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SUIT NO. SC 321/1971

3PLR/1973/14  (SC)



(1973) 12 S.C.


BEFORE THEIR LORDSHIPS                                   







(For themselves and on behalf of Idjezue family)




(For themselves and on behalf of Oghuegbe and Ohoro family)





Land Law -Claim for declaration of title to land – Damages for trespass -Injunction. Evidence – Burden of proof not discharged.

Administrative Law – Ultra vires – Representation order- Irregular.



Dr. Mudiaga Odje for the Appellant.

Mitaire Unurhoro for the Respondents.


IBEKWE, J.S.C. (Delivering the Judgment of the Court): This is an appeal from the decision of the Ughelli High Court by Ogbobine, J., dismissing the plaintiffs’ claim against the defendants for:


“1.     A Declaration of title to the piece or parcel of land at Imodje and described as “IMEGBO LAND” at Orogun “in Eastern Urhobo Division.


  1. The sum of £50 being general damages for trespass on the said Imegbo land; and


  1. Perpetual Injunction restraining the defendants, their servants and/or agents from further going on the said Imegbo land.”


Pleadings were ordered and filed. The plaintiffs, in a somewhat unwieldy Amended Statement of Claim running into 28 paragraphs, averred that they are the owners of the land in dispute, and that this has been so from time immemorial. As is usual in these cases, the plaintiffs traced their traditional history; they also pleaded maximum acts of ownership and possession over a very long period.


On their part, the defendants, in a lengthy Amended Statement of Defence, which runs into 27 paragraphs, traversed the plaintiffs’ claim, generally and specially. They, too, traced their traditional history, and averred that they have exercised numerous acts of ownership over the land in dispute; they also pleaded estoppel, long possession, laches and acquiescence.


At the trial, the 1st plaintiff and 14 witnesses, gave evidence for the plaintiffs; whilst 7 witnesses, together with the 1st and 2nd defendants, testified for the defence. The learned trial judge then went diligently into the mass of evidence before him and, after weighing the traditional history given by the plaintiffs, rejected it, and recorded the following observation:


“After considering the whole of plaintiffs’ traditional evidence, it does appear to me that while their Statement of Claim alleged that Imegbo land was originally owned by Orogun and that it descended to Idjezue through inheritance the general flavour of the evidence of the plaintiffs’ witnesses was that the land was founded by Umusu and Imodje and that it was partitioned by them before they died. The only evidence which supports the allegation in the Amended Statement of Claim was that of 1st plaintiff, but that evidence was scantily supported by his witnesses. Their evidence at its best presents two versions of the traditional history and it is difficult to accept one as against the other version. A party Is bound by his pleading and should not be allowed to set up a case different from his pleading.” (Emphasis ours)


Having done so, the learned trial judge then examined minutely the evidence of acts of ownership tendered by the plaintiffs, in order to ascertain whether these acts of ownership are sufficient to give them title to the disputed land. After weighing all the circumstances of the case before him, the learned trial judge found as follows:


“The sum total of my finding on this point is that the plaintiffs are not enjoying exclusive possession of Imegbo land. For the plaintiffs to succeed in this action they must discharge the onus of proving acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant an inference of exclusive ownership of the whole land; Ededem Archibong v. Ntoe Asim lte AND OTHERS 14 W.A.C.A. 520. The evidence of acts of ownership by the plaintiffs are inconclusive and in my view, I am not satisfied that the plaintiffs have discharged the onus on them. The acts of possession given in evidence by the defendants are by themselves adverse to the continued right of possession of the land by the plaintiffs. The acts of possession by the plaintiffs are not in any-way conclusive and cannot be regarded as positive to warrant the inference that Idjezue was at any time in possession of the entire Imegbo land to the exclusion of Ohoro family.” (Emphasis ours)


The learned trial judge preferred the defendants’ evidence to that of the plaintiffs, reached the decision that the plaintiffs “have not discharged the onus on them to prove their title to Imegbo land,” and dismissed the entire claim.


It is from this decision dismissing their claim that the plaintiffs have appealed to this Court. Learned Counsel for the appellants, Dr. Odje, sought and obtained leave to argue sox new grounds, in addition to the two original grounds of appeal already filed.


It is pertinent to observe at this stage, that there is only one ground of law among the eight grounds of appeal filed, namely, ground 3. We therefore, propose to treat it separately.


The other 7 grounds of appeal are based purely on facts, and we intend to dispose of them briefly together. We have gone carefully into the evidence adduced by the parties and have also examined in detail all the circumstances surrounding this case. It seems to us that the learned trial judge has done justice to the plaintiffs’ case. Nothing that we have heard so far from the learned counsel for the appellants has made us change our mind. Indeed, we have no difficulty in arriving at the same conclusion, as did the learned trial judge, that the plaintiffs have failed to discharge the burden of proof cast upon them in this case.


The rule is that the plaintiff must succeed at the strength of his own case, and not on the weakness of the defendants’ case. But in the case before us, the learned trial judge found, quite rightly in our view, that the defendants’ case was even much more convincing than that of the plaintiffs. We see no reason to disagree with the learned trial judge on this point; nor are we prepared to upset the findings of fact made by him in this case.


We now turn to consider the only ground of law which reads thus:


“3.     The learned trial judge erred in law and on the facts in setting aside the representation order made by his learned brother authorising the defendants/respondents to defend this action for themselves and on behalf of Oghuegbe and Ohoro Family when:


(a)     he (the learned trial Judge) has no jurisdiction and/or power so to do:


(b)     the representation order aforesaid was a firm decision on an interlocutory matter and so constitutes estoppel per rem judicatam,


(c)     the case of Chief Ayomano & Anor v. Ginuwa 119 W.A.C.A. 85 relied upon by him in setting aside the said representation order does not support his decision and he thereby came to a wrong decision.”


There is one significant aspect of this case which calls for special attention, for the simple reason that the only ground of law argued before us is founded upon it. On the 22nd day of November, 1967, the plaintiffs’ counsel filed a motion in Court praying for an Order that the four defendants should defend the said suit for themselves and on behalf of Oghuegbe Family of Okpe-Orogun ……………….


Paragraph 3 of the affidavit in support of the application reads thus:


‘That the said defendants can act for themselves and on behalf of all other members of Oghwuegbe Family of Orogun town.”


The defendants flatly denied the allegation, as is clearly shown in the counter-affidavit deposed to by the 2nd defendant which reads as follows:


“The other defendants and myself belong to the Ohoro Family of Okpe in Orogun and not members of Oghwuegbe family.”


At the hearing of the plaintiffs’ application on the 16th day of February, 1968 before Prest, J., the defendants’ counsel Unurhoro, was recorded as having made the following submission:


“We have no objection to defend this suit in a representative capacity, but we do not belong to the Oghwuegbe family as deposed to in the affidavit of the applicants.” (Emphasis ours)


The record also shows Mr. Akpiroroh, counsel for the plaintiffs, as saying that the defendants counter-affidavit was untrue. He then called upon the learned trial judge to hear oral evidence in order to resolve the issue. Strangely enough, the learned trial judge was somehow taken in by this application, and he there and then proceeded to take oral evidence, at the end of which, he recorded the following finding:


“I am satisfied on the evidence that there is Oghwuegbe family in Okpe and that the defendants come from that family. They may also have come from the OHORO family of Okpe as is common in this part of the country. I will therefore grant the Order as prayed with the amendment that the defendants do defend this action on behalf of themselves and the Oghwuegbe and Ohoro family in Okpe.


It is apparent from the record that, on a mere assertion by the plaintiffs that the defendants could and should represent the Oghwuegbe Family, and, in spite of the stout and repeated denials put up by the defendants, the learned trial judge still ordered them to defend the action for and on behalf of the said Oghwuegbe family.


It seems to us that the learned trial judge adopted a curious procedure, as was borne out by the dilemma which featured in the proceedings, consequent upon the said Order, compelling the defendants to represent the Oghwuegbe Family without their consent. On the strength of the Court Order, the plaintiffs, in paragraph 2 of their Amended Statement of Claim, averred as follows:


“The defendants are descendants of Oghwuegbe of Agbarha Clan in the Eastern Urhobo division, Mid-Western State of Nigeria and have been authorized by the Court to defend the action for themselves and on behalf of their family.” (Emphasis ours).


But the defendants, on their part, continued to protest against the Order in question, as is obvious from paragraph 3 of their Amended Statement of Defence which reads as follows:


“3.     The first part of paragraph 2 of the Statement of Claim alleging that the defendants are descendants of Oghwuegbe of Agbarha is stoutly denied and will at the trial insist on strict proof, but defendants admit that the Court by its order, compelled the defendants inspire of their strong resistance, to defend this action for themselves and on behalf of Oghwuegbe and Ohoro Family. Defendants further state that they belong to Ohoro Family.”



We observe that the plaintiffs’ counsel did not apply for the said paragraph 3 of the Statement of Defence to be struck out, on the ground that it ran contrary to the Order made by the Court. What is more, the Court itself did nothing about it; indeed, there seems to be passive acquiescence by the Court in the defendants’ persistent denial. We believe that we have drawn sufficient attention to the anomaly which arose from this strange order made by Prest, J. But the matter does not end there, for at the trial before another judge, the defendants tendered ample evidence in support of their contention that they do not belong to Oghwuegbe Family. On this particular issue, the trial judge Ogbobine, J., found as follows:


“I have therefore come to the conclusion that I believe the evidence of the defendants and their witnesses that the defendants are not members of Oghwuegbe family and find as fact that they belong to Ohoro family of Orogun. The Order authorising them to defend the action on behalf of Oghwuegbe family was improperly obtained and it is hereby set aside. That order will therefore be substituted for one authorising the defendants to defend the action for themselves and on behalf of Ohoro family of Orogun.”


We agree with Dr. Odje, learned counsel for the appellants, that the learned trial judge lacks jurisdiction or power to set aside the representation order made by Prest, J., as he purported to do in his judgment. In our view, no judge is competent to sit in judgment over the decision or order made by a brother judge.


In the context of our legal system, judicial review is primarily the function of the Appellate Court. Delivering the ruling of this Court in Ukpa Orewere and Ors. v. Rev. Moses Abiegbe and Others (1973) 9 and 10 S.C. 1, at p.6, Elias, C.J.N. said:


“Ovie-Whiskey, J., would therefore appear to have misconceived Order 26 rules 8 and 9, which misconception led him to assume the power of judicial review over his brother judge. We think that the proper course would have been for the plaintiffs/applicants to have come on appeal to the Supreme Court against the ruling of Ogbobine, J:”


We too, take the view that in the case before us, the learned trial judge’s purported exercise of the power of judicial review over the representation order made by his brother judge is irregular. It is therefore set aside.


At this juncture, we wish to stress that in the present case, there does not seem to be any justification for the order compelling the defendants to represent the Oghwuegbe Family, as was done by Prest, J. The Western Region High Court Rules, Order 7 rule 9, under which the trial judge purported to act reads thus:


‘Where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorised by the Court or a Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested.” (Emphasis ours)


We are satisfied that, there is nothing on the record to show that the Oghwuegbe Family and the defendants have the same interest in the subject-matter of the litigation. We therefore, think that the Order of Prest, J., compelling the latter to represent the Oghwuegbe Family is invalid.


It is clear that the defendants did not, at any time, undertake to represent the Oghwuegbe Family; on the contrary, they denied having any tie with that family. With tenacity, they resisted all attempts to make them represent the Oghwuegbe Family, to which, they claim, they do not belong. Furthermore, there is nothing on the record to suggest that the defendants are, in anyway, in a position to represent the interest of that family. Indeed, it is to their credit that they persistently denied that any relationship ever existed between them and the Oghwuegbe Family; and they were adamant in their reluctance to represent that Family. In our view therefore, the representation order that the defendants should also represent the Oghwuegbe Family, made by Prest, J., cannot stand; and it is therefore set aside.


For the reasons we have given, and the decision we have reached, it seems to us, that the appellants can reap no benefit from this ground of appeal. On the whole, the plaintiffs’ appeal fails and it is hereby dismissed.


The appellants shall pay costs to the respondents assessed at N110.


Appeal dismissed.



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