BUSARI AYINDE & 2 OTHERS (APPELLANT)
v.
ADEDOKUN AKANJI (BALE SAGBO) & 9 OTHERS (RESPONDENT)
(1988) All N.L.R. 59
Division: Supreme Court Of Nigeria
Date of Judgment: 22th January, 1988
Case Number: (SC 196/1985)
Before: Obaseki, Uwais, Kawu, Wali, Craig; JJ.S.C.
The Plaintiffs' claim as stated in their amended statement of claim are for 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, 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 and 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 1 & L/D 1884A in respect of their holding whilst the tenancy subsists.
Pleadings were filed and exchanged by the parties. At the trial the plaintiffs and the defendants called 6 and 7 witnesses respectively to testify on their behalf. In a nutshell, the plaintiffs' case is that they had been customary tenants of the 1st defendant. In that capacity the plaintiffs have individual holdings for about 20 years. During that period they had paid the customary fee's for entering the 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. The first defendants therefore decided to punish the plaintiffs by making them pay as fine the sum of N400.00 The plaintiffs made the payment but to their surprise the 1st defendant brought several persons including the 2nd to 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 that the 1st defendant granted land to Egba Tenants about 34 years ago. Among 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 the holdings. Apart from the Egba tenants of the 1st defendant, there were customary tenants who hailed from towns like Ibadan, Oyo, Iseyin, Iwo, and Iware. The defendants claimed that they had been farming together with the plaintiffs since the plaintiffs came onto the 1st defendant's land about 20 years ago. Each individual having his holding. In 1958 the title of the 1st defendant was challenged in Court by one Tanimowo who was the agent of the 1st defendant on the land in dispute. The 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 this case supported the adversaries of the 1st defendant. All these were won by the 1st defendant. As punishment for their misbehaviour or disloyalty the 1st defendant repossessed the holding of all those that did not give him support. The repossessed holding were not given 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 lay false claims on the holdings of the defendants and destroyed as well as reaped crops planted by the defendants.
In giving judgement for the plaintiffs the trial judge found as a fact that the 2nd to 10th defendants have never been the lawful customary tenants of the 1st defendant in respect of the 114 farmlands indicated in respect of each Tenant in Exhibit 1.
Being aggrieved by the decision of the trial Court, the defendants appealed from it to the Court of Appeal. The Court of Appeal allowed the appeal and dismissed the Plaintiffs' claim. It is against this decision that the Appellants have now appealed to the Supreme Court.
HELD:-
(1) It is very clear from the authorities, 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, if at all committed on the individual plot 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 an injunction can be made to the plaintiffs and the 114 landholders as they have different, though similar, causes of action. Their interests are not therefore common.
(2) 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. The aim is to put all the parties in status quo ante Appeal Allowed.
A. Ade Obe (with him a. K. Fowe) for the Appellants.
Chief J. O. Fawole for the Respondents.
Cases referred to:-
(1) Amachree v Newington (1952) 14 WACA 97
(2) Carter v Rigby & co (1896) 2 Q. B. 113
(3) Marlot & Co. Ltd. v Knight Steamship Co. Ltd (1910) 2 K.B. 1021
(4) Oragbaide v Onotiju (1962) 1 All N. L. R 32
Statute referred to:-
(1) High Court (Civil Procedure) rules Cap 44 (Laws of Western Region of Nigeria 1959).
Uwais, JSC. 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 holdings are shown on the plan L & L/D 1884A respect of their holdings whilst the 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 nutshell, the plaintiffs' case is that they had been customary tenants of the 1st defendant. 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 plaintiffs made the payment but to their surprise the 1st defendant brought several persons including the 2nd to 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 tenants 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 plaintiffs 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 respondent. As punishment for their misbehaviour or disloyalty, the 1st defendant repossessed the holdings of all those that did give him support. The repossessed holdings we 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 lay 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 plaintiff 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 each tenant in exhibit 1.
(3) I find as a fact that the defendants specifically on the farm land 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 appealed 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 this 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 defendant.
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 this 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 should not succeed in a claim for trespass against 2nd-10th defendant 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 the following manner-
"2 (1) ...whether the plaintiffs' appellants could sue in a representative capacity on behalf of 114 customary tenants claim for trespass and injunction when their interests and causes action were not the same against ten different Defendants/Respondents when there could be no question or claim for joint sort of trespass or liability to pay the same amount of damages.
2 (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 farmland in dispute.
2 (3) ...whether the learned trial Judge was right in admitting Exhibit 3 and 7 in evidence when the two judgments were part of the proceedings in criminal cases.
2 (4) ...whether the Honourable Justices of the Court of Appeal were not justified in interfering with the findings of fact when it as 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 NLR 32 and Markt & Co. Ltd. v. Knight Steamship Co. Ltd et al, (1910) 2 KB 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 herewith and marked Exhibit 'A'"
"3 The plaintiffs and persons in respect of whom this action is brought hereinafter 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 19 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 holding 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 defendant and, therefore, could not have had the same interest with the plaintiffs. In considering the issue joined by the parties in this respect, learned trial Judge made the following observations-
"The plaintiffs aver in their statement of claim that they bring this action on behalf 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) could not bring the action in a representative capacity since the plaintiff (sic) gave land to his tenants as individuals, 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 allows one or more persons to bring action on behalf of and for the benefit of them-selves 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 Onikanyinkanyin. The second is that most of them are from a particular area that is Ibadan and all of them are represented by the 1st plaintiff in their dealings with the 1st defendant. The 1st defendant, himself, admitted that Busari Ayinde, the 1st plaintiff is the leader of the Onikanyinkanyin 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 disposers (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 plaintiffs and those they represent have a common interest in the subject matter sufficient to maintain this action under Order 7, rule 9." (underlining 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 a 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 ownership 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 submission the Court of Appeal held as follows-
"It is clear from exhibit 1 that tenants (referred to therein) each had a separate and clearly 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) and 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 his 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 land comprised in Exhibit 1 to warrant 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 tenants 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 Carter v. Rigby & Co. (1896)2 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 proprietors. It was held that the plaintiffs could not bring one action.
In Markt & Co. Ltd's case (supra) the plaintiffs shipped goods in the defendant'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 Oragbaide v. Onitiju, (1962) 1 All NLR 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 and 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." (underlining mine)
The facts in Oragbaide's case are similar to the facts of the present case, because 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 non-contiguous and were not therefore communal.
Bairamian F.J. went on in Qragbaide's case to observe further on p.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)2 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, if 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 WACA 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, conclusion that the representative action brought by the plaintiffs was wrong, concluded its judgement 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 vis-a-vis the issue of wrong representative action is to deny both the plaintiffs and the 114 land owners that were purportedly represented to lose any right to re-litigate 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 another defendant for by a different defendants (sic) in respect of different plots, whichever way one looks at it. The award of damages in the manner described is clearly 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 (Law of Western Region of Nigeria, 1959) which