MTN NIGERIA COMMUNICATIONS LTD v.EMEGANO

CITATION: (2016) LPELR-41090(CA)

In the Court of AppealIn the Owerri Judicial Division

Holden at Owerri

ON WEDNESDAY, 22ND JUNE, 2016Suit No: CA/OW/87/2012

Before Their Lordships:

IGNATIUS IGWE AGUBE Justice, Court of AppealITA GEORGE MBABA Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

BetweenMTN NIGERIA COMMUNICATIONS LIMITED - Appellant(s)

AndBARRISTER EMEKA EMEGANO(SUING AS ATTORNEY TO THE FAMILY OFONYEWUEKE OF UMUAKAJE, UMUSEKE,OKWUDOR, NJABA L.G.A, IMO STATE)

- Respondent(s)

RATIO DECIDENDI

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1. ACTION - REPRESENTATIVE CAPACITY: Requirements for suing in a representative capacity"In the resolution of this first issue, I must not fail to remark that the general position of the Law thatwhere, as in this case, the Respondent sued in representative capacity of the family of Onyewuekeof Umuakaje, Umuseke, Okwudor, Njaba, Local Government Area, Imo State, he is the sole Plaintiffand as has been held in Otapo V. Sunmonu (1987) 2 NWLR 587, he assumed the position of dominusLitis until Judgment since he had/has stepped into the shoes of the Family that donated the Power ofAttorney in his favour to prosecute the matter on their behalf. He only ceases to have the powersconferred on him at the end of the case and after judgment (Okonji V. Njokanma (1989) 4 NWLR 161refers) and if he happened to abandon the case it was left for the trial Court to substitute for him oneof those represented as if the substituted member of the family had been in the action from the timeof its commencement.Accordingly, what is needed in circumstance of where a party sues in representative capacity is theindication of such capacity under the party???s name in the title of the suit. ???Thus???, as explainedby the learned Author and Senior Advocate of Nigeria, Fidelis Nwadialo in his Civil Procedure inNigerian second Edition, University of Lagos Press, 2000 at Page 116 Citing Re Tottenham (1896)and the Nigeria cases of Ede V. Udegbo & Ors. (1961) NWLR 9 and Nta V. Anigbo & Ors. (1972) 5 SC;???If a party, ???A. B.??? is representative Plaintiff for the members of a Club ???X???, he should bementioned in the title of the Suit as, ???A. B??? ... Plaintiff ???(On behalf of himself and members of???X???)???.???The same Statement as to capacity must bemade in the endorsement of the Writ, in the title and body of the pleadings??? See Ude V. Nwara(1993) 2 NWLR 638.I am not oblivious of the decision of the Supreme Court in Vulcan Gases Ltd. Vs Gesellschaft FurIndustries Gasverwertung A. G. (G. I. V.) (2001) 1 FWLR 1 at 26 paras. D ???G Per Iguh, J. S. C.; whoin a case where one Mr. Okunlola as Counsel had without the authority or Power of Attorney of theRespondent, instituted the action at the trial Court and an Application was subsequently brought tosubstitute learned Counsel???s name with the Respondent, stated the position of the law thus:???I think I ought to observe, in the first place, that this amendment of 24th February, 1997 whichwas not opposed in no small way helped to save this proceeding. This is because, the Donee of aPower of Attorney or an Agent in the presentation of a Court suit on action pursuant to his powersmust sue in the name of the Donor or his Principal and not otherwise. See Timothy Ofodum Vs.Onyeacho (1966/67) 10 ENLR 132; Jones Vs. Gurney (1993) W. N. 72; JOHN Agbim Vs. Mallam GarubaJemeyita (1972) 2 ECSLR 365.-------------------------------------------------------------------------------- -----------------------------------------------------------------------------------------------------------------------------------------Accordingly, have regard to the amendment of the 24th February, 1997, it must be deemed that itwas the Respondent itself that commenced this action in its own name ab initio and all argumentsrelating to whether or not Mr. Okun???lola had the locus standi at the time he commenced theproceeding as a Donee of a Power of Attorney automatically go to no issue.???The contribution of Uwaifo, JSC at pages 51 ??? 55 of the above Judgment is most instructive and it isnecessary to reflect on it as applicable to this Appeal before us. Even in that case where AkinlolaEsq. commenced that action when his capacity was challenged and he subsequently filed the Powerof Attorney which led to the amendment of the writ of Summons and Statement of Claim, theSupreme Court unanimously agreed that the said learned Counsel ab initio had the locus standifollowing the amendment to reflect his true capacity.???At page 51 paragraphs G ??? H to page 52 Paras A ??? H; the Emeritus Law Lord reasoned ratherinstructively and refreshingly that:???In the case of a Plaintiff in a representative action, it is generally understood that he claims torepresent numerous other persons having the same interest, including himself, so that every personso represented, though not named on the Record, is a party to the action. It is always the issue ofcommon interest. Rules of different Courts make adequate provisions for representative action. See,Idise Vs. Williams International Ltd. (1995) 1 NWLR (PT. 370) 142; Ovenseri Vs. Osagiede (1998) 11NWLR (Pt. 572) 1. See also Detart Vs. Stevenson (1876) 1 Q. B. D. 313; Prestney Vs. Mayor & Corp. ofColchester (1882) 21 Ch. D. 111; Bedford (Duke of) Vs. Ellis (1901) A. C. 1. ..."Per AGUBE, J.C.A. (Pp.33-37, Paras. D-D) - read in context

2. ACTION - REPRESENTATIVE ACTION: Essential condition for sustaining a representative action"???There is no doubt that Order 16 Rule 1 of the Rule of Supreme Court provides that: ???A personholding the Power of Attorney and suing on behalf of his principal should sue in the name of hisprincipal only."Per AGUBE, J.C.A. (P. 42, Paras. D-E) - read in context

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3. ACTION - COMMENCEMENT OF ACTION: Effect of commencing an action by a wrong or improperparty"However this action was commenced in the High Court of Imo State of Nigeria at the NkwerreJudicial Division and as the 1st day of April, 2008 when the writ of Summons was issued at theinstance of the Plaintiff (now Respondent) the High Court of Imo State (Civil Procedure) Rules of ImoState, 2008 had become operative. the makers of the Rules must have anticipated frivolousobjections of the nature which have now become the hallmark of legal practitioners of the likes ofthe learned Counsel for the Appellant when they provided amongst others in Order 13 Rule 34 thusunder Chapter IV of that Order Captioned: ???IV Legal Practitioners???: ???34 where by these Rulesany act may be done by any party in any proceedings, such act may be done either by the party inperson, or by his legal Practitioner, or his agent (unless an agent is expressly barred under theseRules???.Besides, even if the Respondent commenced the action in the name of the wrong person as claimantOrder 13 Rule 2 expressly stipulates that;???Where an action has been commenced in the name of the wrong person as Claimant or where itis doubtful whether it has been in the name of the right claimant, a Judge may order the substitutionor addition of any other person as claimant on such terms as may be just."Per AGUBE, J.C.A. (Pp.42-43, Paras. E-E) - read in context

4. ACTION - REPRESENTATIVE ACTION: Effect of bringing a representative action"???At page 18 of the Records the Plaintiff who had stepped into the shoes of the family claimed thedamages on behalf of the family and whatever damages is awarded subsequently shall go to thefamily by virtue of the terms of the Power of Attorney donated to the Plaintiff. This is a species ofrepresentative action and accordingly, both the named Plaintiff and those represented are parties tothe Suit although the Plaintiff/Attorney to the family is dominis litis until the suit is determined.Having initiated the suit on behalf of the family, the Respondent has duly reflected the name of thefamily for and on behalf of whom the Suit was instituted so long as the mandate of the familyremains accepted and uncountermanded. Therefore, any decision arrived at by the Court upondetermination of the suit would bind the family of Onyewueke who claim to be the owners of theland and donated the authority to sue in the plaintiff???s name or any other person or group ofpersons authorized by the Plaintiff to the said plaintiff/Respondent. Accordingly, the family ofOnyewueke of Umuakaje, Umuseke, Okwudor, Njaba local Government Area of Imo State would bedeemed to present throughout the proceedings by the presence of the Plaintiff/Respondent for aJudgment given in favour of the Plaintiff/Respondent as an Attorney of the family is for the benefit ofthe family. See pages 110 and 111 of Civil Procedure in Nigeria second edition by Fidelis Nwadialo,SAN and the cases of Okeke V. Olughor (1995) 5 SCNJ 217 at 226; Ekennia V. Nkpakara (1997) 5SCNJ 70 at 88; Ede V. Nwidenyi, In RE: Ugadu (1988) 5 NWLR 189; Okanji V. Njokanma (1989) 4NWLR 161 at 169, Opebiyi V. Oshobajo & Anor (1976) 9 ??? 12 S. C 195 at 200, Olapo V. Sunmonu(1987) 2 NWLR 587, Pabiekun & Ors. V. Ajayi (1966) 1 ALL NLR 197 and Per Tobi in Dr. Augustine N.Mozie & 6 Ors. V. Chike Mbamalu & 2 Ors. (2006) LPELR ??? 1922 (SC) at PP 17 -19 Paras. D ??? B;Okoli & Ors. V. The SURVEYOR ??? General Anambra State of Nigeria (2002) LPELR ??? 242 (SC) at 19Paras A ???D Per Wali, JSC."Per AGUBE, J.C.A. (Pp. 52-54, Paras. D-B) - read in context

5. ACTION - CLAIM(S)/RELIEF(S): Whether the Court can grant a relief not claimed"... Odunze V. Nwosu (supra) and kalio V. Daniel ???Kalio (supra) which rightly decided that a Court isnot a Charitable organization or Father Christmas that would grant Reliefs not sought or claimed byparties gratuitously."Per AGUBE, J.C.A. (P. 76, Paras. B-C) - read in context

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6. ACTION - LEGAL PERSONALITY: What the term "legal personality" entails"In the resolution of this Issue shall from the onset concede to the learned Counsel to the Appellantand the authorities of MAILATIA V. Veritas Insurance (1986) 4 NWLR (PT.38) 802 at 804 andEmecheta V. Ogueri (1996) 5 NWLR (Pt.447) 227 at 231 as ably cited by him that a party who shouldcommence action in Court must be a person known to law that is legal person and that generally annon -juristic person cannot sue or be sued.???By the concept of legal personality as has been espoused by our jurisprudence over the years thegeneral position of the law is that only natural persons, in other words human beings and artificial orjuristic persons (bodies corporate) are seised of the capacity or competence to sue and be sued. InChief Aderibigbe Jacob V. Osho Owonifari (1974) 10 S. C. 157 at PP 163 ??? 165; the Supreme Courtcommenting on theory of legal personality denied a person thus:???In legal theory, a person is any being whom the law regard as capable of rights andduties. There are two kinds of persons distinguishable as natural and legal. A natural person is ahuman being while a legal contemplation such as a joint stock company or Municipal corporation. Injurisprudence, the term applies to corporation such as limited liability companies or MunicipalCorporation; it may also apply to churches, hospitals, or Universities if they are in corporate orregistered as such. Their creation and existence have been aptly described by Salmond in his Book(12. Edition) P. 220??????In Nigeria Nurses Association & Anor V. Attorney-General of the Federation & Ors. [1981] 11 -12S. C. 1 at 12; Obaseki, J.S.C, postulating on this concept posited that since the concept of artificialpersonality came into existence by legal will and fiat, they must necessarily exist only at thepleasure of the law and their extinction or death is called dissolution. On the other hand, thepersonality of a human being commences from birth and ceases to exist at death. At deaththerefore, such a being ceases to possess rights obligations and therefore can no longer be capableof suing and be sued.???What emerges from the above analogies is that like natural persons only those artificial bodies thatby virtue of their incorporation have acquired rights and concomitant obligations or duties areempowered to sue and be sued. The rationale behind this legal concept is that litigation is all aboutthe determination of legal rights and about the determination of legal rights and obligations andaccordingly, only parties with such vested rights or locus standi, who have life either natural orlegislation, can initiate actions or can be proceeded against. See Fawehinmi V. Nigeria BarAssociation (No.2) (1989) 2 NWLR 558 at 595 and Management Enterprises Ltd. V. Otusanya (1987)2 NWLR 179 and in particular ZAIN Nigeria Ltd. V. Alhaji Mohammed Kawu Ilorin (2012) LPELR ???9249 (CA) a decision of the Ilorin Division of this Court, Per Agube JCA at pages 60 ??? 62 Paras. A??? B."Per AGUBE, J.C.A. (Pp. 77-79, Paras. A-D) - read in context

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7. ACTION - REPRESENTATIVE CAPACITY: Nature and effect of instituting a case in representativecapacity on behalf of a family or ruling house???"Luckily for me, in the course of writing this Judgment, I came across the TEXT CIVIL PROCEDUREIN NIGERIA SECOND EDITION, BY FIDELIS NWADIALO, SAN at pages 122 ??? 123??? where thelearned Author of blessed memory commenting on the heading: ???Defence of Family or CommunalProperty by An Individual???,Posited:???A person may institute an action for the preservation of a property which he owns jointly withothers or for his own interest in it. A family land is an example of such property. A member of thefamily may thus sue in personal capacity to safeguard the land. One of the issues in. Sogunle AndOthers V. Akerele And Others. (1967) NWLR 58; was whether the Plaintiffs were right in suing fordeclaration that the land in dispute was their family land. the Supreme Court answered the questionin the affirmative, holding that a member of family may take steps to protect family property or hisinterest in it but that if had not the authority of the family to bring the action, the family would, ofcourse, not be bound by the result, unless for some reasons the family was stopped from denyingthat the action was binding??? per Onyeama, JSC at Page 60 of the Report.???To lay to rest this spurious objection of the learned Counsel nay this frivolous Appeal Order 13Rule 12(1) of the High Court of Imo State (Civil Procedure) Rules, 2008 in anticipation ofdevelopments of this nature as proffered by the learned Counsel for the Appellant, has provided invery clear terms that:???12(1) where more persons than one have the same interest in one suit, one or more of suchpersons may sue or be sued on behalf of or for the benefit of all person so interested???.Again to also lay to rest the question of legal personality of a family? Order 13 Rule 13(1) has madeprovision for representation of persons or classes of persons in certain proceedings concerning???(a) administration of estate or(b) property subject to a trust or(c) land held under customary law as family or community property???Where the persons or class of person members of the class can be ascertained or not ascertained,for the Court for purposes of expedient and efficient procedure, to appoint one or two persons torepresent the person or group/class or member of such Class of persons.Under Rule 4 of Order. 13 of the Rules: ???(4) In the Rule, the word ???class??? includes the personsrecognized by Customary Law as members of a family or as members of a land owningcommunity???.???With the above provisions of the Imo State High Court Rules and other Judicial authorities andtexts cited of the Respondent was proper and proper parties with the requisite legal personalitiesempowered the Respondent on behalf of their family to institute the action to protect their jointfamily property."Per AGUBE, J.C.A. (Pp. 91-94, Paras. E-A) - read in context

8. COMMERCIAL LAW - AGENCY: Definition and mode of creating an agency"In Freeman & Lockyer Vs. Buckhurst Park Properties (Mangal Ltd. (1964) 2 Q. B. 480 at 502 andPages 1 Para. 1.01; 6 Para. 1-034 of Bowstead & Reynolds on Agency, 16th Edition having explainedthat the law is settled that one on whose behalf an act is done is called the principal and the onewho is to act is called the Agent. Agency, according to the learned Law Lord, exists between twopersons when one of whom expressly or impliedly consents that the other should act on its behalf soas to affect his relations with third parties and that the other who similarly consent to so act.???According to him, the authority so created is called actual authority express or implied and that itis said that the simplest way that an Agency relationship may arise between Principal and Agent andas regards third parties is by express appointment whether written or oral by the principal. As to themode of creation and scope of authority vested by a Principal Diplock L. J; in the Freeman V.Buckhurst Park Properties (Mangal Ltd (supra) held that:???An ???actual??? authority is a legal relationship between principal and Agent created by aconsensual agreement to which they alone are parties. its scope is to be ascertained by applyingordinary principles of construction of contracts, including any proper implications from the expresswords used, the usages of trade, or the course of business between the parties."Per AGUBE, J.C.A.(Pp. 40-41, Paras. C-D) - read in context

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9. COURT - JURISDICTION: What determines jurisdiction of Court to entertain a cause/matter"In the resolution of this second Issue I must not fail to agree with the submission of the learnedCounsel for the Appellant and the authority of Integrated Timber and Plywood Products Ltd. V. UnionBank of Nigeria Plc. (2006) 12 NWLR (Pt.995) 483 at 489 (see page 502 Paras. D -F); where Ogbuagu,JSC quoted with approval the dictum of Obaseki, JSC in Tukur V. The Government of Gongola State(1989) 4 NWLR (Pt.117) 517, (1989) 9 SCNJ 1 that:???It is a fundamental principle that Jurisdiction is determined by the plaintiff???s claim (Izenkwo(sic) V. Nnadozie) 14 W. A. C. A. 361 at 363 ??? per Goussey, J. A; Adeyemi V. Opayemi (sic) (1976)??? 10 S.C. 31 at 51. In other words, it is the claim before the Court that has to be looked at orexamined to ascertain whether it comes within the jurisdiction conferred on the Court. (See WesternSteel works V. Iron & Steel Workers (1987) 1 NWLR (Pt.49) 284. Judges have no duty and indeed nopower to expand the jurisdiction conferred on them but they have a duty and indeed jurisdiction toexpound the jurisdiction conferred on them. See, African News papers of Nigeria & Ors. V. TheFederal Republic of Nigeria (1985) 1 ALL NLR 50 at 175 (1985) 2 NLR (Pt.6) at 137. See also Per Tobi,JSC In the land mark case ofInakoju V. Adeleke Oladoja???s CASE) (2007) 4 NWLR (Pt.1025) 423 at588; who following previous landmark cases on jurisdiction like Nnonye V. Anyichie (2005) 8 WRN 1at 22, NDIC V. CBN (2002) 18 WRN 1, (2002) 7 NWLR (Pt.766) 272; Elabanjo V. Dawodu (2006) 15NWLR (Pt.1001) 76; Okulate V. Awosanya (2000) 2 NWLR (Pt.646) 530 at 556-557; Adeyemi V.Opeyori (1976) 9 ??? 10 S. C. 31 at 51, Tukur V. Gongola State (supra) Egbuonu V. BRTC (1997) 12NWLR (Pt.531) 29 at 43; restated the position of the law that it is trite that in the determination ofjurisdiction of a Court to entertain and determine a suit the Court process to be used is theStatement of claim and the Relief sought therein."???In that case which was fought by way of Originating summons, the emeritus Law Lord reasonedthat the Court process to be used is the affidavit in support of the Originating Summons and that theCourt will not examine the Counter-Affidavit or statement of Defence even if filed."Per AGUBE, J.C.A.(Pp. 54-56, Paras. F-E) - read in context

10. COURT - JURISDICTION: Importance of jurisdiction in the process of adjudication"In the same case he emphasized the importance of jurisdiction as being a radical and crucialquestion of competence for if the Court of trial as in this case had no jurisdiction to hear the case,the proceedings are a nullity ab initio, however well conducted and brilliantly decided they might be,as a defect in competence is not intrinsic but rather extrinsic, to the entire adjudicatory process.Jurisdiction therefore according to the Emeritus and erudite judicial Icon, ???is the nerve centre ofadjudication; it is the blood that gives life to the survival of an action in a Court of law; in the sameway blood gives life to the human being and the animal race. (Onyeanucheya V. MilitaryAdministrator of Imo State (1997) 1 NWLR (Pt.482) 429; Madukolu V. Nkemdilim (1962) 2 SCNLR341; Barsown V. Cleinessy International (1999) 12 NWLR (Pt. 632) 516; Chief Utih V. Onnoyivwe(1991) 1 NWLR (166) 166 referred. See further A. G. Federation V. Abubakar (2008) 16 NWLR(Pt.1112) 135 at 158 paras. B ??? D Sunday Gbagba righa V. Adikumo Toruem & Anor. (2013) MRSCJ(Vol. 16) 93 at 101 paras. B ???E Per Rhodes-Vivour, JSC."Per AGUBE, J.C.A. (Pp. 56-57, Paras. F-E) -read in context

11. FAMILY LAW - FAMILY STATUS: Definition of the term "family status""In the first place the learned Counsel for the Respondents has aptly cited the case of Okulate V.Awosanya (2000) FWLR (Pt.25) 1666 at 1679 paras. C- D; where. Uwaifo, JSC adopted the definitionof ???family??? as given by the Shorter Oxford English Dictionary Vol. 1, 3rd Edition at page 723 tomean: ???The body of persons who live in one house or under one head, including parents, children,servants, etc????????? The group consisting, of parents and their children whether living together ornot; in wider sense, all those who are nearly connected by blood or affinity??????. Those descendedor claiming descent from a common ancestor; a house, kindred, lineage???.The learned law Lord continued para. F of the same page that: ???In my opinion, family membershipis no more than family affinity or consanguinity or lineage."Per AGUBE, J.C.A. (Pp. 81-82, Paras. E-C) -read in context

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12. LAND LAW - CLAIM FOR TRESPASS AND INJUNCTION: Whether a claim for trespass andinjunction automatically puts title to land in issue"... Nnamani, JSC had in the case of Ranking Udoh & Ors. V. Obot (1989) 1 NWLR (Pt.95) 59 at 64Ratio 15;held that in a claim for trespass, one need not necessarily be the owner of land and thatwhat is required is that the claimant proves exclusive possession not title but that where theclaimant claims damages for trespass and injunction against further trespass, it follows that he hasput his title in issue, which position was buttressed in Odunze & V. Nwosu & Ors. (2007) 13 NWLR(Pt.1-1050) 1 at 53 paras. E ??? F but by Onnoghen, JSC who held that:???Apart from the unambiguous claim of the Respondents for declaration of title, it is settled law thatwhere a plaintiff claims for damages for trespass, as in the instant case, his title to the land allegedlytrespassed upon, title thereby put in issue. In other words for the Plaintiff in such a case to succeed,he must first establish his title to the land in dispute before proceeding to establish possessionthereof."Per AGUBE, J.C.A. (Pp. 58-59, Paras. D-C) - read in context

13. LAND LAW - TRESPASS TO LAND: Whether a claim in trespass is based entirely on possession ofthe land"In my humble view, the claim of the Plaintiff/Respondent in the Lower Court is in the tort of Trespassto land and all that the plaintiff ought to show and prove at the hearing as can be gleaned from hispleadings and Reliefs claimed is that he was in exclusive possession of the land as at the time theAppellant???s trespassed upon the same. This is because Trespass as a tort is actionable at theinstance of a person in exclusive possession. This position of the law had long been established byour Court in a plethora of cases of settled antiquity like Adio V. Fatukasi (1972) 2 U. I. L. R. 51;Adeshoye V. Shivonika (1952) 14 W. A. C. A. 86; Odebanji V. Okunola [1968] N. M. L. R. 221 (S.C)Renner V. Annan [1935] 2 W. A. C. A. 258 Will V. Will (1924) 5 N. L. R. 76; Akpiri V. West AfricanAirways Corporation (1952) 14 WACA 195, and Oluwi V. Eniola [1967] N. M. L. R. 339 (S.C); where itwas variously held that in a case of trespass, the Plaintiff must first establish that he is in possessionof the land at the time of trespass complained of or who is deemed to have been in such possessionat such time of the trespass the rationale being that trespass is an injury to possession rather that totitle. Thus, an owner of land who is legally entitled to possession is ordinarily not competent tomaintain an action in trespass before having possession.???It has therefore been held that possession is so important that a tenant or a licensee inpossession can bring an action in trespass, his possession must be clear and exclusive, but theslightest amount of possession would suffice to entitle the person in possession to recover against amere trespasser. Although an owner of land ordinarily ought not to bring an action in trespass, whereas in this case, the trespasser by the construction of the mast shall cause permanent injury to theland which shall affect the value of their inheritance, they (owners) can bring an action for the injuryto their interest.See Tongi V. kalil 14 WACA 331 followed in Eze V. Owusoh [1962] 1 ALL NLR 138.That all that a claimant in Trespass to land simpliciter ought to show is exclusive possession wasamply demonstrated by Tobi, JSC in the celebrated case of Yekin Adedokun Oyadare V. Chief OlajireKeji & Anor (2005) LPELR - 2861 (SC.) (2005) 7 NWLR (Pt.925) 571, (2005) I. S. C (Pt.1) 19 where heheld inter alia pages 21 ??? 22 paras G ??? C of the LPELR earlier cited thus:???It is trite law that trespass to land is actionable at the suit of the person in possession of the land.The person can sue for trespass even if he is neither the owner nor privy of the owner. This isbecause exclusive possession of land gives the person in such possession the right to retain it and toundisturbed enjoyment of it against all wrongdoers except a person who could establish better title.Therefore, anyone other than the true owner, who disturbs his possession of the land can be sued intrespass and in such an action, it is no answer for the Defendant to show that the title to land is inanother person. To resist the Plaintiff???s claim, a Defendant must show either that he is the one inpossession or that he has a right to possession???See further page 20 paras. A ??? B. where the Emeritus Law Lord earlier held that it is good law thata plaintiff who succeeds in proving acts of possession can obtain Judgment claiming trespass as actsof possession and enjoyment of land could be evidence of ownership or right of occupancy. See alsoper Ogbuagu, JSC in Mather Echere V. Christopher Ezerike & Ors. (2006) LPELR ??? 1000 (S.C) atpages 23 ??? 24 Paras A ??? C; E ??? F, Tukuru V. Sabi (2013) Vol. 222 LRCN (Pt.1) 65 at 86 Paras. EE??? J and page 87 para. A per Ngwuta, JSC."Per AGUBE, J.C.A. (Pp. 59-62, Paras. E-F) - read in context

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14. LAND LAW - TRESPASS TO LAND: Whether trespass is actionable per se"... ordinarily, trespass is actionable per se and the law presumes that damage flows with it,Depending on the degree of damage proved the Appellant would naturally be entitled to Generaldamages but where he has pleaded special damages which he specifically pleaded with particulars,he was expected to adduce evidence in proof of the particulars of special damages at the hearing(see, Adurumokumer of Bakakodia V. Sillo of Omadino 14 WACA 123 at 125 followed inAttah V.Nnacho [1964] 1 ALL N. L.R. 313 S. C. and Aromire V. Awoyemi [1972] 1 ALL W. L. R. 101, (S.C), andif proved would be entitled to such damages."Per AGUBE, J.C.A. (P. 63, Paras. C-F) - read in context

15. LAND LAW - TRESPASS TO LAND: Whether claim for tresspass can be combined/joined with aclaim for recovery of possession???"It has been held that a claim in trespass and for recovery of possession are self ???contradictoryand should not be joined together as one postulates that the Plaintiff was not in possession at therelevant time whilst the other suggests that he was."Per AGUBE, J.C.A. (Pp. 63-64, Paras. F-A) - readin context

16. LAND LAW - TRESPASS TO LAND: Duty of the parties in a claim for trespass to land"As I said earlier, a claim in trespass is not dependent on declaration of title as can be seen from theRespondent???s pleadings and Reliefs. See Oluwi V. Eniola (supra) and Ekeresu & Anor V. Oyobebere& 5 Ors. (1992) 11 ??? 12 SCNJ (Pt. II) 189 at 205."Per AGUBE, J.C.A. (P. 64, Paras. C-D) - read incontext

17. LAND LAW - CLAIM FOR TRESPASS AND INJUNCTION: What a party claiming damages fortrespass and injunction must prove"???However where as in this case the Respondent sought for damages and injunction, and in viewof the decisions of the Supreme Court cited per Nnamani JSC (of blessed memory) and Onnoghen,JSC, the onus is/was on the Respondent to prove his title or better title to the land if the Appellantjoined issues by Pleading that it was entitled to possession of the land."Per AGUBE, J.C.A. (P. 64,Paras. E-F) - read in context

18. LAND LAW - TRESPASS TO LAND: Whether a claim in trespass is based entirely on possession ofthe land???"Incidentally, Ejike V. Eze (DR.) A. I. Onukogu also reported in (2005) LPELR ??? 3322 (SC) hasbeen cited herein by the learned Counsel for the Respondent in urging us to discountenance thesubmission of the learned Counsel on this Issue. At pages 18 -19 Paras F ??? A. Oguntade, JSC; whoread the Judgment of the Supreme Court relied on the dictum of Fatuyi ??? Williams JSC (as he thenwas) in Pius Amakor V. Obiefuna (1974) ALL N. L. R. 109, (1974) 3 S. C. 49 also reported in (1974)LPELR ??? 452 (SC) at Pp. 11 Paras F ??? G; 12 Paras. A ??? G and 13 paras A ??? C, in case that wason all fours with ours and who restated the settled position of the law that a person can sue fortrespass even if he is neither the owner nor privy of the owner. This is because exclusive possessionas we had held earlier, gives the person in such possession the right to retain it and in undisturbedenjoyment of if against all wrong doers except a person who could establish a better title.He further held that anyone other than the true owner, who disturbs his possession of the land, canbe sued in trespass and in such action it is no answer for the Defendant in that case who even filed aStatement of Defence to show in his paragraph 7 thereof that the title to the land was in anotherperson. In the words of the sage:???To resist the Plaintiff???s claim, a Defendant must show either that he is the one in actualpossession or that he has a right to possession.???In support of the right of a person (be he even a trespasser) in possession of land as against the trueowner to devise or convey his interest in the land or transmit it by inheritance; he cited the dictum ofCockburn, C.J; In Asher V. Whitlock (1965) L. R. 1 Q. B. Page 1 at page 5; where he remarked that:???But I take it as clearly established that possession is good against all the world except the personwho can show a good title; and it would be mischievous to change the doctrine. In Dyeball Mood andM346, one year???s possession by the Plaintiff was held good against a person who came and turnedhim out; and there are other authorities to the same effect. Suppose the person who originallyenclosed the land had been expelled by the Defendant, or the Defendant had obtained possessionwithout force, by simply walking in at the open door in the absence of the then possessor, and wereto say to him: you have no more title than I have, my possession is as good as yours; surelyejectment could have been maintained by the original possessor against the Defendant."Per AGUBE,J.C.A. (Pp. 66-68, Paras. E-F) - read in context

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19. LAND LAW - CLAIM FOR TRESPASS AND INJUNCTION: Whether a claim for trespass andinjunction automatically puts title to land in issue???"On the position taken by the learned Counsel to the Appellant herein which was erroneously alsotaken by the Trial Court in the said Amakor V. Obiefuna citing the West African Court of Appeal caseof Kponuglo V. Kodaja, the learned Sage held that case never decided that in all claims for trespassand injunction, title must be proved. His Lordship of blessed memory then dealt the dead blow to theposition taken by the learned Counsel for the Appellant here in when he submitted that Respondentought to have rooted his claim on declaration of title before damages and injunction can be grantedhim when he (the learned Judicial Icon) posited:???Generally speaking, as a claim for trespass to land is rooted in exclusive possession, all a plaintiffneed to prove is that he has exclusive possession, or he has the right to such possession, of the landin dispute but once a Defendant claims to be the owner of the land in dispute, title to it is put inissue, and in order to succeed, the Plaintiff must show a better title than that of the Defendant. Thisis clearly the position in the Kponaglo???s case as can be gleaned from the extract from page 24 ofthe Judgment???.???The above dictum of His Lordship is the true purport of the Ruling of the Learned Trial Judge atpage 112 of the Records and this position of the law as enunciated is what some of us were taughtand are familiar with as being the true state of our law."Per AGUBE, J.C.A. (Pp. 68-70, Paras. F-A) -read in context

20. LAND LAW - TRESPASS TO LAND: Duty of the parties in a claim for trespass to land"To buttress the position taken by the learned Trial Judge and as rightly submitted by the learnedCounsel/Respondent that the Supreme Court and indeed his Court in the cases relied upon by thelearned Counsel for the Appellant in support of his submissions on this Issue, did not say that anaction in trespass is not justiciable unless accompanied by a claim of Declaration of title. Oputa, JSC(also of blessed memory) had put it beyond question in Ranking Udo & Ors. V. Mbiam Obot & Ors.(1989) 1 N. S. C. C. 45 at 53 lines 7 ??? 8 that:???Trespass to land and Declaration of title to land are two distinct and separate claims. Theseclaims may arise from two distinct causes of action and an action in trespass will not constitute a barto a future action for title: Brunsden V. Humphrey 14 q. b. d. 141."Per AGUBE, J.C.A. (Pp. 70-71,Paras. F-D) - read in context

21. LAND LAW - TITLE TO LAND: When is title to land put in issue"In the same way that jurisdiction can be determined from the Statement of Claim and the Reliefssought so can a Court determine from the pleadings and the Reliefs sought whether titles is in Issue.For instance following the decisions of the Supreme Court like Ranking Udo & Ors. V. Mbian Obot &Ors (supra); Integrated Timber & Plywood Products Ltd. V. Union Bank Nig. Plc. (2006) 12 NWLR(Pt.995) 483 at 489 and Odunze V. Nwosu (2007) 13 NWLR (Pt.1050) 1 at 14; we can even deducethat where the Plaintiffs pleaded the pedigree of the land right from its founding fathers throughwhom it devolved until it got to their hand as well sought Reliefs in damages and injunction, then theinference could have even been drawn that title to the land was in issue.???Sometimes also, the Pleadings of a Plaintiff may be obscure such that the trial Court would strainevery nerve and scrutinize the entire case of the Plaintiff with a tooth comb in order to decipher thetrue purport thereof. In such a case, title to land may be deciphered from the body of the Statementof claim. Again, in the peculiar circumstance parties found themselves where the Respondent suedfor Trespass and claimed damages and injunction as Reliefs, if the Appellant had joined Issues byfiling his Statement of Defence pleading that they were the owners of the land or the ones entitled toexclusive possession, then the title to the land would automatically be put in issue and whoeverprove better title would be given Judgment or in the alternative where there is no Counter-Claim andthe Plaintiffs who have the onus and burden of proving title depending on the strength of their casewould have the suit dismissed if they failed to discharge the burden of proof at the close of eachother???s case.???As we had earlier held and in total agreement with the learned Counsel for the Respondents, thelearned trial Judge was on very firm ground when he ruled that at that juncture of the Preliminaryobjection, the title of the Respondents remained unchallenged and assuming the Defendant afterthis Appeal still refuses to file its statement of Defence, the Respondents who have allegedly put thetitle of the land in issue, shall be required to prove their case and if the Court below is satisfied thatthey have established their title, shall proceed to grant them the Reliefs sought and if they fail to doso their claim would be dismissed."Per AGUBE, J.C.A. (Pp. 73-75, Paras. A-A) - read in context

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22. LAND LAW - FAMILY PROPERTY/LAND: How is family property created and how does land qualifyas a family land"As rightly submitted by the learned Counsel/Respondent that it is a matter for judicial notice thatland and property are owned by an individual or family and that the concept of family property isingrained in our indigenous society and the bedrock of inheritance particularly as it related to landownership. This point was emphasized in Usiobaifo Vs. Usibaifo [2001] F. W. L. R. (Pt.61) 1784 at1799 Per Ibiyeye, JCA who posited in paragraphs D ??? E thereof and rightly too that:???It is settled law that the concept of family property is original to our indigenous society and thebedrock of our law of inheritance. The most common circumstance of creating family property isdeath intestate of land owner, whose estate is governed by Customary law. Such land devolves tohis heirs in perpetuity as family land. Another method of creating family land is by conveyanceintervolves where land is purchased with money belonging to the family: family land can also becreated by the use of the appropriate expression in the Will of the owner of such land. See the casesof Olowosago & Ors. V. Adebanjo & Ors. (1988) 4 NWLR (Pt.88) 275 at 287; Lewis V. Bankole 1 NLR81; and Shaw Vs. Kehinde (1947) 18 NLR 129???.???From the above authorities, it is clear and without doubt that the law recognizes the family as andentity under whose canopy a member or members or through their Attorney an action can bebrought to protect such family property."Per AGUBE, J.C.A. (Pp. 82-83, Paras. C-D) - read in context

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23. LAND LAW - FAMILY PROPERTY/LAND: Nature of land ownership vis-a-vis family property/land"???If the learned Counsel is still in doubt as to the legal personalities behind the Onyeweuekefamily, I wish to draw his attention to the fact that in Efunwape Okulate & 4 Ors. V. GbadamosiAwosanya 2 Ors. [2000] F. W.L R. (Pt. 25) 1666 which was decided several years after the casescited by the learned Counsel, the Appeal was initiated by Efunwape Okulate (For Denike family) the1st Appellant which for the 2nd Appellant, Olarenwaju Ogundipe family and Gbadamosi Awosanya,Adebayo Akilo and Bolaji Akodu were (For themselves and on behalf of the Olisa Family).Again, if the myopic vision of the learned Counsel is yet not cleared, I shall draw his attention to text???AFRICAN INDIGENOUS LAW: PROCEEDINGS OF WORKSHOP BY THE INSTITUTE OF AFRICANSTUDIES UNIVERSITY OF NIGERIA NSUKKA (7 -9 AUGUST, 1974) Edited by Hon. DR. T. O. Elias (ChiefJustice of Nigeria) DR. S. N. Nwabara (Director, Institute of African studies, University of Nigeria,Nsukka) and MR. C. O. Akpamgbo (Lecture in Law, University of Nigeria, Enugu Campus)???Published by the Government Press, Enugu at pages 43 ??? 46 particularly at 43 and 46 when thelearned Hon. Justice M. O. Balonwu in his Essay Captioned: ???THE GROWTH AND DEVELOPMENT. OFINDIGENOUS NIGERIAN LAWS AS PART OF OUR HERITAGE FROM THE BRITISH COLONIAL POLICY OFINDIRECT RULE??????One of the institutions of our indigenous jurisprudence preserved and enforced by the Courts, asa result of the British Policy under consideration, is that of Family Property, as a system of land ???holding being organized on similar structures, Nigerians have a basic and uniform system of landtenure. this is one developed the community principle in the indigenous Nigerian Law. In most, if notall, Nigerian societies, the undivided qua individual, is not entitled to any rights in land, unless he is amember of one or more land owning groups. So individual has to belong to a family household, clan,village, or to some social unit or territorial community before he is entitled to use for his own benefitland which is in control or ownership of such groups???.As if to drum it to ears of deaf and visionless skeptics of the ilk of the learned Counsel who pretendnot to be aware of this State of our indigenous law the learned Hon. Justice made it clear that:???In Nigeria, therefore, it can safely be said that the unit of landholding is the family, not theindividual, that family property is a uniform tenure of land-holding in the whole country (with thepossible exception of the North), which indicates a form of ownership vested in the family asopposed to individual???.See the case of Adagun V. Fagbola Per Kingdom, C. J. (1932) 11 N. L. R. 110 at 111; Miter Bros. V.Ayeni (1924) 4 N. L. R. 40, Per Van Der Muen JSC; Jacobs V. Oladunmi Brothers (1935) 13 NLR 1,Majekodunmi V. Amodu Tijani (1932) 11 N. L. R. 25; Taylor V. Willians (1935) 11 N. L. R. 67 at 69citing Ogunmefun V. Ogunmefun & Others N. L. R. Vol. 10 Page 82) in holding at page 70 of theReport that is until the family structure, with all its incidents of native law and custom, has beenbroken up, the correct view is that at any moment the ownership of the family property is vested inthe whole family property is vested in the whole family as trustees for the whole family.Furthermore, each individual member of the family has in addition vested in him or her what may betermed as a right of user during his/her life. That right is purely life interest which on death of theindividual that interest which on death of the individual that interest reverts to the whole familytoughly reason the user enjoyed by the deceased individual during his or her life time, the family willgenerally permit his or her children to have among them the same user rights as their parent, if thecircumstances of the family permit. See Davies V. Sagunro & Ors. (1936) 13 N. L. R. 15 and Chief EyoITA & Ors V. Asido (1935) 2 W.A.CA. 339 Per Webber, C. J.???Finally, let me comment the immortal dictum of Lord Haldane in the oft-quoted case of AmoduTijani V. Secretary of Southern Nigeria [1921] 2 A. C. 399 at 404,On this subject to the learned Counsel to the Appellant that:???The next fact which it is important to bear in mind in order to understand native land/law is thatthe notion of individual ownership is quite foreign to native ideas land belongs to the community, thevillage or the family, never to the individual. This is pure native custom along the whole length ofthis coast; and whenever we find, as in Lagos individual owners, this is again due to the introductionof English ideas???.???All the cases I had cited were decided by English Judges who recognized the indigenous custom offamily ownership of land which custom is still extant in areas where the English concept ofindividualism has not completely eroded our value systems like the case at hand. In Igbo land whichUmuakaje, Umuseke, Okwudor, Njaba L. G. A of Imo State is, land as was recorded by Dr. Meek in hisBook: Land Law and Custom. In the colonies is conceived to belong to a vast family of which manyare dead, few are living and Countless membersare still unborn. Moreover, it is also necessary to draw the attention of the learned Counsel for theAppellant to the West African Lands Committee Report (Paragraph 91 thereof) where it is statedthat:???A third principle (of land tenure) is that land is considered as still the property of the originalsettler, and thus belonging to the past, the present and the generations to come."Per AGUBE, J.C.A.(Pp. 85-90, Paras. D-B) - read in context

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24. LEGAL PRACTITIONER - AUTHORITY OF COUNSEL: Scope of the authority of counsel acting onbehalf of his client"In Chief Gani Fawehinmi V. Nigerian Bar Association & Ors. No 1 (1989) 4 S. C. N. J. (Pt. 1) 1 at 23,Obaseke, JSC, had held that: ???A legal practitioner cannot be deprived of his rights and privileges bya mere allegation that he is a party when there is no claim or cause of action against him or a provenallegation of infamous conduct in a professional respect???.Earlier at page 21 of the same Report the Emeritus Law Lord had reasoned that: ???The word???represent ??? in the context of legal representation means to act or stand for or be an agent foranother???.???The above cited case arose in the Supreme Court from a Preliminary Objection on the issue ofappearance of Counsel who was equally a Defendant in a case and some of the questions fordetermination were whether a party who is also a legal practitioner can appear for other parties inthe same suit as Counsel and conduct the other parties??? case from the Bar and whether theCounsel/Defendants whose appearances was objected to in the Lower Court should be allowed toappear for another Defendant from the Bar and while in robe, rather than from the well of the Courtand without their gowns.See also Mosheshe General Merchant Ltd. V. Nigeria Steel Products Ltd (1987) 2 NWLR (Pt. 55) 110S.C; Akanbi V. Alao (1989) 3 NWLR (Pt.108) 118 at 141 S.C; Ngwu V. Ozougwu (2001) WRN 26 S. C;Ibon V. Agbi (2004) 6 NWLR (Pt.868) 78 S. C. and FRN V. Adewunmi (2007) 10 NWLR (Pt.1042) 399on the Scope of Counsel???s authority in representing his client."Per AGUBE, J.C.A. (Pp. 49-51, Paras.E-A) - read in context

25. PRACTICE AND PROCEDURE - ISSUE OF JURISDICTION: Whether the issue of jurisdiction mustbe resolved first before hearing a case on the merits???"There is also no doubt that it is now settled without citing of any authority that because of thethresh old nature of jurisdiction, the Court must proceed to determine it before proceeding with thehearing of the matter on the merits and that in so doing it is the case of the Plaintiff as Stated in theoriginating process that determines the jurisdiction of the Court. See Hon. Prof. Chudi Uwazurike &Anor. Vs. Chief Austin Nwachukwu & Anor (2013) MRSCJ (Vol.12) 70 at 84 paras. E ??? I, PerOnnoghen, JSC."Per AGUBE, J.C.A. (Pp. 57-58, Paras. F-B) - read in context

26. PRACTICE AND PROCEDURE - MISNOMER: Whether suing in a wrong name is a misnomer; canthe Supreme Court correct such misnomer???"There is no doubt that in the said case of Agbomagbe Bank Vs. General Manager G. B. Olivant,case, one of the earliest decided on this legal personality and parties to a suit, the Plaintiff in thatcase named the 1st Defendant in the Statement of Claim as ???General Manager, G. B. OlivantLtd.??? and an objection was raised on the grounds that such name was not of a person known tolaw and as such could be sued and therefore ought to be struck out of the suit. it was submitted bythe Plaintiff that the description of the 1st Respondent was a misnomer which could be amended byorder of Court. The Court however held that there were authorities to the effect that in a case ofmisnomer, if application is made for the substitution of proper names by amending the writ thiscould be granted but that in the said case, the 1st Defendant not being a Legal person its name wasstruck out. See however Carlen V. Unijos (1994) 1 NWLR (Pt. 323) 631."Per AGUBE, J.C.A. (Pp. 80-81,Paras. E-C) - read in context

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IGNATIUS IGWE AGUBE, J.C.A. (Delivering the

Leading Judgment): By a writ of Summons dated and

filed the 1st day of April, 2008 and Statement of Claim

dated and filed on the 29th day of July, 2008, the

Respondent (then the Plaintiff) sued the Appellant (then

Defendant) in the High Court of Imo State of Nigeria,

Holden at Nkwere Judicial Division and sought for the

Reliefs following:

“WHEREFORE, the Plaintiff Claims:

(i) The sum of N150,000,000.00 (ONE HUNDRED AND

FIFTY MILLION NAIRA) Only being special and general

damages for trespass by the Defendant into the Plaintiff’s

Land known as and called “ALA IKPA” situate at Umuakje,

Umuseke, Okwuder, Njaba Local Government, Imo State.

PARTICULARS OF SPECIAL DAMAGE:

(a) Cost of dismantling the Communication Mast =

N75,000,000.00

(b) Cost carting the mast away and disposing of the same =

N15,000,00.00

(c) Cost of detoxification of the Land = N10,000, 000.00

(d) Cost of restoration of Land to its Original use and

purpose = N10,000,00

(e) Cost of Professional and ancillary Consultation and

advice relating to the case = N25,000,000.00

“GENERAL

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DAMAGES = N15,000,000.00

“(ii) Perpetual injunction restraining the Defendants,

its servant, agent, privies, assigns or however from

further trespassing into the Plaintiff’s land know as

and called “ALA IKPA” situate at Umuakaje,

Umuseke, Njaba Local Government, Imo State”.

Upon being granted leave to serve the Originating

Processes out of jurisdiction that is Churchgate Towers,

Plot 30 Afribank Street, Victoria Island Lagos, Lagos State,

the Defendant through its Counsel E. E. Chuwuka Esq, filed

a Motion on Notice praying for the Suit to be dismissed for

want of jurisdiction on grounds that:

1. The Suit was not properly constituted.

2. There is no CLAIMANT in the Suit;

the said motion was contested and heard on the 14th of

February, 2011 and adjourned to 6/4/2011 on which date

the learned Trial Judge T. E. CHUKWUEMEKA – CHIKEKA,

J. ruled dismissing same for lacking in merit with

N3,000.00 costs in favour of the Respondent/Plaintiff.

It would appear that the Defendant refused and/or

neglected to file a Defence to claim of the Plaintiff whereby

the Plaintiff brought a motion on Notice pursuant

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to Order 20, Rule 9, of the High Court (Civil Procedure)

Rules, 2008, EX DEBITO JUSTITIAE seeking for the

following Reliefs;

“1. An order of Court entering Judgment for the

Claimant/Applicant in the face of his Statement of

Claim, the Defendant/Respondent having failed,

neglected and/or refused to comply with the rules of

Court by filing its pleadings to the action of the

Claimant.

“2. AND FOR such further or other orders as the

Honourable Court may deem fit to make in the

circumstances of the case.”

The motion which was supported by an Affidavit of thirteen

paragraphs, a written Address and the Affidavit of service

of the originating Processes was dated 18th day of April,

2011 and filed on 19th April, 2011. As usual the learned

Counsel for the Defendant/Respondent upon being served

with the said motion, responded by filing a Notice of

Preliminary objection dated 6th June, 2011 and filed same

date seeking an order dismissing/striking out the Plaintiff’s

suit in limine for want of jurisdiction on the grounds that:

“1. There is nothing to show that the land subject

matter of the suit referred to as “ALA IKPA LAND”

lying

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and situate at Umuakaje, Umuseke, Okwudor Njaba L.

G. A, Imo State is subject of any Statutory/Customary

Right of Occupancy granted or deemed to be granted

by the Governor/Local use Act.

‘2. The Claim or Reliefs sought by the Claimant are

only ancillary reliefs which are not justiable in the

absence of any declaratory relief with regard to title

as per ground one above.

“3. By virtue of grounds one and two above the Court

lacks jurisdiction to adjudicate over the Claims

pursuant to Section 39 and 41 of the Land Use Act.”

In support of the Notice of Preliminary Objection the

Learned Counsel for the Defendant also filed a written

Address therefore. The Learned Counsel for the Plaintiff

upon receipt of the Notice of Preliminary objection filed a

written Address in opposition to same to which the learned

Counsel to the Defendant/Objector filed a Reply Address on

points of Law.

On the 6th day of July, 2011 the Written Addresses were

adopted learned Counsel for the Parties and the Court

adjourned to the 21st day of July, 2011 on which date that

he Ruled at page 1146 of Records that:

“From the

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totality of the above, I hold that the Claim of the

Respondent is proper, this Court has the jurisdiction

to entertain this Suit, the Preliminary Objection of

the Applicant lacks merit and is hereby dismissed

with N5,000.00 cost in favour of the Respondent.''

Aggrieved by the above Ruling, the Defendant/Applicant

gave Notice of Appeal with Two (2 Original Grounds dated

and filed on the 2nd day of December, 2011 and by leave of

this Honourable Court granted on the 26th of November,

2014, the Appellant was allowed to amend the original

Grounds of Appeal by adding Grounds 3 and 4 and to deem

the Additional Grounds as duly filed and served upon

payment of the requisite fees. Below are the Composite

Grounds of Appeal as amended and filed.

“GROUNDS OF APPEAL

GROUND 1 ERROR IN LAW:

The learned trial Judge erred in law when he held that the

Lower Court had jurisdiction to entertain the claim of the

claimant being damages for Trespass and perpetual

injunction without any claim of title to the land or putting

his title in issue.

PARTICULARS OF ERROR:

1. The Defendant/Appellant by way of a Preliminary

Objection challenged the

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competence of the suit on the ground that it is the claim of

Clamant that determines jurisdiction.

2. The Claim of the Claimant or the Relief sought in his

Statement of Claim was only for general and special

damages for trespass to land and perpetual injunction

without more.

3. It was wrong for the learned Trial Judge to hold that it

had jurisdiction to entertain the Suit when the Claimant did

not put his title in Issue.

“GROUND 2 ERROR IN LAW:

The learned trial Judge erred in law when he held that the

Claimant’s title to the land could be deciphered or found in

BODY OF THE Statement of claim even though the

claimant did not specifically ask for such declaration of

title.

PARTICULARS OF ERROR:

1. It is always the Relief(s) claimed at the tail end of a

Statement of Claim that confers jurisdiction on a Court and

not the confers or the body of the State of Claim.

2. The summation of the learned trial Judge in this regard is

tantamount to saying that the Courts can act as a Father

Christmas in certain cases to grant reliefs not specifically

asked for, which is not permissible in law.

“GROUND 3 ERROR

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IN LAW:

The learned trial Judge erred in law when he held in an

earlier

Preliminary Objection on jurisdiction on 6/4/2011 that the

suit was properly constituted after the Defendant/Appellant

in the Court below had contended that the Claimant cannot

be Attorney and a party at the same time in the same Suit.

PARTICULARS OF ERROR:

1. The claimant/Respondent in the Court below is one

Barrister Emeka Emegano. He sued as “Attorney to the

family of Onyewueke of Umuakaje, Umuseke, Okwudor,

Njaba L. G. A of Imo State”. He is also the Claimant.

2. The contention of the Defendant/Appellant at the Court

below was that an Attorney cannot also be a party

(Claimant) in the same Suit.

3. The learned trial Judge thought otherwise and held that

the Attorney can also be a party in the same Suit in spite of

established authorities to the contrary.

“GROUND 4 ERROR IN LAW;

The learned trial Judge erred in law when he in the said

earlier Ruling of 6/4/2011 that “the family of Onyewu being

represented by the Attorney/Claimant is a legal personality.

PARTICULARS OF ERROR:

1. The Appellant had

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earlier contended at the Court below that: “the family

of Onyewueke of Umuakaje” being represented by the

Respondent is not a person known to law and as a

consequence the said Court lacked jurisdiction to

hear the Suit.

2. The learned trial Judge in his Ruling of 6/4/2011

held that there was nothing before the Court showing

that the “Onyewueke family” does not exist or is not a

legal personality”.

3. Authorities abound that “the family of Onyewueke”

or “Onyewueke family” is not a person known to law

who can sue or be sued”.

RELIEFS SOUGHT FROM THE COURT OF APPEAL:

To allow the Appeal and set aside the whole decision made

on 21/11/2011 and on 6/4/2011 and to grant the

Defendant/Appellant’s Application dismissing the

Claimant’s Suit for lack of jurisdiction.

Fo l lowing the t ransmiss ion o f the Record o f

Proceedings/Appeal from the Lower Court to this

Honourable Court, the learned Counsel on behalf of the

parties exchanged their respective Briefs in line with the

Rules of this Court which Briefs were adopted on the 25th

of February, 2016 but owing to national

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assignment this Judgment could not be delivered as at

when due. In the Appellant’s Brief dated the 4th day of

December, 2014 and filed same date, the learned Counsel

for the Appellant E. E. Chukwuka Esq; who settled same

distilled FOUR(4) ISSUES from the Four Grounds of Appeal

as calling determination couched as follows:-

ISSUES FOR DETERMINATION:

“1. Whether the suit as constituted is proper in law

that is to say whether the Plaintiff or Claimant as the

case may be can also be an Attorney in the same Suit?

“2. Whether the Lower Court had jurisdiction to

entertain the Suit Vis-a-viz the Reliefs sought or

Claimed in the Statement of Claim?

“3. Whether the land is specifically claimed by a

Claimant or merely deciphered by a Court from the

body of the statement of claim?

“4. Whether the “family of Onyewueke of Umuakaje”

who the Attorney Claims to be representing in the

said Suit is a person known to law that can sue and be

sued?”

On his party, Emeka Emegano Esq, who settled the Brief of

the Respondent dated 6th January, 2015 but filed on the

11th day of February, 2015,

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nominated/adopted the Issues as distilled by the learned

Counsel for the Appellant. it should also be noted that upon

receipt of the Respondent’s Brief, the learned Counsel for

the Appellant further filed the Appellant’s Reply Brief dated

the 19th day of June, 2015 same date.

Before delving into the Arguments of learned Counsel on

the Issues formulated it is only apt at this juncture to have

a recapitulation of the antecedents of the case leading to

this Appeal. As can be gleaned from the Plaintiff

/Respondent statement of claim, the Plaintiff/Respondent

who is a practicing Lawyer brought this Suit in Lower

Court as Attorney to the members of Onyewueke family of

Umuakaje, Umuseke, Okwudor, Njaba Local Government

Area, of Imo State which Power of Attorney of 25/6/2007

donated to him by the members of the said Onyewueke

family, he sought to rely upon at the trial.

The Plaintiff averred that the Onyebueke family of

Umuakaje, Umuseke Ukwudor are and were at all times

material to the case, the owners in passion from time

within the memory of man all that piece of land known as

and called “ALA IKPA” situate at Umuakaje, Umuseke,

Okwudor,

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Njaba Local Government, Imo State; Nigeria. The Plaintiff

claimed that the said ALA IKPA Land was inherited by them

or devolved on them from their ancestors/forebears who

deforested same and made diverse use of same until the

land got to Onuoha and to Onyewueke the grandfather of

the Plaintiffs who donated the Power of the Attorney to the

named Plaintiff.

He traced the genealogical pedigree of the piece/parcel of

land from Onyewueke who begat :

(1). AWUZIE, who begat Mr. Jerome Onyewueke and

Vincent Onyewueke amongst others;

(2). Emmanuel Onyewueke who begat Uche Onyewueke

amongst others as children;

(3). Illah Onyewueke who was the father of Louis

Onyewueke amongst others;

(4). Celestine Onyewueke (the only surviving Onyewueke

child); and

(5). Basil Onyewueke; who had been using and still use the

land for farming purposes and have reaped and still

reaping economic crops from the land having been in quiet,

peaceable and undisturbed possession of the land until

somet ime in 2007 (prec ise ly June) , when the

Defendant/Appellant trespassed into same and commenced

erection thereon.

It was also the Plaintiff (now Respondent’s)

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case that before the trespass, the land had not been

alienated or dealt with by or in any manner adverse to the

possessory rights of the Onyewueke family, neither was it

pledged to any person whatsoever not sold, portioned or

shared but has always remained in joint possession of the

Onyewueke family. The cause of action was the breaking

and entering into the land and commencement of the

construction of a gigantic and Monstrous Communication

Mast thereon without the leave, consent or authority of the

Plaintiff/Respondent’s leave, consent or authority being

first sought for and had.

The Respondent further alleged that upon the finding’s

discovery of this trespassory act of the Appellant, they

(Plaintiff) cordoned off the piece of land and the area

cleaved for the construction by the Appellant, with palm

fronds (which under Custom and Native Law signifies

traditional injunction for purpose of putting any person on

inquiry that there is a dispute over the said land). The

Appellant rather than taking heed and precaution over the

Native injunction placed on the land by the Plaintiff

contemptuously removed same and committed their

trespassory acts on

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the land. It was further alleged by the Appellant that

Respondent wrote to the Appellant on 26/6/2007 through

their Lawyer delivering a warning the Appellant of the

trespass and demanding a stoppage thereto.

Instead of heeding to the above warning the Appellant used

armed Guards and miscreants to ward of the Respondent

while continuing their trespass on the property of the

Respondent until it completed the construction of the said

Communication mast on the land of the Plaintiff. For the

aforestated reasons, the Appellant wrongfully entered the

said land and taken possession of same and has thereby

trespassed and is still trespassing thereon. Furthermore,

the Respondent has been deprived of the use and

enjoyment of the land and premises and has therefore

suffered loss and damage.

Consequently, the Respondent procured the service of an

Estate Surveyor or Quantity Surveyor and structural

Engineer to do a valuation of the cost of dismantling the

Mast and carting away the materials from the said land as

well as the value of the land and the cost of restoration to

its original use. He pleaded and relied on the Reports

produced by the said

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Engineers and surveyors at the hearing of the Suit as well

as the costs and Drawings and other related documents

from the Defendant pertaining to the mast wrongfully

constructed on the Plaintiff’s land by the Defendant at the

trial. Hence the Claim and Relief’s earlier reproduced as

sought from the Defendant/Appellant.

ARGUMENT OF ISSUES.

ARGUMENT OF LEARNED COUNSEL FOR THE

APPELLANT ON ISSUE NUMBER 1 (ONE):

“WHETHER THE SUIT AS CONSTITUTED IS PROPER

IN LAW THAT IS TO SAY WHETHER PLAINTIFF OR

CLAIMANT AS THE CASE MAY BE CAN SUE AS BOTH

ATTORNEY AND CLAIMANT AT THE SAME TIME IN

THE SAME SUIT?”.

Arguing this Issue, the learned Counsel for the Appellant

pointed out that the Claimant/Respondent sued, as had

been done in the Lower Court, as both Attorney and as

claimant at the same time in the Suit now on Appeal. He

referred us to pages 61 -65 of the Record of Appeal where

the capacity of the Respondent was earlier challenged in

that regard and relied on Timothy Ofodum V. R.S.

Oneacho (Suing as Agent of the Administrator –

General for the Estate of Ernest Egbuna - Deceased)

(1966-67) 10 ENLR 132 was referred to in

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submitting that contrary to the above authority cited, the

Attorney instead of Suing in the name of the Donors, sued

in his own name thereby constituting himself as both

Attorney and Claimant, which has rendered the suit now on

appeal incompetent. We were therefore urged to sustain

this contention as prayed by the Appellant even at the

Court below.

For the above submission and prayer, he relied on Order 16

Rule 1 of the Rules of the Supreme Court of England which

provision he reproduced and further contended that to

compound the case, the Respondent was claiming the said

damages according to the said Respondent for trespass by

the Defendant into Plaintiff’s land known as and called

“ALA IKPA”. (Page 18 of the Records refers).

According to learned Counsel for the Appellant, in so

pleading, the Plaintiff/Respondent of Claim (Page 15 of the

Records), the land is no longer that of the “family of

Onyewueke of Umuakaje” but now that of the Plaintiff or

claimant going by the said Claims 1 and 2 of the Statement

of Claim (page 18 of the Records refers).

We were therefore urged to uphold the Appellant’s

contention

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that the suit is improperly Constituted in law and therefore

robs the Lower Court of the jurisdiction to entertain same.

ISSUE NUMBER TWO: “WHETHER THE LOWER

COURT HAD JURISDICTION TO ENTERTAIN THE

SUIT VIS-A-VIZ THE RELIEFS SOUGHT OR CLAIMED

IN THE STATEMENT OF CLAIM?”

On this Issue, the learned Counsel for the Appellant

recalled his contention in his preliminary Objection of

6/62012 on behalf of the Appellant that the claim or Reliefs

sought by the claimant were not justifiable and submitted

that it is trite law that the Claim before the Court

determines the jurisdiction and that there was no claim of

title to any land except the Claim for damages and

injunction.

He further recalled that in the said Preliminary Objection

the case, of Integrated Timber and Plywood Products

Ltd. V. Union Bank Nig. Plc. (2006) 12 NWLR

(PT.995) 483 at 489 Ratio 4; was cited in support of his

argument on jurisdiction where the Supreme Court decided

on how the jurisdiction of a Court can be determined in a

given Suit and what ought to be considered by the Court

and what is not necessary to be considered in the

circumstance, Usman V. Baba (2005) 5 NWLR (Pt.

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917) 113 Ratio 5 was further relied upon in so submitting

that pursuant to the Supreme Court decision in Integrated

Timber & Plywood Products Ltd. V. UBN Plc. (supra)

and Usman V. Baba (supra), we were urged to look once

again at the Claim or Reliefs of the Respondent at the Court

below in order to determine whether the Court was seised

with the jurisdiction to entertain and determine same.

Alluding still on this point to the dicta of Augustine

Nnamani, JSC in Ranking Udo & Ors. V. Mbiam Obot &

Ors. (1989) 1 NWLR (Pt.95) 59 at 64 Ratio 15 and

Umaru Atu Kalgo, JSC in Odunze V. Nwosu (2007) 13

NWLR (Pt.1050) 1 at 14 Ratio 16, on what is necessary

to be proved in a case for trespass and where the party

goes further to claim damages and injunction what he must

first established before establishing possession; the learned

Counsel for the Appellant submitted that the findings of the

learned Trial Judge in his Ruling at page 112 of the Records

run Counter to the Supreme Court decisions as earlier cited

above.

On the above premises, the learned Counsel argued that

the learned Trial Judge erred in law when he held that “the

Claim for

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title” was unchallenged when there was no such claim of

title at the Court below for according the learned Counsel,

what the Court was saying is that it could look through the

body of the Statement of Claim of the Plaintiff. He at that

Juncture recalled the dictum of Chukwuma -Eneh, JSC in

the Odunze V. Nwosu case earlier cited, at pages 1 and 14

Ratio 3, on not sought by parties. Kalio V. Daniel – Kalio

(1975) & S. C. 138; Okeowo V. Miglore (1979) 11 138;

Omoboriowo V. Ajasin (1984) 1 SCNLR 108 at page 46

Paras. F – G; Page 50, Paras. A – B and 53 Paras G – H

; of the Odunze V. Nwosu case (supra) were further

referred to in urging us to uphold their Preliminary

Objection to the effect that the Reliefs sought are not

justifiable in the absence of any claim for title having

regard to the claim in damages and injunction thereof

without more.

ISSUE NUMBER 3: “WHETHER TITLE TO LAND IS

SPECIFICALLY CLAIMED BY A CLAIMANT OR

MERELY DECIPHERED BY A COURT FROM THE

BODY OF THE STATEMENT OF CLAIM?”

On this Issue the learned Counsel submitted that Issue

Number 3 has already been addressed by his argument on

Issue

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Number 2 which he adopted.

ISSUE NUMBER 4: "WHETHER THE “FAMILY OF

O N Y E W U E K E O F U M U A K A J E ” W H O T H E

CLAIMANT/RESPONDENT CLAIMS TO BE

REPRESENTATION IN THE COURT BELOW IS A

PERSON KNOWN TO LAW?”.

The learned Counsel on this Issue also drew our attention

to his contention in the Lower Court that “the Family of

Onyewueke” purportedly represented by the Respondent is

not a person known to law. He referred us to the decisions

of this Honourable Court inMAILAFIA V. VERITAS

INSURANCE (1986) 4 NWLR (Pt.38) 804 Ration 9 and

Emecheta V. Ogueri (1996) 5 NWLR (Pt. 447) 227 at

231, Ratio 9; on who has the capacity to sue and be sued

and further submitted that “the family of Onyewueke”

cannot by any stretch of imagination be said to be an

identifiable legal person or persons in law who can sue or

be sued.

It was therefore contended that the learned Trial Judge

erred in law when he held as he did at page 81 line 21 of

the Records and Page 82 lines 1 & 2 of the Records that the

suit was well constituted when they the Appellants fail to

see how “Onyewueke family” or “the family of Onyewueke”

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constitute a legal personality in the light of decided

authorities to the contrary Agbomagbe Bank Ltd. V.

General Manager G. B. Olivant (1961) ALL N. L. R.

116 and Okechukwu & Sons V. Ndah (1967) N. M. L.

R. 368, were finally relied upon in concluding that in the

light of the foregoing, this Court should allow the Appeal

and dismiss the Claimant/Respondent’s Suit for lack of

jurisdiction

ARGUMENTS OF LEARNED COUNSEL FOR THE

RESPONDENT.

ISSUE NUMBER ONE(1):

Reacting to the submissions of the learned Counsel for

Appellant on this Issue, Emeka Emegano, Esq for the

Respondent posited that the suit as constituted in the

Lower Court was competent as every case ought to be

looked at and decide on its peculiar nature and

circumstances. On the argument by the learned Counsel for

Appellant that the Donor of a power of Attorney must sue in

the name of the Donor, he pointed out that the learned

Counsel for the Appellant stated the general principles of

law. He added that before a Court can apply the said

general principle of law out of his head, the nature of

power donated to the Attorney in order to find out the

Scope. For this submission he

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relied on the case of DR. Ntia Vs. Jones (2007) ALL

FWLR (Pt.357) 1606 at 1611, Para. E (CA), to further

urge us in consideration of this Appeal to look at the

unchallenged pleadings of the Respondent and the power of

Attorney authorizing the named Plaintiff to bring the

action. Pages 57 – 60 of the Records where the Power of

Attorney is reproduced was drawn to our attention in this

regard.

The learned Counsel for the Appellant noted that upon our

consideration of the said pleadings at pages 15 -18 of the

Records and the Power of Attorney it would be noted that

the Plaintiff was given the powers contained in the said

power of Attorney which are specifically over the land the

subject-matter of the action now on Appeal to institute legal

action, commence, prosecute, enforce, demand, enter into,

defend action and other proceedings in any Court of law in

his name ….”, and so on. He maintained that by the express

and specific donation of the power, the Donee (the

Plaintiff/Respondent herein) can do all the things

authorized in the power of Attorney “in his name or in

the name of any person or groups of

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persons selected or appointed by him for the

purpose”, and bringing of action in his names is lawful. We

were therefore urged to hold that the general provisions of

the law that an Attorney or Agent must sue in the Donor’s

name no longer apply in the instant case.

Responding to the citing of the case of Timothy Ofodum

Vs. S. Onyeacho (Suing as Administrator of the Estate

of Ernest Ernest Egbuna Deceased) [1966 -67] 10

ENLR 132, we were urged to disregard the authority as it

deals with the general principle of law and it should not

apply to this case for the reasons already proferred above.

We were also urged to distinguish Dr. Ntia V. Jones from

the instant case as their facts are not the same. He then

explained cases as against the instant case which is specific

and the Plaintiff/Respondent was carrying out the powers

donated to him by the power of Attorney which he could

have instituted in another or group of persons name as he

went the extra-mile of stating his capacity copiously.

Finally on this Issue, he argued that the authorities of

Vulcan Gases Ltd. V. Gesellschaft (2001) FWLR

(Pt.53) 1 and DR. Ntia V. Jones, do not apply as the

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action does not in any way suffer from want of locus standi

of the Claimant more so, where the name Claimant is not

an Attorney and Claimant at one and the same time as

alleged the learned Counsel for the Appellant.

On the interpretation of paragraphs which according to

learned Counsel to the Respondent, were the subject of

legal gymnastics by the learned Counsel for the Appellant,

the learned Counsel for the Respondent, submitted that

even upon the assumption but not conceding that there is a

mix-up, that will go only to the issue of whether the

Claimant is entitled to those Claims and not the

competence of the action as constituted. He maintained

that the argument of the learned Counsel for the Appellant

in Paragraphs 3.07 and 3.08 of the Appellant’s Brief of

Argument over looks the position of the Law that once an

Agent or Attorney is appointed, he steps into the stead of

the Donor of Power of Attorney/Principal, as if he is making

the Claims himself. We were in consequence of the above

urged to resolve Issue Number One (1) in the affirmative

and dismiss the Appeal.

ISSUE NUMBER 2 (TWO):

On this Issue which is whether the Lower Court

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had the jurisdiction to entertain the suit vis-a-viz the Reliefs

or claim before the Court the learned Counsel answered

the question in the affirmative. Conceded to the general

provisions of Law and the authorities cited by the learned

Counsel for the Appellant in paragraphs 4.05 of the

Appellant’s Brief as well as 4.06 and 4.07. He defined what

is jurisdiction and how it is conferred on a Court as decided

in cases like Oloba V. Akereja (19880 75 at 1 at 21?,

Ademola V. Adetanyo (2005) FWLR (Pt.259) 1977 at

1985, Oloruntoba – Oju Vs. Abdu – Raheem (2009) 13

NWLR (Pt.1157) page? and Sections 6 (6) (b) and 272 of

the Constitution of the Federal Republic of Nigeria, 1999

(as amended), conceding to the learned Counsel to the

Appellants submission that it is to the Writ of Summons and

Statement of Claim that the Court turns in determine

whether it has the requisite jurisdiction.

In so doing, he continued, the Court considers also the

parties, the nature of claim and the subject-matter of the

suit. citing further Madukolu Vs. Nkemdilim (1962) ALL

NLR 567; the learned Counsel stated that the State High

Courts have unlimited Jurisdiction to

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hear and determine cases brought before them by

aggrieved parties once it is not caught by any of the

disabilities which would rob them of jurisdiction. In the

instant case, the learned Counsel for Appellant submitted

that there are no such disabilities and accordingly the Trial

Court possessed the requisite jurisdiction to hear and

determine the matter not on Appeal.

He explained the nature of the claim as contained in the

writ of summons and Statement of Claim at pages 1 -3 and

15 – 18 particularly paragraphs 2 – 16 of the claim

submitting on the authority of Sterling Civil Engineering

(Nig.) Ltd. V. AMB. Yahaya (2005) ALL FWLR (Pt.

263) 628 at 646, Para. C, that the claim of the

Respondent was in trespass to land which is actionable at

the person who is in minimal or slight exclusive possession

and title (based on tracing of root) are different and failure

of one does not affect the ability of the other to succeed.

Reacting to the learned Counsel for the Appellant’s

submissions in paragraphs 4.08 and 4.09 of the Appellant’s

Brief and the reliance placed on Ranking Udo & Ors. V.

Mbiam Obot & Ors. (1989) 1 NWLR

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(Pt.95.) 59 at 64 Ratio 15 Per Nnamani, JSC and Odunze

V. Nwosu (2007) 13 NWLR (Pt.1050) 1 at 14 Ratio 16,

Per Atu Kalgo, JSC regarding claims for trespass and

injunction and the putting of title in Issue and the claim by

the learned Counsel that the finding of the learned Trial

authorities. He submitted that the general position of the

law as stated by the Supreme Court is in respect of the

Claimant succeeding at the conclusion of the case and not

in respect of the competence of the action to rob the trial

Court of jurisdiction to hear and determine the case.

We were urged to disregard the entire arguments of the

learned Counsel for the Appellant on Issue No. 2. Paras.

4.08 – 4.012 of his Brief as they have not addressed the

issue as to whether the Reliefs/Claims of the Respondent

were/are justifiable as constituted in the Lower Court. He

submitted further that the learned Trial Judge after a

careful perusal and appraisal of the facts and application of

the law came to the conclusion that the Court below had

jurisdiction to entertain the suit. It was further submitted

that he demonstrated that the Court below appreciated the

issues before her, she

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looked at the claim and statement of claim, articulated the

use by defining trespass from several sources citing cases

to expound it after which she came to the conclusion earlier

quoted. Referring to the locus classicus of Ejike Ugorji V.

Eze (DR.) A. I. Orukogu (2005) ALL FNLR (Pt. 271) 66

at 78 paras. C – E; which the Learned trial Judge cited

amongst others, he submitted that in none of those cases

did either the Supreme Court or the Court of Appeal say

that the action is not maintainable or justiciable but the

Courts rather said that for the Plaintiff to succeed, he must

prove better title than that of the Defendant.

He added that the Supreme Court did not also hold as

purported by the learned Counsel for the Appellant in any

of those cases, that absence of a claim in Declaration of

title makes the action incompetent. In the view of the

learned Counsel for the Respondent, in an action for

trespass, two separate and independent issues must be

considered:

1. Whether the Plaintiff established his actual possession;

and

2. Whether the Defendant trespassed on it (Odumade V.

Ogunaike (2011) ALL FWLR (Pt.506) 529 at 550

refers).

We were

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therefore urged to discountence the arguments of the

learned Counsel for the Appellant in paragraphs 4.11 to

4.14 of the Appellant’s Brief as the claims for general and

special damages are proper and in order, as well as the

claim for perpetual injunction and the Court below had the

jurisdiction to entertain the action as constituted on the

maxim “Ubi jus Ibi Remedium” (where ever there is a

wrong, there is a remedy).

Concluding his argument of this Issue, the learned Counsel

for the Respondent insisted that Trespass must be distinctly

founded in damages which the Court has the jurisdiction to

award and grant injunction upon proof thereof unless

where the act of trespass had ceased before the award. The

cases of Udo Vs. Obot and Odunze V. Nwosu (supra), he

insisted are distinguishable from the present case as the

former cases were clear-cut disputes as to title to land. We

were therefore urged to resolve Issue Number 2 against

the Appellant.

Issue Number 3: on this Issue which questions whether

title to land was/is specifically claimed by the claimant or

was/is merely deciphered from the body of the Statement of

claim; the learned

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Counsel for the Appellant urged us to strike the said Issue

out as it has no bearing to the case the Appellant having

not joined issues with the Respondent on that point. He

maintained that the Lower Court was right to have held

that the title of the Respondent as claimed was/is

unchallenged on the authority of Ejike Ugorji V. Eze

(DR.) Onukogu (supra) where the Supreme Court made

it clear that once the Defendant claimed to be owner of

land in a case for trespass, then title to the land is put in

issue and in order to succeed the Plaintiff must show better

title than the Defendant.

In the instant case, the learned Counsel/Respondent

reiterated that the Appellant as Defendant has not filed a

Defence to the action of the Respondent (as claimant) nor

has the Appellant laid claim to the ownership of the land in

dispute. Moreover, it was also submitted, the trial Court did

not make any award of any claim in the suit to the

Defendant as the finding of the Lower Court at page 112 of

the Records that it could not draw any inference of any

dispute to title, the claim being unchallenged, does not

mean and cannot be interpreted to mean that the learned

Trial Judge

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had awarded a claim of title to the Respondent.

According to the learned Counsel for the Respondent, that

portion of the Ruling of the learned Trial Judge is obiter

dictum and the case of Odunze V. Nwosu (2007) 13

NWLR (Pt. 1050) 1 at 14 Ratio 3; cannot therefore

apply.

ISSUE NUMBER 4 (FOUR):

Reacting to the submission of the learned Counsel for the

Appellant on this Issue which questions whether the family

of Onyewueke of Umuakaje who the Attorney Claims to be

representing in the suit now on appeal is a person known to

law that can sue and be sued; Emegano, Esq answered the

question in the affirmative for purposes of maintenance of

action to protect family property. He went on to state the

definition of a family as decided in Okulate V. Awosanya

(2000) FWLR (Pt. 25) 1066 at 1019 paras C – D;

submitting that it is judicially noticed that land and

property are owned by an individual or a family, the

concept of family property being original to our indigenous

s o c i e t y a n d t h e b e d r o c k o f o u r l a w o f

inheritance.Usiobaifo V. Usiobaifo (2001) FWLR (Pt.

61) 1784 at 1799 para. E. (CA) and the said case on

Appeal to the Supreme Court reported in

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(2005) ALL FWLR (250) 131 at 149 (S.C); where Sale of

family land by a members of the family as his was held to

be void was cited in support of the above submission on the

recognition of family as a legal entity for the purpose of

holding or owning land as well as protection of interest

thereof.

Consequently, a member of the family, the family Head or

principle members can sue to protect family land and/or

can donate a power of Attorney to any person to protect

their interest on the family land, he further submitted. In

the l ight o f the foregoing, i t was the learned

Counsel/Respondent’s further submission that the

Appellant cannot therefore contended as he had done in

paragraphs 6.01 – 6-.05 of the Appellant’s Brief of

Argument which content ion according to the

Respondent/Counsel is a gross misconception of the law

relating to family property and inheritance. Okulate V.

Awosanya (supra) at page 1666; where Efunwape

Okulateke brought the action for the Demike family while

Olarenwaju Ogundipe brought for Ogundipe family was

cited as an example supporting the view of the Court below

that there are proper parties in the case now on appeal

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before us as can be gleaned from paragraphs 1-6 of the

Statement of claim and the power of Attorney donated to

Respondent by the family and the holding of the Court at

page 81 of the Records where he posed the question which

she answered.

The learned Counsel for the Respondent once more

conceded to the statement of the general principle by the

learned Counsel for the Appellant in paragraph 6.02 of the

Appellant’s Brief but contended that the Appellant failed to

relate same to the instant case except for the academic and

abstract technicality which the said Counsel for the

Appellant latched on in his argument even where the

Appellant has not been misled by the nature of the case nor

has the Appellant suffered any discomfort there from.

He urged us in the quest to do justice to be imbued with

the dictates of equity and reason as dictated by the dictum

of Pats-Acholonu, JSC (of blessed memory) in the case of B.

B. N. V. Olayiwola & Sons Ltd. (2005) 3 NWLR (Pt.

912) 434 at 443 -445; noting that this is a matter that

started in 2008, where of the Appellant has not filed any

defence there to but has rather been filing one objection or

the other

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and now this. Appeal in line with the knack of big

corporations to frustrate cases by such frivolous objections

and Appeals as in this case even where they do not have

any defence in law. We were accordingly urged to resolve

this Issue in favour of the Respondent and dismiss the

Appeal as it lacks merit, with substantial costs in favour of

the Respondent.

RESOLUTION OF ISSUES

ISSUE NUMBER ONE (1) :

“WHETHER THE SUIT AS CONSTITUTED IS PROPER

IN LAW THAT IS TO SAY WHETHER THE PLAINTIFF

OR CLAIMANT AS THE CASE MAY BE CAN ALSO BE

AN ATTORNEY IN THE CASE”.

In the resolution of this first issue, I must not fail to remark

that the general position of the Law that where, as in this

case, the Respondent sued in representative capacity of the

family of Onyewueke of Umuakaje, Umuseke, Okwudor,

Njaba, Local Government Area, Imo State, he is the sole

Plaintiff and as has been held in Otapo V. Sunmonu

(1987) 2 NWLR 587, he assumed the position of dominus

Litis until Judgment since he had/has stepped into the

shoes of the Family that donated the Power of Attorney in

his favour to prosecute the matter on their behalf. He only

ceases to have the

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powers conferred on him at the end of the case and after

judgment (Okonji V. Njokanma (1989) 4 NWLR 161

refers) and if he happened to abandon the case it was left

for the trial Court to substitute for him one of those

represented as if the substituted member of the family had

been in the action from the time of its commencement.

Accordingly, what is needed in circumstance of where a

party sues in representative capacity is the indication of

such capacity under the party’s name in the title of the suit.

“Thus”, as explained by the learned Author and Senior

Advocate of Nigeria, Fidelis Nwadialo in his Civil Procedure

in Nigerian second Edition, University of Lagos Press, 2000

at Page 116 Citing Re Tottenham (1896) and the Nigeria

cases of Ede V. Udegbo & Ors. (1961) NWLR 9 and Nta

V. Anigbo & Ors. (1972) 5 SC;

“If a party, “A. B.“ is representative Plaintiff for the

members of a Club “X”, he should be mentioned in

the title of the Suit as, “A. B” ... Plaintiff “(On behalf

of himself and members of “X”)”.

The same Statement as to capacity must be

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made in the endorsement of the Writ, in the title and body

of the pleadings” See Ude V. Nwara (1993) 2 NWLR

638.

I am not oblivious of the decision of the Supreme Court in

Vulcan Gases Ltd. Vs Gesellschaft Fur Industries

Gasverwertung A. G. (G. I. V.) (2001) 1 FWLR 1 at 26

paras. D –G Per Iguh, J. S. C.; who in a case where one

Mr. Okunlola as Counsel had without the authority or

Power of Attorney of the Respondent, instituted the action

at the trial Court and an Application was subsequently

brought to substitute learned Counsel’s name with the

Respondent, stated the position of the law thus:

“I think I ought to observe, in the first place, that this

amendment of 24th February, 1997 which was not

opposed in no small way helped to save this

proceeding. This is because, the Donee of a Power of

Attorney or an Agent in the presentation of a Court

suit on action pursuant to his powers must sue in the

name of the Donor or his Principal and not otherwise.

See Timothy Ofodum Vs. Onyeacho (1966/67) 10

ENLR 132; Jones Vs. Gurney (1993) W. N. 72; JOHN

Agbim Vs. Mallam Garuba Jemeyita (1972) 2 ECSLR

365.

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-------------------------------------------------------------------------------- ---------

------------------------------------------------------------------------------------------

--------------------------------------

Accordingly, have regard to the amendment of the

24th February, 1997, it must be deemed that it was

the Respondent itself that commenced this action in

its own name ab initio and all arguments relating to

whether or not Mr. Okun–lola had the locus standi at

the time he commenced the proceeding as a Donee of

a Power of Attorney automatically go to no issue.”

The contribution of Uwaifo, JSC at pages 51 – 55 of the

above Judgment is most instructive and it is necessary to

reflect on it as applicable to this Appeal before us. Even in

that case where Akinlola Esq. commenced that action when

his capacity was challenged and he subsequently filed the

Power of Attorney which led to the amendment of the writ

of Summons and Statement of Claim, the Supreme Court

unanimously agreed that the said learned Counsel ab initio

had the locus standi following the amendment to reflect his

true capacity.

At page 51 paragraphs G

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– H to page 52 Paras A – H; the Emeritus Law Lord

reasoned rather instructively and refreshingly that:

“In the case of a Plaintiff in a representative action, it

is generally understood that he claims to represent

numerous other persons having the same interest,

including himself, so that every person so

represented, though not named on the Record, is a

party to the action. It is always the issue of common

interest. Rules of different Courts make adequate

provisions for representative action. See, Idise Vs.

Williams International Ltd. (1995) 1 NWLR (PT. 370)

142; Ovenseri Vs. Osagiede (1998) 11 NWLR (Pt. 572)

1. See also Detart Vs. Stevenson (1876) 1 Q. B. D.

313; Prestney Vs. Mayor & Corp. of Colchester (1882)

21 Ch. D. 111; Bedford (Duke of) Vs. Ellis (1901) A. C.

1."

Holding further that the case was not one of representative

action and the Court of Appeal Per Mohammed, J. C. A. (as

he then was) may not have appreciated this fact when he

held that if Plaintiff sues in any representative capacity, it

shall be expressed in the Writ of which Mr. Okunlola had

done when he had not been invested with the Power to sue

but

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which Power he eventually acquired. The learned Emeritus

Justice of the Apex Court also reflected on the reliance

placed by Mohammed, JCA then on the Rules of Supreme

Court of England (RSC Order 20, Rule 5 C4) in holding that

Okunlola, Esq had no capacity when he took out the writ

but before the hearing of the action a Power of Attorney

duly executed and showing that the learned Counsel, a

Barrister and Solicitor in the Chambers of Messrs. Beatrice

Fisher & Co; had been invested with the Power to

represent the Respondent and that without doubt, Mr.

Okunlola was the lawful Attorney and representative of GIV

in the Suit in question and posited that:

“As I had said, the focus should have been on whether

the Respondent (GIV) had the right to sue and

whether it could do so by its lawful attorney and not

(a) whether Mr. Okunlola had locus standi (as pressed

by Mr. Oyeyipo) since MR. Okunlola was not seeking a

relief for himself either solely or in common with the

Respondent, or (b) whether there was a power of

attorney or (c) whether this is a representative action

(as the Lower Court appeared to have concerned itself

with). It was simply a situation

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of Agent and Principal”.

The Emeritus Law Lord then alluded to submission of Dr.

Babalakin Esq, as he was then on behalf of the Respondent,

which he describe as refreshing and made the real issues in

contention clearer that there was no dispute that the

Respondent had a legal right to sue. The Appellant in that

case and that all that happened was that the Appellant

(GIV) chose to do so through the instrumentality of Mr.

Okunlola. In the words of learned Counsel.

“In short, what we have is the case of a disclosed

agent acting for a disclosed principal. What was

lacking in this particular case was therefore evidence

of capacity in which Mr. Okunlola was suing. This

evidence was furnished before hearing began on the

originating summons. It is, therefore, submitted that

in the entire circumstances of the case, it would lead

to manifest injustice if the Appellant were to

successfully vitiate the suit of the Respondent simply

on the basis that the person who the Respondent

instructed to sue on its behalf did not have the

evidence of such instruction at the time he filed the

action”.

Upon the foregoing submission of DR. Babalakin

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which his Lordship accepted as the appropriate position of

the law, he insisted that the case was that of a principal

and Agent and not of locus standi but that the question to

be answered as we shall also pose herein is whether Mr.

Okunlola (in this case Emeka Emegano Esq) had the

authority of GIV (in this case the family of Onyewueke of

Umuakaje Umuseke, Okwudor, Njaba L. G. A; Imo State)

which question he answered by delving into the law of

Agency and the mode of creation of such relationship citing

Lord Diplock, L. J;

In Freeman & Lockyer Vs. Buckhurst Park Properties

(Mangal Ltd. (1964) 2 Q. B. 480 at 502 and Pages 1

Para. 1.01; 6 Para. 1-034 of Bowstead & Reynolds on

Agency, 16th Edition having explained that the law is

settled that one on whose behalf an act is done is called the

principal and the one who is to act is called the Agent.

Agency, according to the learned Law Lord, exists between

two persons when one of whom expressly or impliedly

consents that the other should act on its behalf so as to

affect his relations with third parties and that the other

who similarly consent to so act.

According to him, the authority so created

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is called actual authority express or implied and that it is

said that the simplest way that an Agency relationship may

arise between Principal and Agent and as regards third

parties is by express appointment whether written or oral

by the principal. As to the mode of creation and scope of

authority vested by a Principal Diplock L. J; in the Freeman

V. Buckhurst Park Properties (Mangal Ltd (supra) held

that:

“An “actual” authority is a legal relationship between

principal and Agent created by a consensual

agreement to which they alone are parties. its scope

is to be ascertained by applying ordinary principles of

construction of contracts, including any proper

implications from the express words used, the usages

of trade, or the course of business between the

parties”.

It is against this background that we shall now resolve the

question whether the Plaintiff or the claimant can sue as

both Attorney and Claimant. Learned Counsel for the

Appellant had relied on Timothy Ofodum V. Onyeacho

(suing as Agent of the Administrator General for the

Estate of Ernest Egbuna – Deceased (supra) cited also

by Iguh, JSC in Vulcan Gases

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Ltd. Vs. G.F.I.G. (supra) which had been analyses above

where it was held that:

“As both the High Court and Magistrates’ Court Rules

are silent on the procedure to be adopted in

instituting legal proceedings by holders of powers of

Attorney or Agency, the Donee of a power or Agent

must sue in the name of the Donor or his principal in

accordance with the Procedure contained in Order 16

Rule 1 of the Rules of the Supreme Court of England.

The Donee of a Power or an Agent may indicate on the

writ his capacity as an Attorney or Agent.”

There is no doubt that Order 16 Rule 1 of the Rule of

Supreme Court provides that: “A person holding the

Power of Attorney and suing on behalf of his principal

should sue in the name of his principal only”.

However this action was commenced in the High Court of

Imo State of Nigeria at the Nkwerre Judicial Division and as

the 1st day of April, 2008 when the writ of Summons was

issued at the instance of the Plaintiff (now Respondent) the

High Court of Imo State (Civil Procedure) Rules of Imo

State, 2008 had become operative. the makers of the Rules

must have anticipated frivolous objections

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of the nature which have now become the hallmark of legal

practitioners of the likes of the learned Counsel for the

Appellant when they provided amongst others in Order 13

Rule 34 thus under Chapter IV of that Order Captioned: “IV

Legal Practitioners”: “34 where by these Rules any

act may be done by any party in any proceedings,

such act may be done either by the party in person, or

by his legal Practitioner, or his agent (unless an

agent is expressly barred under these Rules”.

Besides, even if the Respondent commenced the action in

the name of the wrong person as claimant Order 13 Rule 2

expressly stipulates that;

“Where an action has been commenced in the name

of the wrong person as Claimant or where it is

doubtful whether it has been in the name of the right

claimant, a Judge may order the substitution or

addition of any other person as claimant on such

terms as may be just”.

In the instant case as was rightly submitted by the learned

Counsel for the Respondent, taking its peculiar,

circumstances into consideration, Order 16 Rule 1 of the

Supreme Court of England Rules, no longer applies as the

Civil

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Proceedings in the Imo State High Courts, are now

regulated by the Imo State High Court (Civil Procedure)

Rules, 2008 which has made adequate provisions to obviate

the lacunae created hitherto in the erstwhile High Court

Civil Procedure and (Civil Procedure) Rules in the

Magistrates Courts of yore that warranted the decisions

like Timothy Ofodum V. Onyeacho (supra) and John

Agbuin V. Mallan Garba Jemeyita (supra) following the

English case ofJones V. Gurney (supra) cited by Iguh,

JSC. In the case of Vulcan Gases Ltd. V. G. F. I. G

(supra).

For now even if we go by the decision in Vulcan Gases

(supra) the Respondent had been appointed expressly as

Agent of the family of Onyewueke for purposes of

Protecting the collective interest of that family. For the

avoidance of doubt, the Respondent as Plaintiff had pleaded

the antecedents of his capacity in paragraphs (10, (20, (3),

(4) and (5) of the Statement of claim where it is stated that

he is a practicing lawyer who brought the actions as

Attorney to the members of Onyewuke family of Umuakaje,

Umuseke, Okwudor, Njaba L. G. A. of Imo State. The Power

of Attorney of 25/6/2007 made by members of the

Onyewueke

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family is specific on the powers donated to the Respondent.

At pages 57 – 60 of the Records, the said power of Attorney

by its Recitals and Addendum have clearly stated that same

is created by the Donors –MESSRS. CELESTINE

ONYEWUEKE, JEROME ONYEWUEKE BASIL

ONYEWUEKE, UCHE ONYEWUEKE, LOUIS

ONYEWUEKE as representatives of ONYEWUEKE

FAMILY OF UMUAKAJE, UMUSEKE OKWUDOR,

NJABA LOCAL GOVERNMENT, IMO STATE which

expression as Donors include their Heirs, Executors,

Administrators, Personal Representatives or Assigns.

(1) The Donors are said to be owners by Customary

inheritance of all that piece of land known as and called

“ALA IKPA” Land wherein MTN Communication Ltd is

contracting and/or constructed a Commutations Mast.

(2) The Donors as landlords were also desirous and in dire

need of the services of a legal practitioner to properly

manage, protect, demand and procure all the entitlements

due the Donors as owners of the land.

(3) The Donors had requested Barrister Emeka Emegano, a

legal Practitioner with his Office at Plot No. 120 Ikenegbu

Layout, Owerri the Donee which expression shall also

include his heirs,

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Executors, or Administrators, Personal Representatives and

Assigns, to recover any compensation/entitlements etc due

to the Donors from MTN Communications Nig. ltd in

respect of the said land.

ALL MEN by the said Power of Attorney were warned to

note that they (the Donors) in consideration of the

Professional Services of the Donee had nominated,

appointed and constituted the Donee their Lawful Attorney

to do and execute all or any of the acts following that is to

say:

“1. To represent us in all matters, negotiations

discussion etc involving owners of land occupied by

MTN Communications Nig. Ltd.

2. To demand, accept and/or receive all or any

compensation/reparations, entitlements or any

payments whatsoever on behalf of the Donors from

MTN Communications NIG. LTD. or from any person

or group of persons in respect to the crux of the

question posed by this Issue.

3. To institute legal action, commence, persecute,

enforce, demand, enter into, defend action and other

proceedings in any Court of Law in his name or in the

name of any person or group of persons selected or

appointed by him for the purposes of demanding,

enforcing and

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receiving any compensation/reparations or any

benefit whatsoever accruing and/or due and payables

to the Donors in respect of the property”.

I therefore agree with the learned Counsel for the

Respondent and on the authority of Dr. Ntia V. Jones

(2007) ALL FWLR (Pt.357) 1606 at 1611 and having

carefully perused the pleadings at pages 15- 18 of the

Records and the terms of the Power of Attorney, I hold that

the Power conferred on the Plaintiff/Respondent herein and

even if he brought the proceedings in his name only (which

is not the case herein as the Plaintiff/Respondent has

clearly stated in the writ of summons and statement claim

that Barrister Emeka Emegano (was suing as Attorney to

the Family of Onyewueke of Umuakaje, Umuseke, Okwulor,

Njaba L. G. A; Imo State); authorized him by clause three

thereof to act as both counsel and Attorney to the

family/Donor of the power of Attorney by the phrase “in

his name or in the name of any person or group of

persons selected or appointed by him for the

purposes”.

Accordingly, the general proposition of the law as stated in

Timothy Ofodum V. Onyeacho (supra); where the Rules

of the

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Supreme Court of England was invoked is not applicable to

this case as the Donee of the Power of Attorney in the cases

cited by the learned Counsel for the Appellant brought the

action in their names without reflecting the name of the

Donor even when the letter authorizing him to sue was

general in nature as against the express and specific if not

absolute powers donated to Barrister Emagano in the

present Appeal.

I agree therefore that even on the authority of Vulcan

Gases Ltd. V. G. F.I. D. (supra) Per Uwaifo, JSC at 54

paras. B –C and D – A page 55, of the Report which I hereby

adopt having seen that the authority to sue was in writing

as per the Pleadings of the Respondent and the power of

Attorney pleaded which was express written authority

existing before the writ of Summons and Statement of

Claim were taken out that power of Attorney which is a

formal instrument by which one person (in this case the

family of Onyewueke) empowered the Plaintiff to represent

him in all ramifications, or act in their stead for the purpose

of protecting the family’s interest in their land and for the

specific purpose of instituting the action, the

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Claim or Suit of the Respondent as constituted in Lower

Court was competent.

As said earlier assuming that there was an error in stating

the right Claimant; Rule 2 of Order 13 of the Imo State

High Court (Civil Procedure) Rules, 2008 which was

applicable when the suit was initiated could have been

invoked to ameliorate the hardship this would have

occasioned the Donors in the initiation of the proceedings

in the wrong name. See, Arase V. Arase (1981) NSCC

(Vol. 12) 101 at 115.

Again even by the specific provisions of Rule 34, the

Plaintiff/Respondent as the legal Practitioner duly

authorized by the FAMILY OF Onyewueke as their Counsel

and Agent can step into the shoes of the family as he has

not been expressly barred under the Rules of the High

Court of Imo State 2008. In Chief Gani Fawehinmi V.

Nigerian Bar Association & Ors. No 1 (1989) 4 S. C.

N. J. (Pt. 1) 1 at 23, Obaseke, JSC, had held that: “A

legal practitioner cannot be deprived of his rights and

privileges by a mere allegation that he is a party when

there is no claim or cause of action against him or a

proven allegation of infamous conduct in a

professional respect”.

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Earlier at page 21 of the same Report the Emeritus Law

Lord had reasoned that: “The word ‘represent ‘ in the

context of legal representation means to act or stand

for or be an agent for another”.

The above cited case arose in the Supreme Court from a

Preliminary Objection on the issue of appearance of

Counsel who was equally a Defendant in a case and some of

the questions for determination were whether a party who

is also a legal practitioner can appear for other parties in

the same suit as Counsel and conduct the other parties’

case from the Bar and whether the Counsel/Defendants

whose appearances was objected to in the Lower Court

should be allowed to appear for another Defendant from

the Bar and while in robe, rather than from the well of the

Court and without their gowns.

See also Mosheshe General Merchant Ltd. V. Nigeria

Steel Products Ltd (1987) 2 NWLR (Pt. 55) 110 S.C;

Akanbi V. Alao (1989) 3 NWLR (Pt.108) 118 at 141

S.C; Ngwu V. Ozougwu (2001) WRN 26 S. C; Ibon V.

Agbi (2004) 6 NWLR (Pt.868) 78 S. C. and FRN V.

Adewunmi (2007) 10 NWLR (Pt.1042) 399 on the

Scope of

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Counsel’s authority in representing his client.

On another score, the learned Counsel for the Appellant in

one of his gymicks has purported in what the learned

Counsel/Respondent terms legal gymnastics in the

paragraphs 3. 07 and 3.08 of his Brief of Argument

submitted that the Respondent’s case is compounded by his

calming damages for trespass by his claiming damages for

trespass by the Defendant into Plaintiff’s land known as

“ALA IKPA” which according to the learned Counsel for the

Appellant, contrary to Paragraph 2 of the Statement of

Claim the land no longer belongs to the family of

Onyewueke of Umuakaje but now the plaintiff or claimant

going by the said Claims 1 and 2 of the Statement of Claims

1 and 2 of the Statement of Claim at page 18 of the

Records:

One cannot come to terms with the above submissions in

the face the heading of the Suit that Barrister Emegano

sued as Attorney to the family of Onyewueke of Umueakaje,

Umuseke, Okwudor, Njaba Local Government of Imo State

and the Respondent had clearly pleaded in Paragraph 1 of

the Statement of claim that he brought the action as

Attorney to the members of the

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O n y e w u e k e f a m i l y w h o a p p o i n t e d h i m ( t h e

Plaintiff/Respondent) as their Attorney. In paragraph 2 of

the Statement of claim, the Plaintiff pleaded that the

Onyewueke family are the owners in possession of the

piece or parcel of land known as and called “ALA IKPA”

situate at Umuakaje, Umuseke, Okwudor, Njaba Local

Government Area of Imo State.

In paragraphs 3 and 4 of the Statement of Claim the

Plaintiff had traced the origin of that land from the Family’s

forebears from time immemorial until it devolved on the

present members of the family who Donated their powers

to the plaintiff to initiate the action in respect of the land.

(See pages 15 and 16 of the Records) on their behalf.

At page 18 of the Records the Plaintiff who had stepped

into the shoes of the family claimed the damages on behalf

of the family and whatever damages is awarded

subsequently shall go to the family by virtue of the terms of

the Power of Attorney donated to the Plaintiff. This is a

species of representative action and accordingly, both the

named Plaintiff and those represented are parties to the

Suit although the Plaintiff/Attorney to the family is dominis

litis

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until the suit is determined. Having initiated the suit on

behalf of the family, the Respondent has duly reflected the

name of the family for and on behalf of whom the Suit was

instituted so long as the mandate of the family remains

accepted and uncountermanded. Therefore, any decision

arrived at by the Court upon determination of the suit

would bind the family of Onyewueke who claim to be the

owners of the land and donated the authority to sue in the

plaintiff’s name or any other person or group of persons

authorized by the Plaintiff to the said plaintiff/Respondent.

Accordingly, the family of Onyewueke of Umuakaje,

Umuseke, Okwudor, Njaba local Government Area of Imo

State would be deemed to present throughout the

proceedings by the presence of the Plaintiff/Respondent for

a Judgment given in favour of the Plaintiff/Respondent as

an Attorney of the family is for the benefit of the family.

See pages 110 and 111 of Civil Procedure in Nigeria second

edition by Fidelis Nwadialo, SAN and the cases of Okeke

V. Olughor (1995) 5 SCNJ 217 at 226; Ekennia V.

Nkpakara (1997) 5 SCNJ 70 at 88; Ede V. Nwidenyi, In

RE: Ugadu (1988) 5 NWLR 189; Okanji V. Njokanma

(1989)

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4 NWLR 161 at 169, Opebiyi V. Oshobajo & Anor

(1976) 9 – 12 S. C 195 at 200, Otapo V. Sunmonu

(1987) 2 NWLR 587, Pabiekun & Ors. V. Ajayi (1966)

1 ALL NLR 197 and Per Tobi in Dr. Augustine N. Mozie

& 6 Ors. V. Chike Mbamalu & 2 Ors. (2006) LPELR –

1922 (SC) at PP 17 -19 Paras. D – B; Okoli & Ors. V.

The SURVEYOR – General Anambra State of Nigeria

(2002) LPELR – 242 (SC) at 19 Paras A –D Per Wali, JSC

From the above cited authorities, the learned Counsel for

the Appellant cannot seriously contend as he had done that

the suit is improperly constituted and therefore robs the

Lower Court of jurisdiction. I agree with the submission of

the learned Counsel/Respondent that the Appellant’s

learned had lost touch of the fact and law that once an

Agent or Attorney is appointed, he steps into the stead of

the Donor of the claims himself.

ACCORDINGLY, THIS ISSUE IS RESOLVED AGAINST

THE APPELLANT.

RESOLUTION OF ISSUE NUMBER TWO:”WHETHER

THE LOWER COURT HAS JURISDICTION TO

ENTERTAIN THE SUIT VIS-A- VIZ THE RELIEFS

CLAIMED:

In the resolution of this second Issue I must not fail to

agree

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with the submission of the learned Counsel for the

Appellant and the authority of Integrated Timber and

Plywood Products Ltd. V. Union Bank of Nigeria Plc.

(2006) 12 NWLR (Pt.995) 483 at 489 (see page 502

Paras. D -F); where Ogbuagu, JSC quoted with approval

the dictum of Obaseki, JSC in Tukur V. The Government

of Gongola State (1989) 4 NWLR (Pt.117) 517, (1989)

9 SCNJ 1 that:

“It is a fundamental principle that Jurisdiction is

determined by the plaintiff’s claim (Izenkwo (sic) V.

Nnadozie) 14 W. A. C. A. 361 at 363 – per Goussey, J. A;

Adeyemi V. Opeyori (sic) (1976) – 10 S.C. 31 at 51. In

other words, it is the claim before the Court that has to be

looked at or examined to ascertain whether it comes within

the jurisdiction conferred on the Court. (See Western

Steel works V. Iron & Steel Workers (1987) 1 NWLR

(Pt.49) 284. Judges have no duty and indeed no power to

expand the jurisdiction conferred on them but they have a

duty and indeed jurisdiction to expound the jurisdiction

conferred on them. See, African News papers of Nigeria

& Ors. V. The Federal Republic of Nigeria (1985) 1

ALL NLR 50 at 175 (1985) 2 NLR (Pt.6) at

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137. See also Per Tobi, JSC In the land mark case

ofInakoju V. Adeleke Oladoja’s CASE) (2007) 4 NWLR

(Pt.1025) 423 at 588; who following previous landmark

cases on jurisdiction like Nnonye V. Anyichie (2005) 8

WRN 1 at 22, NDIC V. CBN (2002) 18 WRN 1, (2002)

7 NWLR (Pt.766) 272; Elabanjo V. Dawodu (2006) 15

NWLR (Pt.1001) 76; Okulate V. Awosanya (2000) 2

NWLR (Pt.646) 530 at 556-557; Adeyemi V. Opeyori

(1976) 9 – 10 S. C. 31 at 51, Tukur V. Gongola State

(supra) Egbuonu V. BRTC (1997) 12 NWLR (Pt.531)

29 at 43; restated the position of the law that it is trite

that in the determination of jurisdiction of a Court to

entertain and determine a suit the Court process to be used

is the Statement of claim and the Relief sought therein."

In that case which was fought by way of Originating

summons, the emeritus Law Lord reasoned that the Court

process to be used is the affidavit in support of the

Originating Summons and that the Court will not examine

the Counter-Affidavit or statement of Defence even if filed.

In the same case he emphasized the importance of

jurisdiction as being a radical and crucial question of

competence for if the Court of

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trial as in this case had no jurisdiction to hear the case, the

proceedings are a nullity ab initio, however well conducted

and brilliantly decided they might be, as a defect in

competence is not intrinsic but rather extrinsic, to the

entire adjudicatory process. Jurisdiction therefore

according to the Emeritus and erudite judicial Icon, “is the

nerve centre of adjudication; it is the blood that gives life to

the survival of an action in a Court of law; in the same way

blood gives life to the human being and the animal race.

(Onyeanucheya V. Military Administrator of Imo State

(1997) 1 NWLR (Pt.482) 429; Madukolu V. Nkemdilim

(1962) 2 SCNLR 341; Barsown V. Cleinessy

International (1999) 12 NWLR (Pt. 632) 516; Chief

Utih V. Onnoyivwe (1991) 1 NWLR (166) 166 referred.

See further A. G. Federation V. Abubakar (2008) 16

NWLR (Pt.1112) 135 at 158 paras. B – D Sunday

Gbagba righa V. Adikumo Toruem & Anor. (2013)

MRSCJ (Vol. 16) 93 at 101 paras. B –E Per Rhodes-

Vivour, JSC.

There is also no doubt that it is now settled without citing

of any authority that because of the thresh old nature of

jurisdiction, the Court must proceed to determine

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it before proceeding with the hearing of the matter on the

merits and that in so doing it is the case of the Plaintiff as

Stated in the originating process that determines the

jurisdiction of the Court. See Hon. Prof. Chudi

Uwazurike & Anor. Vs. Chief Austin Nwachukwu &

Anor (2013) MRSCJ (Vol.12) 70 at 84 paras. E – I, Per

Onnoghen, JSC.

However, this is how far as I can agree with the learned

Counsel for the Appellant in his submissions on this issue

and the cases cited like Usman V. Baba (2005) 5 NWLR

(Pt. 917) 113 at 134 paras. A – B. Per Jega, JCA (of

blessed memory) which re-emphasized the position of the

law as stated in the cases earlier highlighted with the

greatest respect even though Nnamani, JSC had in the case

of Ranking Udoh & Ors. V. Obot (1989) 1 NWLR

(Pt.95) 59 at 64 Ratio 15;held that in a claim for

trespass, one need not necessarily be the owner of land and

that what is required is that the claimant proves exclusive

possession not title but that where the claimant claims

damages for trespass and injunction against further

trespass, it follows that he has put his title in issue, which

position was buttressed in Odunze &

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V. Nwosu & Ors. (2007) 13 NWLR (Pt.1-1050) 1 at 53

paras. E – F but by Onnoghen, JSC who held that:

“Apart from the unambiguous claim of the

Respondents for declaration of title, it is settled law

that where a plaintiff claims for damages for trespass,

as in the instant case, his title to the land allegedly

trespassed upon, title thereby put in issue. In other

words for the Plaintiff in such a case to succeed, he

must first establish his title to the land in dispute

before proceeding to establish possession thereof”.

As right as the decisions of the learned Justices of the Apex

Court are, I must State here clearly, that the learned

Counsel misapprehended the purports of the Respondent’s

claim and the dicta of their Lordships in the case above

c i t e d . I n m y h u m b l e v i e w , t h e c l a i m o f t h e

Plaintiff/Respondent in the Lower Court is in the tort of

Trespass to land and all that the plaintiff ought to show and

prove at the hearing as can be gleaned from his pleadings

and Reliefs claimed is that he was in exclusive possession

of the land as at the time the Appellant’s trespassed upon

the same. This is because Trespass as a

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tort is actionable at the instance of a person in exclusive

possession. This position of the law had long been

established by our Court in a plethora of cases of settled

antiquity like Adio V. Fatukasi (1972) 2 U. I. L. R. 51;

Adeshoye V. Shivonika (1952) 14 W. A. C. A. 86;

Odebanji V. Okunola [1968] N. M. L. R. 221 (S.C)

Renner V. Annan [1935] 2 W. A. C. A. 258 Will V. Will

(1924) 5 N. L. R. 76; Akpiri V. West African Airways

Corporation (1952) 14 WACA 195, and Oluwi V. Eniola

[1967] N. M. L. R. 339 (S.C); where it was variously held

that in a case of trespass, the Plaintiff must first establish

that he is in possession of the land at the time of trespass

complained of or who is deemed to have been in such

possession at such time of the trespass the rationale being

that trespass is an injury to possession rather that to title.

Thus, an owner of land who is legally entitled to possession

is ordinarily not competent to maintain an action in

trespass before having possession.

It has therefore been held that possession is so important

that a tenant or a licensee in possession can bring an action

in trespass, his possession must be clear and exclusive, but

the

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slightest amount of possession would suffice to entitle the

person in possession to recover against a mere trespasser.

Although an owner of land ordinarily ought not to bring an

action in trespass, where as in this case, the trespasser by

the construction of the mast shall cause permanent injury

to the land which shall affect the value of their inheritance,

they (owners) can bring an action for the injury to their

interest.

See Tongi V. kalil 14 WACA 331 followed in Eze V.

Owusoh [1962] 1 ALL NLR 138.

That all that a claimant in Trespass to land simpliciter

ought to show is exclusive possession was amply

demonstrated by Tobi, JSC in the celebrated case of

Yekin Adedokun Oyadare V. Chief Olajire Keji & Anor

(2005) LPELR - 2861 (SC.) (2005) 7 NWLR (Pt.925)

571, (2005) I. S. C (Pt.1) 19 where he held inter alia

pages 21 – 22 paras G – C of the LPELR earlier cited thus:

“It is trite law that trespass to land is actionable at

the suit of the person in possession of the land. The

person can sue for trespass even if he is neither the

owner nor privy of the owner. This is because

exclusive possession of land gives the person in

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such possession the right to retain it and to

undisturbed enjoyment of it against all wrongdoers

except a person who could establish better title.

Therefore, anyone other than the true owner, who

disturbs his possession of the land can be sued in

trespass and in such an action, it is no answer for the

Defendant to show that the title to land is in another

person. To resist the Plaintiff’s claim, a Defendant

must show either that he is the one in possession or

that he has a right to possession”

See further page 20 paras. A – B. where the Emeritus Law

Lord earlier held that it is good law that a plaintiff who

succeeds in proving acts of possession can obtain Judgment

claiming trespass as acts of possession and enjoyment of

land could be evidence of ownership or right of occupancy.

See also per Ogbuagu, JSC in Mather Echere V.

Christopher Ezerike & Ors. (2006) LPELR – 1000 (S.C)

at pages 23 – 24 Paras A – C; E – F, Tukuru V. Sabi

(2013) Vol. 222 LRCN (Pt.1) 65 at 86 Paras. EE – J and

page 87 para. A per Ngwuta, JSC.

Upon a consideration of the above authorities the

submission of the Counsel is neither

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here nor there as the Plaintiff’s claim was justiciable as

rightly held overruling the Appellant’s preliminary

objection of 6/6/12 that the claim of the Plaintiff or his

Reliefs as sought are not justiciable. Upon a careful perusal

of the pleadings of the Plaintiff/Respondent he simply

sought for damages and injunction against the

Defendant/Appellant for trespassing on the land in

question. The Plaintiff/Respondent had pleaded the origin

of the land and exclusive possession and ordinarily,

trespass is actionable perse and the law presumes that

damage flows with it, Depending on the degree of damage

proved the Appellant would naturally be entitled to General

damages but where he has pleaded special damages which

he specifically pleaded with particulars, he was expected to

adduce evidence in proof of the particulars of special

damages at the hearing (see, Adurumokumer of

Bakakodia V. Sillo of Omadino 14 WACA 123 at 125

followed inAttah V. Nnacho [1964] 1 ALL N. L.R. 313 S.

C. and Aromire V. Awoyemi [1972] 1 ALL W. L. R. 101,

(S.C), and if proved would be entitled to such damages.

It has been held that a claim in trespass and for recovery of

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possession are self –contradictory and should not be joined

together as one postulates that the Plaintiff was not in

possession at the relevant time whilst the other suggests

that he was.

I am therefore at sea at the submission of learned Counsel

for the Appellant that the findings of the learned Trial

Judge in his Ruling at “page 112 of the Records runs

counter to the Supreme Court decisions as cited on when

the title to the land is put in issue where a Plaintiff sues for

trespass.

As I said earlier, a claim in trespass is not dependent on

declaration of title as can be seen from the Respondent’s

pleadings and Reliefs. See Oluwi V. Eniola (supra) and

Ekeresu & Anor V. Oyobebere & 5 Ors. (1992) 11 – 12

SCNJ (Pt. II) 189 at 205.

However where as in this case the Respondent sought for

damages and injunction, and in view of the decisions of the

Supreme Court cited per Nnamani JSC (of blessed memory)

and Onnoghen, JSC, the onus is/was on the Respondent to

prove his title or better title to the land if the Appellant

joined issues by Pleading that it was entitled to possession

of the land. In the case at hand the

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Defendant through his counsel was contented with filing

Notices of Preliminary Objections on frivolous reasons so as

to frustrate the hearing of the plaintiff’s claim which they

have succeeded to a large extent to achieve, as the hearing

of the substantive case has been put in abeyance for almost

eight years.

It would be recalled that the Appellant questioned the

competence of the claim of the Respondent as he has done

here in on the basis that there is nothing to show that the

land the subject-matter of the suit referred to as “Ala Ikpa

Land” situate at Umuakaje, Umuzeke, Okwudor, Njoba L.

G. A. of Imo State is the subject of any Statutory/Customary

Right of Occupancy granted or deemed to be granted by

the Governor/Local Government of Imo State under the

land use Act and that Reliefs sought are only ancillary

Reliefs which are not justiciable in the absence of

Declaratory Relief with regard to title as per ground one

above”.

Upon hearing the learned Counsel on their respective

written Addresses, the learned Trial Judge in a well

considered Ruling after citing judicial texts and decision

came to the inevitable conclusion at

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page 112 of the Records lines 5 – 16 thus:-

“Paragraphs 2 -14 of the Statement of claim of the

Respondent filed on 29/7/2008 is relevant. There in

the Respondent traced their title to the land and also

averred that they were in possession. Incidentally, the

Applicant has not filed it’s Statement of Defence, thus

leaving the averments of the Respondent

unchallenged though in an Application of this nature

it is only the Statement of claim that is relevant. The

Court cannot in the light of the above draw any

inference of any dispute to title, the claim for title

being unchallenged.

see also the case of: Ejike, Ugorji Vs. Eze (Dr. A. I.

Onukogu (2005) ALL FWLR (Pt. 271) 66 at 78 Paras.

C – E (S.C).

From the totality of the above, I hold that the claim

before the Court is proper and valid.”

Incidentally, Ejike V. Eze (DR.) A. I. Onukogu also

reported in (2005) LPELR – 3322 (SC) has been cited

herein by the learned Counsel for the Respondent in urging

us to discountenance the submission of the learned Counsel

on this Issue. At pages 18 -19 Paras F – A. Oguntade, JSC;

who read the Judgment of the

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Supreme Court relied on the dictum of Fatuyi – Williams

JSC (as he then was) in Pius Amakor V. Obiefuna (1974)

ALL N. L. R. 109, (1974) 3 S. C. 49 also reported in

(1974) LPELR – 452 (SC) at Pp. 11 Paras F – G; 12

Paras. A – G and 13 paras A – C, in case that was on all

fours with ours and who restated the settled position of the

law that a person can sue for trespass even if he is neither

the owner nor privy of the owner. This is because exclusive

possession as we had held earlier, gives the person in such

possession the right to retain it and in undisturbed

enjoyment of if against all wrong doers except a person

who could establish a better title.

He further held that anyone other than the true owner, who

disturbs his possession of the land, can be sued in trespass

and in such action it is no answer for the Defendant in that

case who even filed a Statement of Defence to show in his

paragraph 7 thereof that the title to the land was in another

person. In the words of the sage:

“To resist the Plaintiff’s claim, a Defendant must

show either that he is the one in actual possession or

that he has a right to

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possession.”

In support of the right of a person (be he even a trespasser)

in possession of land as against the true owner to devise or

convey his interest in the land or transmit it by inheritance;

he cited the dictum of Cockburn, C.J; In Asher V.

Whitlock (1965) L. R. 1 Q. B. Page 1 at page 5; where

he remarked that:

“But I take it as clearly established that possession is

good against all the world except the person who can

show a good title; and it would be mischievous to

change the doctrine. In Dyeball Mood and M346, one

year’s possession by the Plaintiff was held good

against a person who came and turned him out; and

there are other authorities to the same effect.

Suppose the person who originally enclosed the land

had been expelled by the Defendant, or the Defendant

had obtained possession without force, by simply

walking in at the open door in the absence of the then

possessor, and were to say to him: you have no more

title than I have, my possession is as good as yours;

surely ejectment could have been maintained by the

original possessor against the Defendant”.

On the position taken by the learned Counsel to the

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Appellant herein which was erroneously also taken by the

Trial Court in the said Amakor V. Obiefuna citing the

West African Court of Appeal case of Kponuglo V. Kodaja,

the learned Sage held that case never decided that in all

claims for trespass and injunction, title must be proved. His

Lordship of blessed memory then dealt the dead blow to

the position taken by the learned Counsel for the Appellant

here in when he submitted that Respondent ought to have

rooted his claim on declaration of title before damages and

injunction can be granted him when he (the learned Judicial

Icon) posited:

“Generally speaking, as a claim for trespass to land is

rooted in exclusive possession, all a plaintiff need to

prove is that he has exclusive possession, or he has

the right to such possession, of the land in dispute

but once a Defendant claims to be the owner of the

land in dispute, title to it is put in issue, and in order

to succeed, the Plaintiff must show a better title than

that of the Defendant. This is clearly the position in

the Kponaglo’s case as can be gleaned from the

extract from page 24 of the Judgment”.

The above dictum of His

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Lordship is the true purport of the Ruling of the Learned

Trial Judge at page 112 of the Records and this position of

the law as enunciated is what some of us were taught and

are familiar with as being the true state of our law.

Where, as in this case, the Defendant did not claim to be

the owner of the land in dispute by filing its Statement of

Defence, the learned Trial Judge was right to have ruled as

he did that the Defendant had not filed any/its Statement of

Defence “thus leaving the averments of the Respondent

unchallenged” He was also right to have arrived at the

conclusion that he could not draw any inference from the

Statement of claim at that juncture that there was any

dispute as to title, the claim being unchallenged.

The only and proper inference which he ought to and did

draw from the surrounding circumstances of the case was

that the Respondent claim/Reliefs sought from the trial

Court in trespass was competent and that the Court was

properly seised of the requisite jurisdiction to entertain and

determine same.

To buttress the position taken by the learned Trial Judge

and as rightly submitted by the learned

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Counsel/Respondent that the Supreme Court and indeed

his Court in the cases relied upon by the learned Counsel

for the Appellant in support of his submissions on this

Issue, did not say that an action in trespass is not

justiciable unless accompanied by a claim of Declaration of

title. Oputa, JSC (also of blessed memory) had put it beyond

question in Ranking Udo & Ors. V. Mbiam Obot & Ors.

(1989) 1 N. S. C. C. 45 at 53 lines 7 – 8 that:

“Trespass to land and Declaration of title to land are

two distinct and separate claims. These claims may

arise from two distinct causes of action and an action

in trespass will not constitute a bar to a future action

for title: Brunsden V. Humphrey 14 q. b. d. 141”.

Since the authorities cited by the learned Counsel for the

Appellant did not decide that absence of a claim for

Declaration invalidates a claim in trespass or renders a trial

Court bereft of jurisdiction. I agree with the learned

Counsel/Respondent on the authorities of Odumade V.

Ogunaike (2011) ALL FWLR (Pt.506) 529 at 550 and

on the doctrine of Ubi Jus ubi Remedium, more so as

trespass can found Reliefs in damages and

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injunction, that the Court below had the jurisdiction to

entertain the Respondent’s suit.

This Issue shall also be resolved in favour of the

Respondent and against the Appellant as the Court below

did not award title to the Respondent. Odunze V. Nwosu

(2007) 13 NWLR (Pt.1050) 1 at 14 Ratio 3 (S.C) Per

Chukwua-Eneh, JSC; was cited out of context so wereKalio

V. Daniel-Kalio (1975) 2 S. C. 15, Okeowo V. Migliore

(1979) 11 S. C 13 and Omoboriowo V. Ajasin [1984] 1

SCWLR 108; which were rightly decided on their peculiar

facts and circumstances.

I therefore reaffirm the dismissal of the Appellant’s

Preliminary Objection for being not only erroneous but

most frivolous.

RESOLUTION OF ISSUE NUMBER 3 (THREE)

“WHETHER TITLE TO LAND IS SPECIFICALLY

CLAIMANT BY CLAIMANT IN HIS RELIEFS OR

MERELY DECIPHERED BY A COURT FROM THE

BODY OF THE STATEMENT OF CLAIM?”.

Although the learned Counsel concedes that this Issue has

been addressed already and taken care of by their

submissions under Issue Number 2 (TWO), the Issue merely

beggars the answer as we have also copiously dealt with

the question of how to determine jurisdiction of a

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Court of trial when it is raised or questioned by way of

preliminary objection as the learned Counsel did in the

Court below.

In the same way that jurisdiction can be determined from

the Statement of Claim and the Reliefs sought so can a

Court determine from the pleadings and the Reliefs sought

whether titles is in Issue. For instance following the

decisions of the Supreme Court like Ranking Udo & Ors.

V. Mbian Obot & Ors (supra); Integrated Timber &

Plywood Products Ltd. V. Union Bank Nig. Plc. (2006)

12 NWLR (Pt.995) 483 at 489 and Odunze V. Nwosu

(2007) 13 NWLR (Pt.1050) 1 at 14; we can even deduce

that where the Plaintiffs pleaded the pedigree of the land

right from its founding fathers through whom it devolved

until it got to their hand as well sought Reliefs in damages

and injunction, then the inference could have even been

drawn that title to the land was in issue.

Sometimes also, the Pleadings of a Plaintiff may be obscure

such that the trial Court would strain every nerve and

scrutinize the entire case of the Plaintiff with a tooth comb

in order to decipher the true purport thereof. In such a

case, title to land may be deciphered

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from the body of the Statement of claim. Again, in the

peculiar circumstance parties found themselves where the

Respondent sued for Trespass and claimed damages and

injunction as Reliefs, if the Appellant had joined Issues by

filing his Statement of Defence pleading that they were the

owners of the land or the ones entitled to exclusive

possession, then the title to the land would automatically

be put in issue and whoever prove better title would be

given Judgment or in the alternative where there is no

Counter-Claim and the Plaintiffs who have the onus and

burden of proving title depending on the strength of their

case would have the suit dismissed if they failed to

discharge the burden of proof at the close of each other’s

case.

As we had earlier held and in total agreement with the

learned Counsel for the Respondents, the learned trial

Judge was on very firm ground when he ruled that at that

juncture of the Preliminary objection, the title of the

Respondents remained unchallenged and assuming the

Defendant after this Appeal still refuses to file its statement

of Defence, the Respondents who have allegedly put the

title of the land in issue, shall

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be required to prove their case and if the Court below is

satisfied that they have established their title, shall proceed

to grant them the Reliefs sought and if they fail to do

so their claim would be dismissed.

As had been submitted on the authority of Ejike Ugorji V.

Eze (DR.) Onukogu (supra), if the Defendants/Appellants

had by their Statement of Defence claimed to be the Owner

of the land in dispute, still title would have been put in

i s s u e a n d i t w a s s t i l l i n c u m b e n t o n t h e

Plaintiffs/Respondents to prove better title. However, it is

unfortunate that the Defendants/Appellants have not filed

their Statement of Defence and have been/apply employing

a l l m a n n e r o f s u b t e r f u g e t o f r u s t r a t e t h e

Plaintiff’s/Respondent’s case. If they intend to challenge

the title of the Plaintiff they should go ahead and file their

statement of Defence so that issues can be joined and the

case heard on the merits or in the alternative allow the

plaintiffs to prove their case on the pleadings so filed or

still in the alternative concede to the plaintiff’s claim and

negotiate with them for compensation.

For now, the Lower Court was right to have held as

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it did at page 112 of the Records that the Court could not in

the l ight of the unchallenged averments of the

Plaintiffs/Respondents in their Statement of claim infer that

title had been put in issue by the Defendants who had not

filed any Statement of Defence. The Court by so Ruling did

not award title to the Respondents as the learned Counsel

for the Appellant has insinuated by citing Odunze V.

Nwosu (supra) and kalio V. Daniel –Kalio (supra)

which rightly decided that a Court is not a Charitable

organization or Father Christmas that would grant Reliefs

not sought or claimed by parties gratuitously.

On the whole, apart from the fact that the Court rightly

decided that the Defendant had not put the title of the land

in issue, Issue Number 3 as rightly submitted by the

learned Counsel/Respondent has no bearing with the case

as it is a mere academic question which ought to have been

struck out. Accordingly, having resolved Issue Number

Two(2) earlier on in favour of the Respondent and against

the Appellant, this Issue which is tied to the already

resolved Issue, is also resolved against the Appellant.

RESOLUTION OF ISSUE NUMBER FOUR (4)

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“WHETHER THE “FAMILY OF ONYEWUEKE OF

UMUAKAJE” WHO THE CLAIMANT/RESPONDENT

CLAIMS TO BE REPRESENTING IN THE COURT

BELOW IS A PERSON KNOWN TO LAW?”

In the resolution of this Issue shall from the onset concede

to the learned Counsel to the Appellant and the authorities

of MAILATIA V. Veritas Insurance (1986) 4 NWLR

(PT.38) 802 at 804 and Emecheta V. Ogueri (1996) 5

NWLR (Pt.447) 227 at 231 as ably cited by him that a

party who should commence action in Court must be a

person known to law that is legal person and that generally

an non -juristic person cannot sue or be sued.

By the concept of legal personality as has been espoused by

our jurisprudence over the years the general position of the

law is that only natural persons, in other words human

beings and artificial or juristic persons (bodies corporate)

are seised of the capacity or competence to sue and be

sued. In Chief Aderibigbe Jeoba V. Osho Owonifari (1974)

10 S. C. 157 at PP 163 – 165; the Supreme Court

commenting on theory of legal personality denied a person

thus:

“In legal theory, a person is any being whom the law

regard as capable of rights and

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duties. There are two kinds of persons distinguishable

as natural and legal. A natural person is a human

being while a legal contemplation such as a joint

stock company or Municipal corporation. In

jurisprudence, the term applies to corporation such

as limited liability companies or Municipal

Corporation; it may also apply to churches, hospitals,

or Universities if they are in corporate or registered

as such. Their creation and existence have been aptly

described by Salmond in his Book (12. Edition) P.

220”

In Nigeria Nurses Association & Anor V. Attorney-

General of the Federation & Ors. [1981] 11 -12 S. C. 1

at 12; Obaseki, J.S.C, postulating on this concept posited

that since the concept of artificial personality came into

existence by legal will and fiat, they must necessarily exist

only at the pleasure of the law and their extinction or death

is called dissolution. On the other hand, the personality of a

human being commences from birth and ceases to exist at

death. At death therefore, such a being ceases to possess

rights obligations and therefore can no longer be capable of

suing and be sued.

What emerges from the above analogies

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is that like natural persons only those artificial bodies that

by virtue of their incorporation have acquired rights and

concomitant obligations or duties are empowered to sue

and be sued. The rationale behind this legal concept is that

litigation is all about the determination of legal rights and

about the determination of legal rights and obligations and

accordingly, only parties with such vested rights or locus

standi, who have life either natural or legislation, can

initiate actions or can be proceeded against. See

Fawehinmi V. Nigeria Bar Association (No.2) (1989) 2

NWLR 558 at 595 and Management Enterprises Ltd.

V. Otusanya (1987) 2 NWLR 179 and in particular ZAIN

Nigeria Ltd. V. Alhaji Mohammed Kawu Ilorin (2012)

LPELR – 9249 (CA) a decision of the Ilorin Division of this

Court, Per Agube JCA at pages 60 – 62 Paras. A – B

Now, the contention of the learned Counsel to the

Appellant on this Issue is that at the Court below they had

contended that the “the family of Onyewueke” purportedly

represented by the Respondent is not a person known to

law and herein on Appeal they further insist that the said

family cannot by any

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stretch of imagination be said to be an identifiable legal

person or persons in law who can sue or be sued.

Accordingly he has lampooned the holding of the learned

Trial Judge at pages 81 lines 21 and 82 lines 1 & 2 of the

Records that:-

“I therefore hold that the Suit is properly constituted.

There is nothing before the Court showing that

Onyewueke family does not exist or is not a legal

personality”, as being an error in law.

According to the learned Counsel for the Appellant they fail

to see how “Onyewueke Family” or “the family of

Onyewueke” constitute a legal personality in the light of

decided authorities like Agbonmagbe Bank Ltd. V.

General Manager G. B. Olivant (1961) ALL N.L.R 116

and Okechukwu & sons V. Ndah (1967) N. M. L.R 368.

There is no doubt that in the said case of Agbomagbe Bank

Vs. General Manager G. B. Olivant, case, one of the earliest

decided on this legal personality and parties to a suit, the

Plaintiff in that case named the 1st Defendant in the

Statement of Claim as “General Manager, G. B. Olivant

Ltd.” and an objection was raised on the grounds that such

name was not

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of a person known to law and as such could be sued and

therefore ought to be struck out of the suit. it was

submitted by the Plaintiff that the description of the 1st

Respondent was a misnomer which could be amended by

order of Court. The Court however held that there were

authorities to the effect that in a case of misnomer, if

application is made for the substitution of proper names by

amending the writ this could be granted but that in the said

case, the 1st Defendant not being a Legal person its name

was struck out. See however Carlen V. Unijos (1994) 1

NWLR (Pt. 323) 631.

In this case however, the learned Counsel for the Appellant

canot seriously contend as he has done both the Court

below and here in that the family of Onyewueke of Umuakje

who the Respondent claimed to be representing is not

known to law. In the first place the learned Counsel for the

Respondents has aptly cited the case of Okulate V.

Awosanya (2000) FWLR (Pt.25) 1666 at 1679 paras. C-

D; where. Uwaifo, JSC adopted the definition of “family” as

given by the Shorter Oxford English Dictionary Vol. 1, 3rd

Edition at page 723 to mean: “The body of persons who live

in

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one house or under one head, including parents, children,

servants, etc……… The group consisting, of parents and

their children whether living together or not; in wider

sense, all those who are nearly connected by blood or

affinity……. Those descended or claiming descent from a

common ancestor; a house, kindred, lineage”.

The learned law Lord continued para. F of the same page

that: ‘In my opinion, family membership is no more than

family affinity or consanguinity or lineage”.

As rightly submitted by the learned Counsel/Respondent

that it is a matter for judicial notice that land and property

are owned by an individual or family and that the concept

of family property is ingrained in our indigenous society

and the bedrock of inheritance particularly as it related to

land ownership. This point was emphasized in Usiobaifo

Vs. Usibaifo [2001] F. W. L. R. (Pt.61) 1784 at 1799

Per Ibiyeye, JCA who posited in paragraphs D – E thereof

and rightly too that:

“It is settled law that the concept of family property is

original to our indigenous society and the bedrock

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of our law of inheritance. The most common circumstance

of creating family property is death intestate of land owner,

whose estate is governed by Customary law. Such land

devolves to his heirs in perpetuity as family land. Another

method of creating family land is by conveyance intervolves

where land is purchased with money belonging to the

family: family land can also be created by the use of the

appropriate expression in the Will of the owner of such

land. See the cases of Olowosago & Ors. V. Adebanjo &

Ors. (1988) 4 NWLR (Pt.88) 275 at 287; Lewis V.

Bankole 1 NLR 81; and Shaw Vs. Kehinde (1947) 18

NLR 129”.

From the above authorities, it is clear and without doubt

that the law recognizes the family as and entity under

whose canopy a member or members or through their

Attorney an action can be brought to protect such family

property.

From the definition of the term family” the Suit of the

Plaintiff was properly instituted by and on behalf of persons

(natural entities) that constitute the Onyewueke family. In

the Power of Attorney Donated to the Plaintiff/Respondent

the legal Personalities of Celestine Onyewueke, Jerome

Onyewueke, Basil

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Onyewueke, Uche Onywueke and Louis Onyewueke whose

names demonstrate their common ancestry, affinity,

connection by blood, kindred, descent and lineage as well

as consanguinity as members of the Onyewueke Family of

Umuakaje, Umuseke, Okwudor, Njaba Local Government

Area of Imo State had Stated that they were owners by

Customary inheritance of the disputed land called “ALA

IKPA” wherein the Defendants erected their Mast without

their consent.

Above all, the Plaintiff in Paragraphs 2 – 8 of the Statement

of claim had traced the origin of that land and how it came

or devolved on them from their ancestor by inheritance.

according to them the said piece devolved on them from

their forebears who deforested same and made diverse use

of same until the land got to Onuoha and to Onyewueke,

who was the grand father of the Plaintiffs who donated the

Power of Attorney to the named Plaintiff. In paragraph 4 of

the Statement of claim they pleaded the family tree from

(1). AWUZIE, who begat Mr. Jerome Onyewueke and

Vincent Onyewueke amongst others;

(2). IUah Onyewueke who was the father of Louis

Onyewueke amongst others;

(3). Emmanuel

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Onyewueke who begat. Uche Onyewueke amongst others

children;

(4). Celestine Onyewueke (the only surviving Onyewueke

child; and

(5). Basil Onyewueke.

They have therefore pleaded their common ancestry and in

the rest of the paragraphs 5 – 8 that the land is family

property commonly owned and where they farm and reap

economic crops also in common. The learned Counsel must

be suffering from forensic myopism to have failed to see

how “Onyewueke family” or “the Family of Onyewueke”

constitute a legal personality in the light of the authorities

we have analyzed.

If the learned Counsel is still in doubt as to the legal

personalities behind the Onyeweueke family, I wish to draw

his attention to the fact that in Efunwape Okulate & 4

Ors. V. Gbadamosi Awosanya 2 Ors. [2000] F. W.L R.

(Pt. 25) 1666 which was decided several years after the

cases cited by the learned Counsel, the Appeal was

initiated by Efunwape Okulate (For Denike family) the 1st

Appellant which for the 2nd Appellant, Olarenwaju

Ogundipe family and Gbadamosi Awosanya, Adebayo Akilo

and Bolaji Akodu were (For themselves and on behalf of the

Olisa

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Family).

Again, if the myopic vision of the learned Counsel is yet not

cleared, I shall draw his attention to text “AFRICAN

INDIGENOUS LAW: PROCEEDINGS OF WORKSHOP

BY THE INSTITUTE OF AFRICAN STUDIES

UNIVERSITY OF NIGERIA NSUKKA (7 -9 AUGUST,

1974) Edited by Hon. DR. T. O. Elias (Chief Justice of

Nigeria) DR. S. N. Nwabara (Director, Institute of

African studies, University of Nigeria, Nsukka) and

MR. C. O. Akpamgbo (Lecture in Law, University of

Nigeria, Enugu Campus)” Published by the

Government Press, Enugu at pages 43 – 46 particularly

at 43 and 46 when the learned Hon. Justice M. O. Balonwu

in his Essay Capt ioned: “THE GROWTH AND

DEVELOPMENT. OF INDIGENOUS NIGERIAN LAWS

AS PART OF OUR HERITAGE FROM THE BRITISH

COLONIAL POLICY OF INDIRECT RULE”

“One of the institutions of our indigenous

jurisprudence preserved and enforced by the Courts,

as a result of the British Policy under consideration,

is that of Family Property, as a system of land –

holding being organized on similar structures,

Nigerians have a basic and uniform system of land

tenure. this is one developed the community principle

in the

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indigenous Nigerian Law. In most, if not all, Nigerian

societies, the undivided qua individual, is not entitled

to any rights in land, unless he is a member of one or

more land owning groups. So individual has to belong

to a family household, clan, village, or to some social

unit or territorial community before he is entitled to

use for his own benefit land which is in control or

ownership of such groups”.

As if to drum it to ears of deaf and visionless skeptics of the

ilk of the learned Counsel who pretend not to be aware of

this State of our indigenous law the learned Hon. Justice

made it clear that:

“In Nigeria, therefore, it can safely be said that the

unit of landholding is the family, not the individual,

that family property is a uniform tenure of land-

holding in the whole country (with the possible

exception of the North), which indicates a form of

ownership vested in the family as opposed to

individual”.

See the case of Adagun V. Fagbola Per Kingdom, C. J.

(1932) 11 N. L. R. 110 at 111; Miter Bros. V. Ayeni

(1924) 4 N. L. R. 40, Per Van Der Muen JSC; Jacobs V.

Oladunmi Brothers (1935) 13 NLR 1, Majekodunmi V.

Amodu

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Tijani (1932) 11 N. L. R. 25; Taylor V. Willians (1935)

11 N. L. R. 67 at 69 citing Ogunmefun V. Ogunmefun

& Others N. L. R. Vol. 10 Page 82) in holding at page

70 of the Report that is until the family structure, with all

its incidents of native law and custom, has been broken up,

the correct view is that at any moment the ownership of the

family property is vested in the whole family property is

vested in the whole family as trustees for the whole family.

Furthermore, each individual member of the family has in

addition vested in him or her what may be termed as a

right of user during his/her life. That right is purely life

interest which on death of the individual that interest which

on death of the individual that interest reverts to the whole

family toughly reason the user enjoyed by the deceased

individual during his or her life time, the family will

generally permit his or her children to have among them

the same user rights as their parent, if the circumstances of

the family permit. See Davies V. Sagunro & Ors. (1936)

13 N. L. R. 15 and Chief Eyo ITA & Ors V. Asido

(1935) 2 W.A.CA. 339 Per Webber, C. J.

Finally, let me comment the

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immortal dictum of Lord Haldane in the oft-quoted case of

Amodu Tijani V. Secretary of Southern Nigeria [1921]

2 A. C. 399 at 404,

On this subject to the learned Counsel to the Appellant

that:

“The next fact which it is important to bear in mind in

order to understand native land/law is that the notion

of individual ownership is quite foreign to native

ideas land belongs to the community, the village or

the family, never to the individual. This is pure native

custom along the whole length of this coast; and

whenever we find, as in Lagos individual owners, this

is again due to the introduction of English ideas”.

All the cases I had cited were decided by English Judges

who recognized the indigenous custom of family ownership

of land which custom is still extant in areas where the

English concept of individualism has not completely eroded

our value systems like the case at hand. In Igbo land which

Umuakaje, Umuseke, Okwudor, Njaba L. G. A of Imo State

is, land as was recorded by Dr. Meek in his Book: Land Law

and Custom. In the colonies is conceived to belong to a vast

family of which many are dead, few are living and

Countless members

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are still unborn. Moreover, it is also necessary to draw the

attention of the learned Counsel for the Appellant to the

West African Lands Committee Report (Paragraph 91

thereof) where it is stated that:

“A third principle (of land tenure) is that land is

considered as still the property of the original settler,

and thus belonging to the past, the present and the

generations to come”.

From all these authorities which buttress the concept of

family ownership of land and the fact that the family of

Onyewueke is a legal entity on whose behalf the

Respondent to whom a power of Attorney was donated

could initiate the proceeding on behalf of the family. The

learned trial Judge in the resolution of the crucial question

posed by the Preliminary Objection on who are the parties

in the case which answer he gave to be Barrister Emegano

(sung as the Attorney to the Family Onyewueke of

Umuakaje, Umuseke, Okwudor, Njaba L. G. A; Imo State

and M.T.N Nigeria Communications Ltd. His Lordship

added that; “The legal Practitioner by virtue of his

professional calling can act in a suit or suing on his behalf

as His lawful legal Attorney. There is no

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law prohibiting a legal practitioner from so doing. I

therefore so hold that the Suit is properly constituted.

There is nothing before the Court showing that Onyewueke

family does not exist or is not legal personality” which

holding I consider unassailable as the Appellant presented

no evidence of the lack of the family’s lacked the legal

personality or capacity when the constituent members have

been pleaded by the Plaintiff/Respondent.

I agree that all the arguments of the learned Counsel for

Appellant apart from stating the general principle that a

party who should commence action in Court must be a

person known to law or a legal personality and that

generally a non juristic person cannot sue or be sued, were

mere academics and in the abstract full of sound and fury

but signifying nothing.

Luckily for me, in the course of writing this Judgment, I

came across the TEXT CIVIL PROCEDURE IN NIGERIA

SECOND EDITION, BY FIDELIS NWADIALO, SAN at pages

122 – 123’ where the learned Author of blessed memory

commenting on the heading: ‘Defence of Family or

Communal Property by An Individual”,

Posited:

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“A person may institute an action for the preservation

of a property which he owns jointly with others or for

his own interest in it. A family land is an example of

such property. A member of the family may thus sue

in personal capacity to safeguard the land. One of the

issues in. Sogunle And Others V. Akerele And Others.

(1967) NWLR 58; was whether the Plaintiffs were

right in suing for declaration that the land in dispute

was their family land. the Supreme Court answered

the question in the affirmative, holding that a

member of family may take steps to protect family

property or his interest in it but that if had not the

authority of the family to bring the action, the family

would, of course, not be bound by the result, unless

for some reasons the family was stopped from

denying that the action was binding” per Onyeama, JSC

at Page 60 of the Report.

To lay to rest this spurious objection of the learned Counsel

nay this frivolous Appeal Order 13 Rule 12(1) of the High

Court of Imo State (Civil Procedure) Rules, 2008 in

anticipation of developments of this nature as proffered by

the learned Counsel for the Appellant, has provided in very

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clear terms that:

“12(1) where more persons than one have the same

interest in one suit, one or more of such persons may

sue or be sued on behalf of or for the benefit of all

person so interested”.

Again to also lay to rest the question of legal personality of

a family? Order 13 Rule 13(1) has made provision for

representation of persons or classes of persons in certain

proceedings concerning

“(a) administration of estate or

(b) property subject to a trust or

(c) land held under customary law as family or

community property”

Where the persons or class of person members of the class

can be ascertained or not ascertained, for the Court for

purposes of expedient and efficient procedure, to appoint

one or two persons to represent the person or group/class

or member of such Class of persons.

Under Rule 4 of Order. 13 of the Rules: “(4) In the Rule,

the word “class” includes the persons recognized by

Customary Law as members of a family or as members

of a land owning community”.

With the above provisions of the Imo State High Court

Rules and other Judicial authorities and

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texts cited of the Respondent was proper and proper

parties with the requisite legal personalities empowered

the Respondent on behalf of their family to institute the

action to protect their joint family property.

The jurisdiction to entertain the Respondent’s suit. This

Issue is also resolved against the Appellant.

On the whole this Appeal is unmeritorious and same is

hereby dismissed for lacking in merit. The respondent is

entitled to costs assessed at N100,000.00 only.

ITA GEORGE MBABA, J.C.A.: I had the privilege of

reading the lead judgment, just delivered by my learned

brother, Ignatius I. Agube JCA and I agree completely, with

him, that the appeal is wanting in merit and should be

dismissed. I too dismiss it, and abide by the consequential

orders in the lead judgment.

FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft

of the judgment just delivered by my learned brother,

IGNATIUS IGWE AGUBE, JCA and I am in agreement with

the reasoning and conclusions in dismissing this Appeal as

lacking in merit. I abide by the consequential orders made

by the Court.

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Appearances:

Chris Ihentuge, Esq. For Appellant(s)

J. Ogali (Miss) For Respondent(s)

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