is incompetent to institute any action at the lower Court. It is only proper juristic person who can sue or be sued. Defect in competence is very fatal to a suit.” (Underlining mine for emphasis).

The Court concluded at page 308 of the record as follows: “In view of the fact that the Court was not properly clothed with jurisdiction to entertain the action abinitio on ground of lack of locus standi, I will invoke S. 15 of the Court of Appeal, Act and order that the suit No. FAC/CS/922/2002 filed by the appellant before the lower Court be and is hereby struck out.” (Underlining mine for emphasis).

This appeal questions the correctness of the foregoing concurrent findings of the two Courts below striking out the suit following the appellant/plaintiff’s failure to prove its right to sue in the first place. It has not been the practice of this Court to interfere with such findings except where the appellant succeeds in establishing that they neither evolved from the evidence on record nor consequent upon correct application of principles. See SERBER V. KARIKARI (1939) 5 WACA 34 and OKAFOR V. ABUMOFUANI (20160 LPELR – 40299 (SC).

It is not being contested by the appellant that for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it there must be a competent plaintiff and a competent defendant. As a general rule only a natural person, a human being, or an artificial person, a body corporate, which the appellant avers to be in paragraph one of its amended statement of claim, are competent to sue or be sued. The law further confers on some non-legal entities the personality to sue or defend an action.

Thus, where either the plaintiff or the defendant is not a legal person, the action is liable to be struck out. See ATAGUBA & CO. V. GURA NIGERIA LIMITED (2005) LPELR-584 (SC), MAERSK LUNE & ANOR V. ADDIDE INVESTMENTS LTD & ANOR (2002) LPELR – 1811 (SC). In THE ADMIN & EXEC OF ESTATE OF ABACHA V. EKE-SPIFF & ORS (2009) LPELR – 3152(SC) this Court restated the principle thus:- “The law is also trite that a non-existing person, natural or legal personality, cannot institute an action. Nor will an action be allowed to be maintained against a Defendant who as sued, is not a legal person.”

It is also trite that the juristic personality of a body corporate is evidenced only by tendering the certificate of incorporation of the company. See BANK OF BARODA V. IYALABANI COMPANY LTD (2002) LPELR – 743 (SC), AFOLABI & ORS V. WESTERN STEEL WORKS LTD & ORS (2012) LPELR-9340 (SC), REPTICO S. A. GENEVA V. AFRIBANK NIG PLC. In J.K. RANDLE V. KWARA BREWERIES LTD (1986) 456 SC 1. Uwais JSC (as he then was later CJN) in his concurring contribution appositely stated thus:- “The appellant sued the respondent as a company incorporated under the Company Act 1968.

He failed to prove the incorporation by the production of the certificate of incorporation. As the averment in the statement of claim that the defendant was so incorporated was categorically denied by the respondent in its statement of defence, the failure to prove the incorporation was fatal to the appellant’s case.” (Underlining mine for emphasis).

In the case at hand the appellant in paragraph one of its amended statement of claim avers being a “LIMITED LIABILITY Company in Cyprus”. The respondents denied the averment and further assert in their amended statement of defence/counter-claim that being “not in position to either accept or deny paragraph 1 of the statement of claim, the plaintiff is therefore under duty to be proof of same strictly”.

It is strenuously argued by learned appellant’s counsel that appellant’s incorporation not having been categorically denied by the respondents its juristic personality has not been put in issue by parties to warrant its proof. Learned respondents’ counsel contends to the contrary.

I entirely agree with learned counsel to the respondents that learned appellant counsel’s insistence that the averment in paragraph two of the respondents amended statement of a defence/counter-claim is a general denial stems from his reading of the paragraph in isolation rather than by reference to the other averments in the party’s pleading. It is an age old rule of practice that to determine a party’s case resort must be made tothe entire averments in-the party’s pleadings. Considering a few paragraphs of the pleading in isolation militates against a complete flow of the party’s story.

See AGI V. P.D.P. & ORS (2016) LPELR 42578 (SC) and ATTORNEY GENERAL OF ANAMBRA STATE V. C. N. ONUSELOGU ENTERPRISES (1987) LPELR – 614 (SC).

A comprehensive examination of the respondents’ amended statement of defence/counter-claim reveals very clearly that parties herein have joined issue on the juristic personality of the appellant thereby making proof of same by the appellant necessary.

It is reasonably settled that a defendants resort to a general traverse in the statement of defence in a manner that casts the burden of proving a denied averment on the plaintiff is a convenient and permissible procedure in defining the case on the defendants which parties are to proceed to trial. Doing so constitute specific traverse of the facts averred to by the plaintiff.

By asking the appellant to prove the fact of its incorporation, the respondents who are in no position of knowing the fact of appellants incorporation have effectively traversed appellants assertion of being a corporate body. See UMESIE V. ONUAGULUCHI (1995)LPELR – 3368 (SC), MANDILAS & KARABERIS LTD V. LAMIDI APENA (1969) LPELR 25559 (SC), AKINTOLA & ANOR V. SOLANO (1986) LPELR – 360 (SC) and DAIRO & ORS V. REGISTERED TRUSTEES OF THE ANGLICAN DIOCESE (2017) LPELR -42573 (SC)

Learned appellant’s counsel seems to suggest that having failed to join issue in their amended statement defence/counter-claim with the appellant on the latter’s juristic personality, the respondents have completely compromised their right to challenge the trial Court’s jurisdiction. Learned counsel appears oblivious of the dichotomy in the Court’s procedural and substantive jurisdiction. Simply put, the one is circumscribed by Court rules while the other is as statutorily delineated.

While it is settled that the right to challenge a Court’s procedural jurisdiction may be waived by a party, it is trite that neither the Court nor the parties before it can confer on the Court a jurisdiction it statutorily lacks. See DR. MUSA NAGOGO V. C.P.C. & ORS (2012) LPELR – 15521 (SC), AG KWARA STATE V. ADEYEMO & ORS (2016) LPELR – 41147 (SC) and IKECHUKWU V. F.R.N. & ORS (2015) LPELR – 2445 (SC). In MOBIL PRODUCING (NIG) UNLIMITED V.

LASEPA & ORS(2002) LPELR -1887(SC) this Court in dwelling on the two types of the Court’s jurisdiction inter-alia enthused as follows:- “Notwithstanding that, sometimes, the distinction between substance and procedure is blurred, it is generally accepted that matters (including facts) which define the rights and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or tribunal in going into matters in controversy or litigated before it are matters of procedure regulated by procedural Law.

Facts which constitute a cause of action are matters of substance and should be pleaded, whereas facts which relate to how a party is to invoke the jurisdiction of the Court a remedy pursuant to his cause of action is a matter of procedure outside the realm of pleadings……….. ‘generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and procedural rules govern the mode or machinery by which the right is enforced'” See also HUSSAIN ISA ZAKIRAI V. SALISU DAN’AZUMI MUHAMMAD & ORS (2017) LPELR – 42349 (SC).

In applying the foregoing principles to the facts of the instant case, it is evident that beyond respondents’ objection to the trial Court’s jurisdiction as raised in parties’ pleadings, which is procedural, the further objection raised in learned respondents counsel’s address at the close of the case pertains the Court’s substantive jurisdiction as statutorily circumscribed. By Section 6 (1) and (6)(b), the trial Court is only competent to adjudicate between juristic persons.

In the instant case, appellant’s juristic personality as raised challenges both the Court’s procedural and substantive jurisdictions. It is therefore manifestly unwise for learned appellant’s counsel to insist that the overriding issue can be discountenanced by the Court as the challenge to its jurisdiction only rests on non joinder of issue.

Furthermore, by Sections 131 – 137 of the Evidence Act, the appellant must bear the burden of that which it asserts. See PATRICK ZIIDEEH V. RIVERS STATE CIVIL SERVICE COMMISSION (2007) LPELR – 3544 (SC) and CHIEF EYO EDEM NSEFIK & ORS V. ROSEMARY MUNA & ORS (2013) LPELR – 21862 (SC).

Thus whether respondents objection to the trial Court’s competence is on account of either the state of pleadings of parties, the burden of proving those facts it asserts or, still, pursuant to Section 6(1) and (6) (b) of the 1999 Constitution (as amended) which provides for parties to any dispute the trial Court is competent to enquire into and determine, appellant’s failure to tender its certificate of incorporation in proof of its juristic personality, as rightly held by both Courts below, is fatal.

Appellant’s first issue is resultantly resolved in favour of the respondents.

It is academic to consider appellant’s second issue for the lower Court’s non consideration of appellant’s issue would only have become relevant if the trial Court which decision was to review, had the jurisdiction to determine appellant’s suit in the first place. It did not. The lower Court also lacked the jurisdiction to consider and determine any issue arising from the trial Court’s judgment arrived at without jurisdiction. I so hold.

​As a whole, the concurrent judgments of the two Courts below are hereby further affirmed. Parties are to bear their respective costs.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Musa Dattijo Muhammad, JSC, obliged me with the draft of the leading judgement just delivered. I agree with His Lordship that this appeal is devoid of merit. It, therefore, deserves to be dismissed.

It is, indeed, surprising how counsel for the appellant underrated the formidable submission of the respondents’ counsel on the question of the legal capacity of his client. I had always, believed that, following the outcome of a long line of cases, our Courts should not no longer be burdened with this question.

Such cases include Olu of Warri v Chief Sam Warri Esi (1958) 3 FSC 94; Agbonmagbe Bank Ltd v. G. B. Ollivant Ltd and Anor (1961) ANLR 125; Ataguba and Co v. Gura Nigeria Ltd(2005) LPELR – 584 SC); Maersk Line and Anor v. Addide Investments Ltd and Anor (2002) LPELR – 1811 (SC); The Administrator and Executor of the Estate of Abacha v. Eke – Spiff and Ors (2009) LPELR – 3152 (SC) and so on.

True, indeed, I, always, entertained the view that every lawyer should know that our law attributes juristic personality, that is, the capacity to maintain and defend actions in Court to natural persons and artificial persons or institutions, Reptico S. A. Geneva v. AfriBank Nig Plc (2013) LPELR – 20662 (SC); Attorney General of Federation v. All Nigeria Peoples Party and Ors [2003] 12 SCM 1, 12; [2003] 18 NWLR (pt. 851) 182; [2003] 12 SC (pt. 11) 146.

They are, therefore, known to law as legal persons, Alhaji Afia Trading and Transport Company Ltd v Veritas Insurance Company Ltd 4 NWLR (pt. 38) 802. The consequence of the above formulation is that only natural persons or a body of persons whom statutes have, either expressly or by implication, clothed with the garment of legal personality can prosecute or defend law suits by that name, Knight and Searle v. Dove (1964) 2 All ER 307; Admin Estate of Gen. SanniAbachav Eke-Spiff and Ors (2009) 3 SCM 1; [2009] NWLR (pt. 1139) 92; Bank of Baroda v. lyaiabani Coy Ltd [2002] 12 SCM 7; J. K.

Randle v. Kwara Breweries Ltd [1986] 6 SC 1.

​From a conspectus of a host of Supreme Court decisions, we are emboldened in our view that the only permissible mode of proving the legal personality of Incorporated Trustees under Part C of CAMA, or Registered Trustees under the old Land (Perpetual Succession) Act, when the adversary has not admitted that status to the plaintiffs, is by the production in evidence of the certificate of incorporation issued by the Corporate Affairs Commission [CAC], Reptico S. A. Geneva v. AfriBank Nig Plc (supra); ACB Nig Plc and Anor v. Emostrade Ltd {2002) LPELR – 207 (SC).

Thus, where a group of persons claim to have been registered as Incorporated Trustees under Part C of CAMA, they have to produce their certificate of incorporation, as nothing else would suffice, ACB Nig PLC v. Emostrade Ltd (supra). In effect, for Incorporated Trustees to establish their juristic personality, except if it is admitted by the opposing party, they must tender their certificate of incorporation under Part C of CAMA.

It is, thus, not enough to describe themselves as Incorporated Trustees, Bank of Baroda v. lyalabani Company Limited, [2002] 12 SCM 7. ​Indeed, there is even a binding authority which favours the view that the status of Incorporated or Registered Trustees can only be established as a matter of law by the production in evidence of the certificate of incorporation under Part C of CAMA, whatever may be the admission of the defendants, Registered Trustees of Apostolic Church v. AG Mid-West (supra); Geneva v. AfriBank (supra); J. K. Randle v. Kwara Breweries Ltd [1986] 6 SC 1.

The provisions of Section 2 Subsections (1) and (3) of the Land (Perpetual Succession) Act [now defunct], in parimateria with Section 673 (1); (2) and Section 679 (1) of the Companies and Allied Matters Act, 1990 [CAMA, for short], fell for construction in Registered Trustees, Apostolic Church v. Attorney General, Mid-Western State and Ors [1972] ANLR (Reprint) 359. Sowemimo JSC (as he then was), reading the judgement of the apex Court, held that: Although evidence was led as to named persons being made trustees, the certificate of incorporation was never produced.

It is therefore clear that unless the plaintiffs could comply with Section 6 of the Act [see, now Section 679 (3) of CAMA], they have no power to sue or be liable to being sued… In view of the above provisions of the Act, the plaintiff having failed to prove their incorporation by the production of their certificate of incorporation, have no power to sue…In the circumstances, the plaintiffs/appellants’ claim must fail… [Italics for emphasis]

​In all, the burden of proving their status as Incorporated Trustees, therefore, lies on the persons who made such positive assertion about their incorporated status, Section 135 of the Evidence Act [then applicable to the proceedings]; Elias v Omo Bare [1982] 5 SC 2; Elias v. Disu (1962) 1 All NLR 214; Woluchem v. Gudi [1981] 5 SC 291; Agala and Ors v. Egwere and Ors [2010] 5 SCM 22, 37.

It is for these, and the more elaborate, reasons in the leading judgement that I, too, shall enter an order dismissing this appeal. I abide by the consequential orders in the said leading judgement. Appeal dismissed.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have had the privilege of reading before now, a draft of the erudite judgment of the majority of the full Court just delivered by my learned Brother HON. JUSTICE MUSA DATTIJO MUHAMMAD JSC. I agree with the reasoning and conclusions contained therein.

This appeal is based on the concurrent findings of facts by the High Court and the Court of Appeal that the Appellant is not a juristic person and therefore lacks the capacity to institute this suit. ​ The issues raised by both sides to this appeal are settled, and I am persuaded after reading the record and the Briefs of Counsel that these issues distilled are clear and sufficient to be used to determine the Appeal, they are: – ISSUE 1 Whether the Court of Appeal was right in holding that the Appellant had no legal capacity or locus standi to institute the action against the Respondents.

ISSUE 2 Whether the Court of Appeal is bound to consider all issued in controversy before it before giving its Judgment.

OPINION ISSUE 1 The crux of the first issue is whether the Appellant has legal capacity, that is, whether it has a juristic personality separate from its owners. A perusal of all pleadings filed from the origin of this suit would show that the Appellant was at all times material to this action was referred to as “The Owners of M. T. OSATANKINO” a limited liability company registered in Cyprus. The Appellant in paragraph 1 of its amended statement of claim stated:- “The plaintiffs at all times material to this action are the owners of the “M.

T OSTANKINO” and are a limited company registered in Cyprus”

The Respondents in their amended statement of defense responded thus: “The defendants are not in a position to either acceptor deny Paragraph 1 of the statement of claim, the plaintiff is therefore under a duty to proof (sic) same strictly”

Therefore, the Respondents joined issue with the Appellant by the pleadings, thus, shifting the burden to the Appellant to prove that it is a limited liability company capable of being sued and to sue in its own name. The Appellant erroneously contended that the relevant issue was its claim against the Respondent and not its legal personality. The trial Court held that the onus had shifted to the Appellant to prove its corporate existence.

The Companies and Allied Matters Act, 2019 in Section 78. (1) provide thus: Subject to Sections 80 – 83 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than the receipt of notices and other documents, as matters preliminary to incorporation under this Act.

Therefore, the ascertainment of the corporate identity of the Appellant is indeed relevant to the success of its claim.

In Nduka v. Ezenwaku (2001) 6 NWLR Pt. 709 Pg. 494 at Pg. 517 the Court of Appeal held that the only way to prove the existence of a company when such is challenged, is the production of the Certificate of Incorporation of the company.

Similarly, Section 41(6) of The Companies and Allied Matters Act, 2019 reads: – 41(6) Certificate of incorporation shall be prima facie evidence that all the requirements of this Act in respect of registration and matters precedent and incidental to it have been complied with and that the association is a company authorized to be registered and duly registered under this Act.

The irrefutable position of the law is that upon incorporation, a company becomes a body corporate i.e. it acquires a separate legal personality with autonomous identity, it can sue and be sued in its own name, own and dispose of property and enter into contracts etc. See Marina Nominees v. F.B.I.R. (1986) 2 NWLR Pt. 20 Pg. 48; Afolabi v. Western Steel (2012) 7 SCNJ 48 at Pg.68. The age-long general rule of corporate legal personality was laid down in the locus classicus case of Salomon v. Salomon (1897) AC 22.

See also The Registered Trustees of Master’s Vessel Ministries Nigeria Incorporated v. Rev. Francis Emenike & Ors (2017) LPELR-42836(CA).

A lawsuit is in essence, the determination of legal rights and obligations of the parties in any given situation. Therefore, only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to the suit before the Courts of law. Following this general rule, where either of the parties is not a legal person capable of exercising legal rights and obligations under the law, the other party may raise these facts as a preliminary objection.

In other words, no action can be brought by or against any party other than a natural person or persons unless such party has been given by statute, expressly or impliedly or by common law, either a legal personality under the name by which it sues or is sued or a right to sue or be sued by that name. See EMCO & Partners Ltd & Ors v. Dorbeen (Nig) Ltd & Anor (2017) LPELR-43453(CA)

By the pleadings of the parties, it is glaring that the issue of the legal personality of the Appellant was an issue for determination between the parties as it goes to the foundation of the suit and the jurisdiction of the Court to determine same. The Appellant had enough time from when the litigation started up till the appeal to have settled this issue by substituting another party but it failed and refused to do so.

Therefore, based on the pleadings of both parties and the evidence led at the trial as well as the concurrent findings of the lower Court, I hold that the Appellant had no legal capacity to institute the action against the Respondents thereby making the suit and any subsequent appeal incompetent.

ISSUE 2 On the second issue for determination, the Court of Appeal was wrong in its refusal to determine all the issues in controversy. The lower Court in its judgment dismissed the case of the Appellant in its entirety and held as follows at Pg. 242 of the Record of this appeal: “…bearing the aforesaid in mind, I am to state that it is a condition precedent to the exercise of jurisdiction that a competent party is before the Court.

In this instant case, where the Plaintiffs Statement of Claim, the Plaintiff cannot be regarded as a juristic person with legal personality who can sue or be sued in a Court of competent jurisdiction to institute this action and I so hold. In conclusion therefore I found as follows: – 1. That the 4th defendant M.T Bata 1 was not negligent in the manner in which she was brought out of the side of the Plaintiffs vessel M. T Ostankino on the 3rd and 4th of August 2003 2. That the defendants are not liable for the various claims put by the Plaintiff 3.

There is no evidence before this Court to prove that the plaintiff who is described as a limited Liability company in the Statement of Claim is in fact a limited liability company. And as such it cannot be regarded as a juristic person capable of instituting this action”

​A penultimate Court should determine all issues in controversy before it, as it does not enjoy the luxury of a final Court which may not go further after the issue of jurisdiction is resolved. Section 22 of the Supreme Court Act 2011 Cap 424 provides that the Apex Court has very wide powers in respect of matters brought before it.

It may make an interim order or grant an injunction which the Court below is authorized to make or grant and may direct any necessary enquires or account to be made or taken and generally shall have full jurisdiction over the whole proceeding as if the proceeding had been instituted and prosecuted in the Supreme Court as a Court of first instance and rehear the case in whole or in part. Hence, by this Section, this Court may make an order for determining the real question in controversy in the appeal. See also, Section 137(1) of the Evidence Act. Similarly, in Vincent Egharevba v.

Osagie (2009) 12 SCNJ Pg. 166 at Pg. 188 SC this Court held thus; “This Court has said it over and over again that any issue properly raised and canvassed before a trial Court or an appellate Court must be given a fair-hearing and considered. This is so in order to avoid a miscarriage of justice, See Ugbodume v. Abiegbe (1991) 8 NWLR (pt.209) 274… The Respondent’s claim could not be left hanging in the air. The Court of Appeal ought to have madeconsequential orders granting him any reliefs which it considered were supported by the evidence before the trial Court.

It would appear that the Court of Appeal did not give enough consideration to the issues before it in its rather hasty and sketchy judgment.”

Therefore, issue two is resolved in favour of the Appellant. However, in the circumstances of the facts of the case where there has been no miscarriage of justice occasioned against the Appellant, I hold that the decision of the Lower Court should not be reversed. It is not every error in the judgment of a Court that leads to the setting aside of the judgment. The error must be so perverse and has caused gross miscarriage of justice. See P. C Mike Eze v. Spring Bank Plc(2011) 12 SCNJ Pg. III; Abiodun v. F.R.N (2018) 11 NWLR Pt. 1629 Pg. 86 SC; Mohammed v.

State (2018) 13 NWLR Pt. 1635 Pg. 60 SC.

Even though it was wrong of the Lower Court to consider the case on the merit, in view of the resolution of issue 1, no miscarriage of justice has been occasioned.

​I am of the humble view that this appeal has no merit and thus the reliefs urging the Court to nullify the orders of the lower Court is hereby denied and the appeal is dismissed. Appeal Dismissed. I abide by the order as to cost.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the lead judgment just delivered by My Learned Brother MUSA DATTIJO MUHAMMAD, JSC. I agree with his reasoning and conclusions contained therein.

This is an appeal against the judgment of the Court of Appeal, holden at Lagos (hereafter called the Court below), delivered on the 12th of January, 2011.

The Appellant, as Plaintiff at the Federal High Court, sitting in Lagos, instituted an admiralty action in rem, against the Respondents, claiming damages for loss suffered as a result of “collision” with the 4th Respondent’s ship which occurred at Offshore Lagos Nigeria, on 3rd and 4th August 2002. The Trial Court in its judgment held that the Appellant failed to prove that it was a juristic person, thereby lacking the locus standi to institute the action. The Appellant’s suit was dismissed. ​ Being aggrieved by the decision of the Trial Court, the Appellant appealed to the Court below.

The Court below in its judgment, affirmed the decision of the Trial Court and held that the Trial Court lacked the jurisdiction to adjudicate over the suit, due to the Appellant’s lack of locus standi.

Still aggrieved by the judgment of the Court below, the Appellant appealed to this Court. Its Notice of Appeal filed on the 17th of January, 2011 is upon two grounds, wherein it formulated two issues for this Court’s consideration. They are: 1.

Whether the Court of Appeal was right in holding that without the production of the certificate of incorporation of the Appellant, the Appellant had no legal capacity or locus standi to institute the action against the Respondents, when the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties? 2.

Whether the Court of Appeal was right in refusing and/or failing to consider the other two issues (1 and 3) submitted for determination by the Appellant, which arose from the grounds raised in the Appellant’s Notice of Appeal dated the 9th day of March 2007 and which said issues were argued in the Appellant’s Brief of Argument dated the 6th day of March 2009.

​The Respondents also distilled two issues for determination, namely: 1. Whether or not the Court of Appeal was right in holding that the failure of the Appellant to prove its legal personality amounts to lack of locus standi to institute the action thereby denying the trial Court the jurisdiction to entertain the suit? 2. Whether or not a Court which lacks jurisdiction to entertain a suit due to a party’s lack of locus standi can determine the merits of the suit?

My Learned Brother has brilliantly dealt with the issues raised in this appeal and I adopt his judgment as mine. However, and just for the purpose of emphasis, I will put in one or two words of mine in answer to the question of whether or not the Appellant is a juristic personality capable of suing and being sued. In other words, does the Appellant possess the requisite locus standi to sue the Respondents?

The Appellant herein has argued that the legal capacity or locus standi of the Appellant to institute the action was not a fact in issue between the parties. With respect to learned Senior Counsel for the Appellant, this is not a true representation of the record before this Court.

At Paragraph 1 of its Amended Statement of Claim, the Appellantaverred as follows: “The Plaintiffs at all times material to this action are the owners of the “M.T. OSTANKINO ” and are a limited company registered in Cyprus”

The Respondents denied the averment and asserted at Paragraph 2 of their Amended Statement of Defence/Counter Claim that: “The Defendants are not in a position to either accept or deny Paragraph 1 of the Statement of Claim, the Plaintiff is therefore under a duty to prove same strictly.”

To my mind, by asking the Appellant to prove strictly the fact of its incorporation, the Respondents who are in no position of knowing whether or not the Appellant is incorporated, have effectively traversed the Appellant’s assertion of being a corporate body and issues having been thus joined on the legal personality of the Appellant, it was incumbent upon the Appellant to prove its legal personality, by producing a Certificate of Incorporation. In Dairo & Ors v.

The Registered Trustees of the Anglican Diocese of Lagos (2017) LPELR 42573 (SC), this Court held that: “The law is trite that the plaintiff who takes out on action must be competent to institute such on action. Whenever hiscompetency to institute the action is challenged the onus is on him to prove that he has legal capacity to institute the action. The competency to institute an action also determines the competency of the action itself …… Once the juristic capacity is challenged, the fact of incorporation becomes a fact in issue.

The onus of proving that fact lies on the party claiming to be incorporated in the name it has taken out the action as the plaintiff. The burden of proof is discharged upon the production of the Certificate of Incorporation. This is a matter of fact.” In the extant appeal, the Appellant’s failure to tender its Certificate of Incorporation in proof of its juristic personality is fatal to its case.

The consequence is that the juristic personality of the Appellant to sue and be sued is not established and the two Courts below were right to hold that the Appellant had no legal capacity or locus standi to institute the action against the Respondents. ​ It is on account of this, and the more elaborate reasons contained in the lead Judgment of My Learned Brother, MUSA DATTIJO MUHAMMAD, JSC that I hold that this appeal is devoid of merit and

I accordingly dismiss it.

I also abide by the consequential orders in the Lead Judgment.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother MUSA DATTIJO MUHAMMAD, JSC granted me the privilege of reading in draft the comprehensive leading Judgment prepared and rendered in this appeal. My lord fully and sufficiently dealt the issue in contention, I am therefore in full agreement with the reasoning and conclusion and adopt the Judgment as mine. I have nothing extra to add. I abide by all consequential orders including the order on costs.