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31ST OCTOBER, 1974.

SUIT NO. SC 2/1973.

3PLR/1974/11  (SC)


(1974) All N.L.R 678

(1974) 10 S.C. 163








  1. W. AMU



  1. J. B. ATANE
  2. J. E. IKPETAN



Land Law Recovery of Possession Account of rents and profits Injunction Representative action Consent to represent Adducing further evidence On who rests the burden.



Mr. J.O. Sadoh for the Appellant.

  1. W. A. Ohiwerei for the Respondents.


IRIKEFE, J.S.C. (Delivering the Judgment of the Court): This appeal raises very limited issues of law. By their writ before the Auchi High Court, the respondents in this appeal claimed as follows against the appellant herein:


“(a)    Recovery of possession of parcel of land, with buildings thereon, measuring 1109.93 square yards demarcated with survey Blocks No. OB 229 to 232 and situated at Sabongidda Ora within the Ubiaja Judicial Division.


(b)     An account of the rents and profits, payable to the plaintiffs, received by the defendant in respect of the said land and buildings.


(c)     An injunction restraining the defendant, his agent and/or servants from further letting of the said properties. Annual rent of the said properties assessed at ₤25.”


It is common ground that the parties to the action are all members of the Sabongidda Ora (hereinafter referred to for brevity as Sabo Ora community in the Ora Clan, formerly Ivbiosakon District, now Owan Division of the Mid-Western State; that the land in dispute, containing an area of 1109.93 square yards is situate in Sabo Ora; that the said land was the subject of a lease for a period of 60 years with effect from 6th September, 1949 between the appellant (for himself and on behalf of the chiefs and people of Ora) as lessor and the Nigerian properties Company Limited (one of the companies in the U.A.C. group of companies) as lessees. the deed of lease was admitted in the proceedings as Exhibit “A”.


The Ora Clan (Owan Division), as the evidence shows, is made up of six village communities, namely, Sabo (otherwise known as Evbiobe), Eme, Ohomora, Oke Ovbiokhuain and Ohia.


Although a good deal of traditional evidence was produced on either side during the hearing, there was, nevertheless, substantial agreement on the main issues. it was, for instance, conceded even by the appellant, that unoccupied land in Sabo Ora is held in trust by the Edion Urukpa (the most senior traditional chiefs representing the two quarters of the town) for the community and that native seeking to utilise such land would have to obtain a customary grant thereof from the Said chiefs. The issue which gave rise to the litigation in this case was whether, as contended by the Respondents, the land in dispute was prior to the execution of the lease, Exhibit “A”, unoccupied land as such vested in the Edion Urukpa on behalf of the Sabo Ora Community, or whether, as contended by the appellant, the land was the subject of a prior grant to him by the Edion Urukpa and as such his own bonafide property, which he could deal with as he might wish. If it was the former, then upon the surrender of the unexpired term in Exhibit “A„ as per Exhibits C and Ct, the land in dispute reverted to the Sabo Ora Community. If it was the latter it would revert to the ownership of the appellant. In dealing with the above issues, the respondents averred as follows at paragraphs 3, 4 and 5 of their statement of claim:


“(3)   The Odion Urukpa of Eguarelu as traditional head chief of Sabongidda Ora has general supervisory and Administrative control over the public and communal lands of Sabongidda Ora and on the advice of the chiefs and elders the Odion Urukpa may allocate such lands to strangers with a right, as administrator of the land, to the reversion of such land.


(4)     Sabongidda Ora Community are the owners of the land measuring 1109.93 square yards, demarcated with survey blocks Nos. OB 229, OB 230, OB 231, 232 situate at the corner of Lamonth Road and Agbanikaka Road, Sabongidda Ora, in Owen Division of the Mid-Western State of Nigeria.


(5)     The said parcel of land is a public land which was used by Sabongidda Ora community first as Eguare Ugha (Sacred home occupied by the most junior Ejere chieftaincy title holder), then as a daily market place before it was leased to Nigerian properties Company (a subsidiary company of U.A.C.) for a term of 60 years at an annual rent of ₤10 under a deed of lease dated 6th September, 1949, signed by the defendant for himself and on behalf of the chiefs and people of Sabongidda Ora as lessor. The said deed of lease will be founded upon at the trial of this suit.”


The above averments were traversed thus at paragraphs 4 & 5 of the statement of defence:


“(4)   Defendant denies paragraph 4 of the Claim. The plot referred to in the said paragraph had been acquired by the defendant in accordance with Ora custom before the lease to the Nigerian Properties Company (a subsidiary of the U.A.C.)


(5)     Defendant denies the allegations in paragraph 5 of the claim.”


On the above state of pleadings and after a rather tedious and protracted hearing in which irrelevant matters were apparently admitted in evidence, the lower court found in substance as follows and allowed the respondents’ claim:


(a)     That the land in dispute as per Exhibit “A” lies and is situated in Sabo Ora (otherwise known as Eviobe).


(b)     That under Ora customary law each of the six villages constituting the Ora Clan owns the land within its territorial jurisdiction and the villages as such do not own land in common.


(c)     That in view of (b) above the land in dispute is the exclusive property of Sabo Ora (otherwise Evbiobe).


(d)     That the land in dispute was unoccupied public land prior to the execution of Exhibit “A” and, as such, upon its surrender by the lessees, would revert to the Sabo Ora community.


(e)     That unoccupied, public land such as that in dispute is vested in the Edion Urukpa and elders of Sabo Ora in trust for the entire community.


(f)      That the land in dispute was never granted by the Sabo Ora community to the appellant prior to the execution of Exhibit “A” so as to constitute him a beneficiary of the reversionary interest therein upon the lesser of the lease.


(g)     That the appellant, in executing the deed of lease Exhibit “A”, did so for and on behalf of the Sabo Ora community who are the lessors, and not as contended by him on behalf of the entire Ora Clan.


(h)     That the respondents were duly authorised by the Sabo Ora community to prosecute their action.


The appellant has brought this appeal against the whole decision of the lower court, and learned counsel representing him, Mr. J. O. Sadoh, obtained leave at the hearing to argue the following amended grounds of appeal:


‘(1)    The trial judge erred In law in giving judgment to the plaintiffs as claimed when it was clear from the printed evidence that the plaintiffs were not the proper persons to bring this action.


(2)     The trial judge misconceived the point of representation as, on the printed evidence, the plaintiffs did not properly represent the persons holding the legal estate in Sabongidda Ora communal land since it was established that the legal title in Sabongidda Ora land vested in the Edion Urukpa and not in Edion Erukpa, chiefs and people of Sabongidda Ora.


(3)     The trial judge erred in law in granting possession to the plaintiffs to the exclusion of the defendant when it was established before the court that:


(a)     The defendant is a member of the community who sought to recover possession of the land in dispute.


(b)     From the order of the trial judge the plaintiffs were not entitled to possession at the time the plaintiffs filed their action on 7/1/70.


(c)     The defendant having validly bought the building of U.A.C. on the land in the absence of such right being specifically reserved to the lessors.


(4)     The trial judge erred in law in holding as follows:


“I therefore believe the evidence of the 1st plaintiff and the testimonies of his three witnesses as tendered in this case in this court ……….. of facts in issue as between the plaintiffs and the defendant”


When such evidence as believed contained facts which were never pleaded.


(5)     The trial judge erred in law in going outside the contents of Exhibit “A” to construe who the parties to the lease agreement were when same was clear from the ordinary meaning of the words used.


(6)     The decision is against the weight of evidence.”


Learned counsel for the appellant argued grounds 1 and 2 together and his complaint on these grounds, as it appeared to us, was that the action was not properly brought because the respondents were not the proper persons to bring this action. In the alternative, counsel argued that, even if it was conceded that the respondents were indeed competent to bring the action, it should have been brought only in the name of the Edion Urkpa in whom is vested the legal estate of Sabo Ora land and not an enlarged body like the Edion Urukpa, chiefs and the people of Sabo Ora. Mr. Sadon next dealt with ground 5 by arguing that, on a strict construction of Exhibit “A” (the deed of lease), the lower court was in error in regarding the lessors as the chiefs and people of Sabo Ora and not the entire people of Ora as is clear on the face of the deed.


Learned counsel did not argue grounds 3 and 6 and we assumed that these grounds had been abandoned. Earlier on, during the hearing we had had to strike out ground 4 as being defective in law.


Mr. J.W.A. Ohiwerei, learned counsel for the respondents, limited his reply to ground 4. On this ground, counsel argued that any interpretation of the lease (Exhibit “A”) which sought to establish that the lessors were any other than the people of Sabo Ora would be perverse. He argued also that, in any event, such an argument was not available to the appellant as it was not part of his case on the pleadings. He accordingly urged us to reject it as it was not made bonafide.


After listening to arguments in this appeal we have found no merit in any of the matters urged on behalf of the appellant. There was credible evidence from witnesses, including the appellant’s brother, Chief Michael Giwa Amu, that the respondents had been duly selected by the Sabo Ora community and also authorised to prosecute this action. This evidence was accepted by the lower court and we are satisfied that that court came to the right conclusion on the testimony before it. We are equally satisfied that, in a representative action such as this, the only legal burden cast upon a plaintiff is that of establishing the existence of a common interest and a common grievance. Such a plaintiff is in fact not bound to obtain the consent of others whom he might claim to represent. The position is otherwise in the case of a representative defendant. See Otuguor Ogamioba vs. Chief D.O. Oghene and Ors. (1961) 1 ALL NIGERIA LAW REPORTS p. 59. It is plain that the only way in which the appellant could have resisted the respondents’ claim is for him to establish as alleged at paragraph 4 of his defence, that the land in dispute had been the subject of a prior customary grant to him by the Sabo Ora community before the execution of Exhibit “A”. He sought to do this by saying that the land had been granted to him in 1947 by the Late Pa Ahonkhai and Asijie both of whom were the Edion Urukpa at that time. There was only the ipse dixit of the appellant on this, and we are in no doubt that it is good law that the burden of adducing further evidence is on the person who would fail if such evidence were not produced. See section 135 of the evidence act and the unreported decision of this court in Suit SC.264/68 Elemo and Ors vs. Molade and Ors. See also Odulaja vs. Haddad (1973) 11 S.C. PAGE 357 at p. 363. The lower court had before it all the evidence and it would have been strange indeed for it to have found otherwise than it did in the face of overwhelming documentary evidence produced by the appellant himself which demonstrated conclusively that the land in dispute could not have been granted to him prior to the execution of Exhibit “A°. We are similarly not impressed by the submission that the lower court was in error in not holding that the lessors in exhibit “A” were the chiefs and people of Ora Clan. The short answer to this submission is that such evidence as there was on this aspect of the case went to no issue, as it was not settled on the pleadings. It was at best gratuitous evidence. See George and Ors. vs. Dominion Flour Mills (1963) 1 All Nigeria Law Reports. p.71. See also N.I.P.C. vs. Thompson (1969) N.M.LR. p. 99.


In the result the appeal fails and it is dismissed. The decision and orders of the lower court are affirmed, and the respondents are allowed costs against the appellant assessed at N160.


Appeal dismissed.



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