3PLR – AYINDE AND ORS V. AKANJI AND ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AYINDE AND ORS

V.

AKANJI AND ORS

IN THE SUPREME COURT OF NIGERIA

22ND JANUARY, 1988

 SUIT NO. SC 196/1985

3PLR/1988/22  (SC)

 

OTHER CITATIONS

(1988) 1 NWLR (Pt.68) 70

 

BEFORE THEIR LORDSHIPS:

OBASEKI, J.S.C.

UWAIS, J.S.C.

KAWU, J.S.C.

WALI, J.S.C.

CRAIG, J.S.C.

 

BETWEEN

  1. BUSARI AYINDE
  2. LASISI LADAPO
  3. ALHAJI ALI OYELEKE

 

AND

  1. ADEDOKUN AKANJI (BALE SAGBO)
  2. KASALI SOBITAN
  3. GABRIEL ODEBIYI
  4. GANIYU ADEYANJU
  5. SUNMOLA KOLADE
  6. MICHAEL OPEOLUWA
  7. FATAI ADISA
  8. JIMOH EGBA
  9. GBADAMOSI AFUTE
  10. SUARA EGBA

 

REPRESENTATION

  1. Ade Obe (with him A. K. Fowe) – for the Appellants

Chief J. O. Fawole – for the Respondents

 

MAIN ISSUES

REAL ESTATE – Landlord and Tenant – Unlawful entry by landlord – Action for trespass and injunction – Customary tenant.

PRACTICE AND PROCEDURE – Suits – Capacity to sue – Joint plaintiffs – When joint action may be maintainable in a representative capacity – 0.7 r.9, High Court Western Region, Nigeria (Civil Procedure) Rules – Consequential orders – Order of non-suit – When appropriate – 0.28 r.3 High Court (Civil Procedure) Rules, Cap. 44 (Laws of Western Region of Nigeria, 1959).

 

MAIN JUDGEMENT

UWAIS, J.S.C. (Delivering the Lead Judgment):

In this appeal the appellants as plaintiffs filed an action on 18th December, 1974 in the High Court of Western Nigeria (now High Court of Oyo State) at Oyo, against the respondents, as defendants. There were originally 10 defendants to the action but one of them Michael Opeoluwa died before the trial of the case commenced.

The plaintiffs’ claims, as stated in their amended statement of claim, are as follows:

(1)     The sum of N5,000.00 being general damages for continuing trespass committed by the defendants on the plaintiffs’ land situate at Onikaninkanin Farm Iseyin District sometime in September, 1973.

(2)     Injunction to restrain the 2nd -10th defendants, their servants or agents from committing further acts of trespass on the said land or further entry thereon and to restrain the 1st defendant from further disturbing the occupation of the plaintiffs on the said land.

(3)     A declaration that the 1st defendant has no right to disturb the occupation of the tenants whose names and holding are shown on the plan L&UD1884A In respect of their holdings whilst their tenancy still subsists.”

Pleadings were filed and exchanged by the parties. At the trial the plaintiffs and defendants called 6 and 7 witnesses respectively to testify on their behalf. In a nut-shell, the plaintiffs’ case is that they had been customary tenants of the 1st defend-ant. In that capacity the plaintiffs had individual holdings for about 20 years. During that period they had paid the customary fees for entering the holdings, as well as the annual tribute called “Ishakole”. The plaintiffs had been planting economic crops on their respective holdings. Sometime in 1973, the 1st defendant, as the owner of the plaintiffs’ holdings, complained that the plaintiffs did not show enough sympathy to him when he had a motor accident. 1st defendant therefore decided to punish the plaintiffs by making them pay, as fine, the sum of N400.00. The plain-tiffs made the payment but to their surprise the 1st defendant brought several per-sons including the 2nd and 10th defendants to the land in dispute. The plaintiffs tendered a plan (Exhibit 1) of the area in dispute and the plan shows their respective holdings and those of the 114 tenants they represent.

Similarly the defendants case is, briefly, as follows:

The 1st defendant granted land to Egba tenants about 34 years ago. Amongst the tenants were the 2nd to 10th defendants who had been in possession of their respective holdings. The 2nd to 10th defendants planted cash crops on their holdings. Apart from the Egba tenants of the 1st defendant, there were customary ten-ants who hailed from towns like Ibadan, Oyo, Iseyin, Iwo and Iware. The defendants also claimed that they had been farming together with the plaintiffs since the plain-tiffs came onto the 1st defendant’s land about 20 years ago, each individual having his holding. In 1958 the title of 1st defendant was challenged in court by one Tanimowo who was the agent of the 1st defendant on the land in dispute. 1st defendant’s Egba customary tenants supported Tanimowo in the case. There were other litigations in which the non-Egba tenants amongst the defendants in the present case supported the adversaries of the 1st defendant. All these cases were won by the 1st defendant. As punishment for their misbehaviour or disloyalty, the 1st defendant repossessed the holdings of all those that did not give him support. The repossessed holdings were not reallocated to new tenants. They were returned to the defendants in 1973 after they tendered apology to the 1st defendant. On the return of the defendants to the land, the plaintiffs and other tenants not affected by the repossession laid false claims on the holdings of the defendants and destroyed as well as reaped the crops planted by the defendants.

In giving judgment for the plaintiffs, learned trial judge made the following important findings:

“On the preponderance of evidence before me I believe the evidence of the plaintiffs as against that of the defendants and accordingly made findings as follows:

(1)     I am satisfied that the 2nd to 10th defendants have never been the lawful customary tenants of the 1st defendant and that they have no farm plots on the land in dispute.

(2)     I am satisfied that the plaintiffs are the lawful customary tenants of the 1st defendant in respect of the one hundred and fourteen farm lands Indicated In respect of each tenant in Exhibit 1.

(3)     I find as a fact that the defendants trespassed specifically on the farmland which were taken over by the Receivers appointed by the Court under an order made on the 30th day of June, 1976………”

Being aggrieved by the decision of the trial court, the defendants appealed from it to the Court of Appeal. The decision of that Court in part reads thus:

‘The appeal is allowed. The plaintiffs/respondents’ claim is dismissed. The judgment of the High Court is hereby set aside and in its place a dismissal is hereby substituted with costs at the High Court and in this Court assessed at N1,000.00 and N200.00 respectively in favour of the defendants/appellants.”

From this decision the plaintiffs appeal to this Court on 10 grounds of appeal. These need not be reproduced as they are encompassed in the appellants’ brief of argument under the 4 issues formulated for the determination of this Court. The Issues are:

“(1)   Whether or not the plaintiffs/Appellants are the lawful customary tenants of the 1st defendant to the exclusion of the 2nd – 10th defendants.

(2)     Whether or not Exhibits 3 and 7 in these proceedings are admissible and the consequences of their wrongful admission in case they were wrongly admitted.

(3)     Whether or not the action was Instituted in a wrong capacity by the plaintiffs who sued on behalf of themselves and the other Onikanyinkanyin tenants of the 1st defendants.

(4)     Whether the area in respect of which the 2nd – 10th defendants were alleged to have trespassed is not ascertainable from Exhibit 1 tendered in these proceedings and whether the plaintiffs as lawful customary tenants of the 1st defendant to the exclusion of the 2nd – 10th defendants on the 1st defendant land in Exhibit t should not succeed in a claim for trespass against 2nd – 10th defendants who had been adjudged to have no farm on the said Exhibit 1:”

However, these issues are more elegantly set-out in the respondents’ brief of argument in the following manner:

“1.     ……. whether the plaintiffs/appellants could sue in a representative capacity on behalf of 114 customary tenants to claim for trespass and injunction when their interests and causes of action were not the same against ten different Defendants/Respondents when there could be no question or claim for joint tort of trespass or liability to pay the same amount of damages.

  1. …… whether the plaintiffs/appellants could succeed in their action for trespass and injunction without proving exclusive possession of or title to the 114 customary farmland in dispute.
  2. …… whether the learned trial judge was right in admitting Exhibits 3 and 7 in evidence when the two judgments were part of the proceedings in criminal cases.
  3. …… whether the Honourable Justices of the Court of Appeal were not justified in interfering with the findings of fact when it was established that the learned trial judge had not appraised and assessed the evidence adduced before him at the trial of the case.”

The determination of the issue raised in No. 2(1) above Is fundamental to this appeal. For if the plaintiffs/appellants had no capacity or common Interest with other plaintiffs (namely) the 114 land holders) to bring a representative action, the proceedings before the trial court would be vitiated – see Oragbaide v. Onitiju (1962) 1 All N.L.R. 32 and Markt & Co. Ltd. v. Knight Steamship Co. Ltd et al, (1910) 2 K.B. 1021.

Now by their pleadings the appellants averred in paragraphs 1 and 3 of their amended statement of claim as follows:

“ 1.    The plaintiffs bring these (sic) action on behalf of themselves and as representatives of the tenants mentioned on the note on the Plan annexed here-with and marked Exhibit ‘A’:’

  1. The plaintiffs and persons in respect of whom this action is brought herein-after referred to as ‘the tenants’ are tenants of the 1st defendant within the land edged red in Exhibit ‘A’. The tenancy still subsists in respect of each of them.”

These averments were met by the defendants in paragraph 10 of their amended statement of defence thus:

“In reply to paragraphs 1 and 3 of the Amended Statement of Claim, the 1st defendant states that the plaintiffs are not representing the legitimate tenants of the 1st defendant but only those people to whom they have allocated the holdings left by the 1st to 10th (sic) defendants and other Egba tenants without the knowledge and/or consent of the 1st defendant. Many of the people listed on the Plan attached to the plaintiffs’ Amended Statement of Claim are not known to the 1st defendant and they are not his tenants.”

The defendants’ averment is to the effect that many of the 114 tenants allegedly represented by the plaintiffs were not the tenants of the 1st defendants and, there-fore, could not have had the same interest with the plaintiffs. In considering the issue joined by the parties in this appeal, learned trial judge made the following observations:

‘The plaintiffs aver in their statement of claim that they bring this action on be-half of themselves and as representatives of the other tenants listed on the plan annexed to the statement of claim………………….

Before I come to review of evidence and my findings, I would like to deal, at this stage with three of the submissions made by counsel. The first is In respect of the capacity in which the action is brought. The defence counsel submitted in effect that the plaintiff (sic) gave land to his tenants as individual, not as a class. …. Mr. Afuye for the plaintiffs, on the other hand, submitted that the action is properly brought in view of the provisions of Order 7 rule 9 of the High Court (Civil Procedure) Rules, which allow one or more persons to bring action on behalf of and for the benefit of themselves and others who have a common interest in the subject matter of the action.”

Learned trial judge then held as follows:

‘The first is that they (plaintiffs) all alleged that they are tenants of the 1st defendant and that they all have their farmlands on a particular portion of the 1st defendants land which is generally referred to in this case as Onikainkain. The second is that most of them are from a particular area that is lbadan and all of them are represented by the 1st plaintiff in their dealings with the 1st defendant. The 1st defendant, himself, admitted that Bused Ayinde, the 1st plaintiff, is the leader of the Onikainkain tenants and that it is through him that he collects money yearly from his tenants for the Aseyin during “Oro’ festival. The third is that they allege that the 1st defendant is trying to dispossess (sic) them unlawfully because they did not give him the large amount of money he demanded and that for this reason and the subsequent disturbances which the 2nd to 10th defendants and others created on their farms with the support of the 1st defendant they have genuine fear of dispossession. I agree with the counsel for the plaintiffs that they do not need any formal order of court to bring action in a representative capacity. The reasons I have stated above show that the plain-tiffs and those they represent have a common interest in the subject matter sufficient to maintain this action under Order 7 rule 9.” (Italics mine).

Order 7 rule 9 of the High Court (Civil Procedure) Rules, Cap. 44 (Laws of Western Region of Nigeria 1959) applicable to this case provides:

“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 Judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested:”

In their appeal to the Court of Appeal the defendants’ counsel submitted that in view of the fact that the plaintiffs owned individual plots, there was no joint owner-ship of the land in dispute and therefore the plaintiffs had no authority to represent other land-holders, as plaintiffs, apart from themselves. In considering the sub-mission the Court of Appeal held as follows:

“It is clear from Exhibit 1 that tenants (referred to therein) each had a separate and clearly indicated individual plots. There is a vast area not shown to be occupied by any plot owner. The cause of action could only arise in relation to each plot of land separately and Individually (which is not the case) considering the pleadings and the evidence adduced by the plaintiffs/respondents themselves. I am in agreement with the submission of the learned counsel for the defendants/appellants that the plaintiffs/respondents have no common interest in the land comprised in Exhibit 1 to warrant the institution of the action in representative capacity.

The trial judge ought to have adverted his mind to the pleadings as a whole and the Exhibits particularly Exhibits 1,3 and 9 in order to decide correctly the issue in this judgment.”

It is true that, on close examination, Exhibit 1 shows that the plaintiffs and the parties they claimed to represent not only had individual holdings, but such holdings are not adjacent and are far apart in some cases; thereby constituting groups of holdings. These groups are not contiguous but clearly separated by a vast expanse as part of the land owned by the 1st defendant which is verged pink in Exhibit 1.

The plaintiffs’ complaint, in this Court, is partly expressed in ground of appeal No. 4 which states:

“4.     The learned Justices of the Court of Appeal erred in law and in fact when they held that the plaintiffs/respondents have no common interest in the land comprised in Exhibit 1 to warrant the institution of the action in a representative capacity.

Particulars of Error

(i)      When there is evidence that the plaintiffs were treated by the 1st defendant in common and as a group.

(ii)     When there is evidence that the 1st plaintiff was put in charge of all the ten-ants and that allotment of plots is made by 1st plaintiff, payment of Ishakole and other contributions are demanded as block payment from the 1st defendant who in turn asked each tenant to pay in accordance with agreed formula amongst themselves (tenants).

(iii)    When the land shown in Exhibit 1 is the property of a single landlord to wit – the 1st defendant who had given it out as a single block to the plaintiffs as his tenants under a single administration headed by 1st plaintiff.

(iv)    When the Individual holding was for practical purposes and administrative convenience only since the parties had agreed that the land comprised in Exhibit 1 is the absolute property of a single landlord – the 1st defendant and that the plaintiffs are not making any rival claim to that of the landlord as their main concern was to preserve their tenancy and protect their farm crops.

(v)     When it will be unwieldy and highly inconveniencing for the plaintiffs who are 114 in number and also embarrassing to the defendants to bring separate actions in respect of a right to relief arising out of the same transaction in line with Order 8 rules 1 and 9 of the High Court (Civil Procedure) Rules of Oyo State.

(vi)    When common question of law and fact would arise as provided for under Order 8 Rule 1 High Court (Civil Procedure) Rules of Oyo State.”

I think the points raised under this ground of appeal can best be dealt with by reference to the authorities on the interpretation of the words “the same interest” as employed in Order 7 rule 9 of the High Court (Civil Procedure) Rules of Western Nigeria.

In Charter v. Rigby & Co. (1896) Q.B. 113 a number of miners got drowned through the flooding of a mine. The personal representatives of the dead miners joined together and brought one action against the proprietors of the mine, claiming that the mine had been flooded through negligence of the proprietAND OTHERS It was held that the plaintiffs could not bring one action.

In Markt & Co. Ltd.’s case (supra) the plaintiffs shipped goods in the defend-ant’s ship for a voyage from New York to Japan. The ship was sunk by a Russian Cruiser before it reached its destination. Both ship and cargo were lost. In the writ taken out by the plaintiffs, the plaintiffs were described as respectively suing on behalf of themselves and other owners of cargo lately laden on board the ship. Endorsed on the writ was a claim for damages for breach of contract and duty in and about the carriage of goods by sea. It was held that the plaintiffs and those whom they purported to represent were not “persons having the same interest in one cause or matter’ and that the shippers of goods in a general ship could not have “the same Interest in one cause or matter.”

Again in Oragbafde v. Onitiju, (1962) 1 All N.L.R. 32 the plaintiff brought an action for himself and on behalf of other farm-owners of Ifetedo-Ere Farmlands. In considering whether the plaintiff was right in bringing the representative action under Order 7 rule 9 of the High Court (Civil Procedure) Rules, Bairamian, F. J. (as he then was) made the following observation at p.37 thereof on behalf of the Federal Supreme Court:

“In point of fact there was no common interest between Sam Oragbaide (to wit the Plaintiff) and the people of Ifetedo. …… On the evidence adduced for the plaintiff it was plain that he and others claimed to have each an individual farm of his own within the area in dispute, which means that the Ifetedo community as a whole cannot claim the entire area as communal land.”

The facts in Oragbaide’s case are similar to the facts of the present case, be-cause as already mentioned, each of the plaintiffs in this case and the 114 land-holders represented in the action has his individual holding which Is separate and distinct from the holdings of the other plaintiffs and land- holders represented. Moreover, the holdings were in separate groups and noncontiguous and were not therefore communal. Bairamian, F. J. went on in Oragbaide’s case to observe further on page 37:

‘The dominant words in the rule (rule 9 of Order 7) on representative actions are –

where there are numerous persons having the same Interest in one cause or matter, and is a question of substance whether they do have the same interest in one cause or matter. If they do not, a plaintiff cannot sue on their behalf.” (See Markt & Co. v. Knight S.S. Co. Ltd. (1910) K.B. 1021, particularly the judgment of Fletcher – Moulton, L. J.):’

It is very clear, from the foregoing, the claims of the plaintiffs and the facts of this case, that it was improper for the plaintiffs to bring representative action for themselves and on behalf of the other 114 land-holders. The various torts of trespass, it at all committed on the Individual plots of the plaintiffs and the 114 land-owners, did not arise from one transaction but series of transactions. In other words there was no joint tort. The causes of action though similar are in fact distinct. In the same way no single award of damages or the grant of injunction can be made to the plaintiffs and the 114 land- holders as they have different, though similar, causes of action. Their interests are not therefore common. See Amachree v. Newington, 14 W.A.C.A. 97.

The point that now falls for consideration is: what consequential order Is to follow? The Court of Appeal, which came to the same conclusion that the representative action brought by the plaintiffs was wrong concluded its judgment thus:

‘The appeal is allowed. The plaintiffs/respondents’ claim is dismissed. The judgment of the High Court is hereby set aside and in its place a dismissal is hereby substituted with costs…………”

It is to be noted that this order was made not just on the issue of the capacity to bring the representative action but in conjunction with the additional issues which the Court of Appeal found that the trial Court wrongly decided. The effect of the dismissal viz-a-viz the issue of wrong representative action is to deny both the plain-tiffs and the 114 land-owners that were purportedly represented to lose any right to relitigate the Issues involved in the aborted action. This will certainly create hardship for the 114 land-holders. On the other hand the causes of action of the plaintiffs were not considered separately but In conjunction with those of the 114 land-holders. It is not therefore clear whether If the plaintiffs had brought the action on their behalf alone the Court of Appeal would still have held as it did:

……..that since there are separate and distinct acts of trespass, different causes of action arise (sic). The judgment for damages for trespass was therefore wrong for lumping together the torts committed by the defendants and so was the award of damages ….. a defendant cannot be held liable for the tort of an-other defendant for by a different defendant (sic) in respect of different plots, whichever way one looks at ft. The award of damages in the manner described is dearly wrong.”

I think in the circumstances of this case the proper order to be made is that of non-suit; as provided by Order 28 rule 3 of the High Court (Civil Procedure) Rules, Cap. 44 (Laws of Western Region of Nigeria, 1959) which reads:

“3.     The court may in any suit, without the consent of parties, non-suit the plain-tiff, where satisfactory evidence shall not be given entitling either the plain-tiff or the defendant to the judgment of the Court.”

Both learned counsel for the plaintiffs and respondents have in fact agreed that an order of non-suit should be made. The aim is to put all the parties in status quo ante.

Accordingly, the appeal is allowed. Both the decisions of the High Court and the Court of Appeal as well as the consequential orders made thereunder are set aside. In their place an order of non-suit is made with no order as to costs.

OBASEKI, J.S.C.: At the High Court of Oyo State holden at Oyo, the appellants claimed:

(1)     A declaration that the list defendant has no right to disturb the occupation of the tenants whose names and holdings are shown on the plan L&L/D1884A annexed herewith in respect of their holdings whilst their tenancy still subsists;

(2)     The sum of N5,000.00 being general damages for continuing trespass committed by the defendants on the plaintiff’s land situate at Onikanyinkanyin farm, Iseyin District sometime in September, 1973.

(3)     Injunction to restrain the 2nd to 10th defendants, their servants and agents from committing further acts of trespass on the said land or further entry thereon and to restrain the first defendant from further disturbing the occupation of the plaintiffs on the said land.”

Pleadings were filed and served and after hearing evidence Aboderin, J. gave Judgment in favour of the plaintiffs for the declaration prayed for, N200.00 dam-ages and an order of injunction.

Being dissatisfied, the defendants took the matter on appeal to the Court of Appeal and the Court of Appeal allowed the appeal and dismissed the claim in its entirety.

It is against the judgment of the Court of Appeal that the plaintiffs have appealed to this Court. Briefs were filed and served and after hearing oral submissions of counsel, judgment was reserved by us.

In the meantime I have had the pleasure of reading in draft the judgment just delivered by my learned brother, Uwais, J.S.C. I agree with him that the appeal be dismissed.

The issues for determination in this appeal formulated by the appellants are four in number. They read:

“1.     whether or not the plaintiffs/appellants are the lawful customary tenants of the 1st defendant to the exclusion of the 2nd to the 10th defendants;

  1. whether or not Exhibits 3 & 7 in these proceedings are admissible and the consequences of their wrongful admission in case they were wrongly admitted.
  2. whether or not the action was instituted in a wrong capacity by the plaintiffs who sued on behalf of themselves and the other Onikanyinkanyin tenants of the 1st defendant.
  3. whether the area in respect of which the 2nd to 10th defendants were alleged to have trespassed is not ascertainable from Exhibit 1 tendered In these proceedings and whether the plaintiffs as lawful customary tenants of the 1st defendant to the exclusion of the 2nd to the 10th defendants on the 1 at defendant’s land in Exhibit 1 should not succeed in a claim of trespass against 2nd to l0th defendants who had been adjudged to have no farm on the said Exhibit 1:’

The question for determination formulated by the respondents appear to bring out the issues in controversy more vividly and are as follows:

  1. whether the plaintiffs/appellants could sue in a representative capacity on behalf of 114 customary tenants to claim for trespass and injunction when their interests and causes of action were not the same against ten different defendants/respondents when there could be no question or claim for joint liability in trespass or joint liability to pay damages.
  2. whether the plaintiffs/appellants could succeed in their action for trespass and injunction without proving exclusive possession of or title to the 114 customary farmlands in dispute;
  3. whether the learned trial judge was right in admitting Exhibits 3 and 7 in evidence when the two judgments were part of the proceedings in criminal cases;
  4. whether the Honourable Justices of the Court of Appeal were not justified in Interfering with the findings of fact when it was established that the learned trial judge had not appraised and assessed the evidence adduced before him at the trial.”

The issues have been examined in detail by my learned brother, Uwais, J.S.C., in his judgment.

The importance of the 1st and 2nd Issues formulated by the respondents lies in the fact that their resolution against the appellants must of necessity determine the appeal against the appellants.

The Court of Appeal addressed its mind to these issues. Omololu-Thomas, J.C.A., in his judgment (concurred in by Dosunmu, and Sulu-Gambari, JJ.C.A.) on these issues said:

‘The plaintiffs/respondents were shown in Exhibit 1 in this case on appeal as tenant in respect of holding which are as stated already separate and distinct. If more was trespass, the trespass must be in respect of each defendant/appellant and against each plot of the plots in Exhibit 1, i.e. 114 in number which Is contrary to the specific findings of the trial Judge. Surely, in the circumstances, the cause of action in respect of each tenant, and by each tortfeasor must be separate which is not the case here.”

The facts pleaded in paragraphs 1,2,3 and 4 clearly show that there is not only a joinder of 114 parties represented by the 3 plaintiffs but also a joinder of causes of action. These paragraphs read:

(1)     The plaintiffs bring this action on behalf of themselves and as representatives of the tenants mentioned on the note on the plan annexed herewith and marked Exhibit A’

(2)     The land over which the first defendant claims overlordship is shown verged red on the plan attached herewith and marked Exhibit ‘A’;

(3)     The plaintiffs and persons in respect of whom this action is brought herein-after referred to as ’the tenants” are tenants of the 1st defendant within the land edged red in Exhibit A. The tenancy still subsists in respect of each of them;

(4)     The holdings of the tenants, are shown edged blue and yellow in Exhibit ‘A’ with the holdings of each tenant marked against his name. The cocoa plantations on the holdings marked yellow were financed by the Cocoa Development Unit of the Ministry of Agric., Oyo State;

(5)     The tenants have been on their holdings as tenants of the defendant for about twenty years.”

It is to be observed that the contractual and proprietary rights each tenant has is in respect of his own separate holding. These rights cannot be exercised over another holding not granted to him. When there is trespass to this holding, it is he and only he alone who can sue. Thus, for trespass to the 114 holdings granted to the 114 tenants, each tenant to the exclusion of the other has right to sue for trespass to his holding and the damage he can claim is damage committed In respect of entry to his own holding. Thus, Dosunmu, J.C.A., was right when In his judgment he said:

“If there is any trespass, it must relate to the holding of each tenant which vests a cause of action in him. Granted that it was on the same day that all the 2nd to 10th defendants swooped on them together, the damages suffered as a result of their cocoa being reaped must be different. In the circumstances, each aggrieved plaintiff has to bring his own action for trespass and the court may decide to consolidate the actions for the purpose of trial.”

See Amachree and Others. v. Newington (1951) 20 N.L.R. 13 )1052) 14 W.A.C.A. 97.

Oke v. Oluga 1 CA/1/120/78 (unreported) delivered on 7th February, 1983.”

Omololu Thomas, J.C.A. dealing with the representative capacity in which the plaintiffs sued, said:

“By Order 7 Rule 9 –

‘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 Judge to defend in such cause or matter on behalf of or for the benefit of all persons so interested.’

It is required by the provision. that the persons on whose behalf the action is brought must have the same Interest in the cause or matter.

It is clear from exhibit 1 that the tenants (referred to therein) each had a separate and clearly individual plot…………

I am in agreement with the submission of learned counsel for the defendants/appellants that the plaintiffs/respondents have no common interests in the land comprised in exhibit 1 to warrant the institution of the action in representative capacity.

The Court of Appeal was, In my view, right in allowing the appeal from the High Court and setting the decision of the High Court aside. But that cannot be said of the order dismissing the claim.

Both parties have before us asked for an order of non-suit. I will therefore allow the appeal and I hereby non-suit the plaintiff for the above reasons and those set out in the judgment of my learned brother, Uwais, J.S.C.

KAWU,J.S.C.: I have read in draft the judgment of my learned brother, Uwais, J.S.C., which has just been delivered. I entirely agree with him, and for the reasons set out in the judgment, I will allow the appeal with no order as to costs. I abode by the order of non-suit made in the lead judgment.

WALI, J.S.C.: I have read before now, the judgment of my learned brother Uwais, J.S.C., which has just been delivered. He has exhaustively dealt with all the Issues raised and canvassed to which I have nothing more useful to add. I entirely agree with his reasoning and conclusions; and for those same reasons which 1 hereby adopt as mine. I allow the appeal. I abide by the same order in the lead judgment. CRAIG, J.S.C.: I have had a preview in draft of the judgment just delivered by my learned brother, Uwais, J.S.C. I agree with his reasoning and conclusions and merely wish to add a few words of mine by way of emphasis.

The main claim of the plaintiffs are for trespass and injunction. Sometimes when this type of claim Is formulated, the question of title is raised and in order to succeed, a plaintiff is required to show either that he is the owner of the land or that he has had exclusive possession of it – See Kponuglo v. Kodaja 2 W.A.C.A. 24.

In this case, however, the plaintiffs have conceded the issue of tide to the 1st Defendant. They admit that they are his tenants and hence on the 3rd leg of their Writ they ask for a declaration that:

‘The 1st Defendant has no right to disturb the occupation of the tenants whose names and holdings are shown on the Plan No. L&LJD 1884A in respect of their holding whilst, their tenancy still subsists.”

When that plan was produced, it showed that there were altogether about 114 tenants on the disputed land.

The central question which arises in this appeal is whether the plaintiffs can rep-resent the interests of all these tenants each of whom claims to have been granted his farmland by the 1st defendant. The trial Court ruled that the plaintiffs could rep-resent these tenants, but the Court of Appeal reversed that order and held that the plaintiffs were not competent to represent the interests of all the 114 tenants. In consequence, the lower Court made an order dismissing the plaintiffs’ claims. The plaintiffs were dissatisfied with the judgment of the Court of Appeal and in a further appeal to this Court, they have asked us to determine whether or not they could sue in a representative capacity.

In the case of Ogamioba & AND OTHERS v. Chief Oghene & AND OTHERS (1961) 1 All N.L.R. 59 the Federal Supreme Court held that the fundamental principle which governs suits brought in a representative capacity Is that:

  1. ‘Those represented must have a common interest and a common grievance; and
  2. The relief sought must in its nature be beneficial to all those whom the plain-tiff is representing Ibid at p.60.’

In the instant case, each tenant has possession of his own distinct area of farm-land, and any act of trespass to such possession must remain a matter of personal injury to that tenant. In those circumstances, other tenants who have not suffered any Injury in respect of that farmland could not join together in an action of trespass committed on the land, nor could they share in any award of damages for trespass to the parcel of land.

There is therefore no common interest or grievance among the tenants which they can jointly present before the Court; and for the same reason, the relief sought by one plaintiff is not in any way beneficial to the other plaintiffs.

Admittedly all the tenants have a common landlord and possibly, similar con-tracts of tenancy, but there is no joint tenancy and they cannot sue in a representative capacity. The provisions of Order 7 rule 9 of the High Court (Civil Procedure) Rules of Oyo State High Court would therefore not apply.

When the issue of representation is considered from the stand- point of the Defendants, it is likely to raise greater problems still.

It has been stated that each plaintiff is making a claim for trespass In respect of his own individual farmland. He is therefore expected to show what act of such defendants has trespassed on his land, -that is he must show what act of such defendant amounts to trespass and how much he is claiming for that tort.

From this it will be seen that each plaintiff has a distinct cause of action against one or more of the defendants. The cause of action is not common to all the ten-ants (although it may be similar in nature to those of the others), and there is no question of making a joint claim for trespass committed on the farm of each of the 114 tenants. Amachree v. Newington 14 W.A.C.A. 97.

For these reasons as well as for those clearly given in the lead judgment. 1 agree that the plaintiffs action was wrongly constituted. I also agree that in order not to jeopardise the interest of the tenants who, as it turns out, have been wrongly rep-resented, the proper order to make is one of non-suit.

I would also allow the appeal and make the same orders contained in the lead judgment.

Appeal allowed.

 

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