In The Court of Appeal

(Ibadan Judicial Division)

On Friday, the 30th day of November, 2012

Suit No: CA/I/177/07

Before Their Lordships

MONICA B. DONGBAN-MENSEM ....... Justice, Court of Appeal

CHIDI NWAOMA UWA ....... Justice, Court of Appeal

JOSEPH SHAGBAOR IKYEGH ....... Justice, Court of Appeal

Between

ABRAHAM OLUSEGUN BANKOLE & ORS          Appellants

And

EMIR INDUSTRIES LIMITED     Respondents

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Justice of Ogun State holden at Ota (the court below) which awarded N1 Million general damages against the appellants in favour of the respondent for trespass into the respondent's parcel of land located along Idiroko/Iju road in Ado-Odo/Ota Local Government area of Ogun State. A permanent injunction was also granted restraining the appellants from committing further acts of trespass on the disputed portion of land; while the appellants' counter-claim for the setting aside of respondent's documents of title over the disputed land was dismissed by the court below.

The respondent's case as plaintiff in the court below was that Ogbe Alagbe family sold the land in dispute to Overseas United Distillers Limited in 1976, evidenced by a receipt of purchase, Exhibit A. That the appellants are offspring of Ogbe Alagbe family. Later in 1983, Ogbe Alagbe family issued a sale agreement, Exhibit F, to Overseas United Distillers Limited to facilitate the latter to obtain a certificate of occupancy (C of O), Exhibit D, over the land in dispute in 1984.

Then on 4.1.86, Overseas United Distillers Limited sold the disputed land to one Alhaji Alirni Abiodun Odunlami by Deed of Conveyance, Exhibit B. Alhaji Alimi Abiodun Odunlami in turn assigned the disputed land measuring approximately 8.113 hectares to the respondent by Deed of Conveyance, Exhibit C, dated 26.6.86.

The respondent took possession of the disputed land in 1986. It commenced construction of a factory building thereon. Some persons were also farming or planting on the land at the instance of the respondent until 2002 when the appellants started disputing ownership of the land with the respondent.

The dispute escalated to the destruction of the respondent's factory buildings on the land by the appellants and the alienation of some portions of the land to third parties by the appellants who alleged the respondent did not buy the land from their family and had no right to occupy the land in dispute.

The appellants' case on the other hand was that their family did not sell the disputed land to Overseas United Distillers Limited, nor were they aware of the claim of transfer of the land to the respondent; rather their family had sold part of the family land near the disputed land to a company called Overseas United Distillers Nigeria Ltd. which became united Distillers and Vintners Nig. Ltd and eventually changed its name to Stirling Beverages Ltd. which presently occupies the land sold to it by the appellants' family near the disputed piece of land. The appellants therefore counterclaimed that all the documents of title obtained by the respondent - purchase receipt, sale agreement, two Deeds of conveyance and certificate of occupancy over the disputed piece of land are invalid and should be set aside by the court.

The court below accepted the respondent's case and dismissed the appellants' counter-claim. A notice of appeal with eleven grounds of appeals dated 11.4.07 was filed on 16.4.07 attacking the judgment of the court below. The appellants' brief of argument filed on 28.2.08 distilled ten issues for determination on the appeal as follows:-

"(i) whether or not the trial court, a High court of Justice, has jurisdiction to determine the issue of the validity of the purchase of the land in dispute by a non-existent plaintiff's predecessor in title named Overseas United Distillers Limited.

(ii) whether the alleged purchase of the land in dispute in 1976 vide Exhibit 'A' by the non-existent Plaintiff's predecessor in title was/is valid'

(iii) whether the trial Judge was right to hold that the plaintiffs predecessor in title, Overseas United Distillers Ltd is the same company that was registered in 1982 as Overseas United Distillers Nigeria Ltd and issued with a certificate of Incorporation admitted as Exhibit S inspite of the state of pleadings and evidence before the trial court.

(iv) Whether or not the Plaintiff established its root of title to be entitled to the reliefs of damages for trespass and injunction awarded.

(v) Whether the trial Judge was right to hold that the sale of the land in dispute was completed under customary law as evidenced by Exhibit A notwithstanding the state of Exhibit 'F'.

(vi) Whether Exhibit 'D' (the Certificate of Occupancy) obtained only vide an unsigned or unexecuted document of title admitted as Exhibit 'F' was/is valid.

(vii) Whether the trial Judge was right to hold that the Defendants must plead forgery and fraud before they can validly challenge the authenticity of the signatures of their family members on Exhibit  'A' and if not whether the trial Judge was right to have discountenaced the evidence called by the Defendants in this regard.

(viii) whether the award of One Million Naira general damages to the Plaintiff by the trial Judge is not inordinately or ridiculously high and erroneous in the circumstances of the case.

(ix) Whether the judgment of the trial Court is not against the weight of evidence,

(x) Whether the trial Judge was right to have dismissed the Defendants/Appellants' Counter Claim."

Issue (i) (supra) was tied to ground 1 of the notice of appeal. Arguments on the issue relied on the cases of A. G. Kano State v. A. G. Of the Federation (2007) 6 M.J.S.C. 161 at 177, Osun State Government v. Danlami Ltd (2007) 6 M.J.S.C. 1 at 14-15, Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377, Dantsoho v. Mohammed (2003) 6 M.J.S.C. 97 at 114, Tukur v. Government of Kwara v. Government of Kwara State (2007) 4 M.J.S.C. 96 at 112 - 113 read with Sections 251(1) (C) and 272(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended (1999 Constitution) to canvass that by the writ of summons and the statement of claim the court below was invited to decide inter alia an issue of trespass to the disputed piece of land and; whether the remedy of injunction was available to the respondent against the appellants, consequently the question whether Overseas United Distillers Ltd was an unincorporated body incapable of owning land to alienate to the respondent did not relate to the management and operation of a company to oust the jurisdiction of the court below. It was canvassed on issues (ii), (iii), (iv) and (vi) married to grounds 2, 3, 5 and 8 of the notice of appeal that by paragraphs 4, 5, 6 and 7 of the amended statement of claim read with paragraph 4(g), (h) and (i) of the amended reply to paragraphs 8, 9 and 10 of the amended statement of defence and paragraphs 21, 22 and 26 of the 4th amended statement of defence the appellants denied the corporate statues of Overseas United Distillers Ltd, change to and its United Distillers and Vintners Nigeria Ltd and subsequently to Stirling Beverages Limited thus placing the burden of proof of the corporate existence of Overseas United Distillers Limited and its metamorphosis to United Distillers and Vitners Nigeria Ltd and thereafter to Stirling Beverages Ltd on the respondent vide Bank of Baroda v. Iyalabani (2002) 11 M.J.S.C. 102 at 113 -114-127 and N.N.P.C. v. Latin Investment Ltd (2006) 2 M.J.S.C. 1 at 26; that the respondent did not discharge the said burden of proof; on the contrary appellants tendered Exhibits L and M and the evidence of DW1 and DW3 to establish that Overseas United Distillers Limited was unincorporated and did not transform to Stirling Beverages Ltd, consequently the unincorporated Overseas United Distillers Limited had no capacity to contract in Exhibit A, nor own land to assign to the respondent's predecessor-in-title vide sections 36 (6) and 37 of the Companies and Allied Matters Act (CAMA) Laws of the Federation, 1990, read with the case of Etajata v. Ologbo (2007) 11 M.J.S.C, 176 at 200; therefore the court below should not have held against the tide of evidence that the company named in Exhibit S was the same as Overseas United Distillers Limited vide Oladeji Ltd v. NB Plc (2007) 11 M.J.S.C. 159 at 167; and Aremu v. Adetoro (2007) 11 M.J.S.C. 157 at 167.

It was argued that the respondent having failed to establish the root of title to the disputed land, its acts of possession becomes acts of trespass, all the more so Exhibit F, an unsigned and unexecuted purchase receipt affecting land, was jettisoned by the court below vide Trustee of the Diocese of Aba v. Nkume (2002) 2 M.J.S.C. 70 at 78, 80, Oluma v. Onyuna (1996) 4 NWLR (pt.443) 449 at 457-458; and that Exhibits D, (the C of O), was predicated on invalid title or document, Exhibit F, and nothing can be placed on it to confer title to the disputed land on the respondent vide Macfoy v. U.A.C. LTD (1961) 3 All E.R. 1169, Adesanoye v. Adewole (2006) 10 M.J.S.C. 1 at 23.

In arguing issue (v) tied to ground 4 of the notice of appeal the appellants cited the cases of Folarin v. Durojaiye (1988) 1 NWLR (pt.70) 351, Orunengimo v. Egbe (2007) 11 M.J.S.C. 138 at 154 to contend that the pleading and evidence of the respondent did not establish sale of land under customary law in that the names of the witnesses that witnessed the transaction were not disclosed and that the use of receipt or purchase agreement is unknown to customary law vide Etajata v. Ologbo (supra) at 200.

It was contended on issue (vii) tied to grounds 6 and 7 of the notice of appeal that the parties joined issues on whether Exhibit A emanated from the appellants' family and; by Order 25 Rule 17 of the Rules of the court below read with section 12 of the Evidence Act the material facts pleaded by the appellants pursuant to Order 25 Rule 4 (1) of the Rules of the court below entitled them to give evidence in rebuttal through DW2 and DW5 and Exhibits 0-04, N,T that their family did not issue Exhibits A and F, as it is glaring on the face of Exhibits A and F that they were not signed by their head of family and secretary vide Okagbue v. Romaine (1982) 5 S.C. 33 at 155, Dokubo v. Omoni (1999) 6 SCNJ 165 at 185, Igu v. Ikwibe (1991) 3 NWLR (Pt.180) 385 at 410, Akpadiaha v. Owo (2001) FWLR (pt.57) 940 at 956, Arabambi v. A.B.I. Ltd. (2006) 3 M.J.S.C. 61 at 92; and that Exhibits 0-04, N and T should not have been discountenanced by the court below on the ground of stamp duty.

In arguing issue (viii) tied to ground 9 of the notice of appeal the appellants cited the cases of Osuji v. Isiocha (1989) 3 NWLR (Pt.112) 623 and Rockonor Ltd. v. Nitel and Anor (2007) 7 NSCQR 103 to contend that the quantum of damages to award as general damages should be nominal, not based on the value of the land, therefore the award of N1 million general damages to the respondent was "ridiculously high" and amounted to erroneous estimate which entitles the Court to intervene as the court below took into account the irrelevant factor of the destruction of the factory on the land when the respondent did not claim special damages vide A.C.B. v. Apugo (2001) 11 M.J.S.C. 1- Stirling Ltd v. Yahaya (2005) 11 M.J.S.C. 138 at 168 - 169.

   Issues (ix) and (x) related to grounds 10 and 11 of the notice of appeal agitated that civil cases are decided on the preponderance of evidence under sections 136- 137 of the Evidence Act read with the cases of Mogaji v. Odofin (1979) 4 S.C. 91 at 93-95, Anyanwu v. Mbara (1992) 2 NWLR (pt. 242) 389, consequently the evidence that the respondent did not acquire valid title to the disputed land in Exhibit A, the source of its title to the land issued in the name of a non-existent predecessor-in-title and Exhibit F (the purchase receipt), an unexecuted document-did not outweigh the evidence of the appellants that their family never sold the disputed land to the respondent's predecessor-in-title therefore the appeal should be allowed.

The respondent's brief filed on 23.6.10, pursuant to an order for extension of time granted on 23.6.10, identified eight issues for determination as follows: -

"1. Whether the learned trial judge was right in declining to determine the issue of transaction entered into by Overseas united Distillers Limited at a time it was yet to be incorporated which bothered on the interpretation of the provisions of Company and Allied Matters, Act, 2004 with respect to principles of pre incorporation contract.

2. Whether the learned trial judge was right in holding that the Ogbe-Alagbe family sold the land in dispute to Overseas United Distillers Limited and granting the reliefs sought by the Respondent.

3. Whether the conclusion of the learned trial judge that the Appellants did not plead forgery and fraud as required by law could be faulted.

4. Whether Exhibit 'F', the purchase agreement on which the Respondent's certificate of occupancy was predicated, could be impugned for want of due execution in the face of the presumptions of law in its favour.

5. Whether the learned trial judge was right in his finding that it was Overseas United Distillers Limited that was later registered and known as Overseas United Distillers Nigeria Limited.

6. Whether it will be equitable to allow the Appellants to repudiate the sale they made to Overseas United Distillers Limited 27 years ago on the tenuous ground that the said company was yet to be registered at the material time.

7. Whether the counter-claim of the Appellants could have succeeded in any event having regard to admission of the Appellants that they had sold the land in dispute to third parties as well as the finding of the Court that the Respondent and its predecessors in title had been on the land more than 27 years prior to the institution of the counter-claim.

8. Whether the learned trial judge was right when he dismissed the counter-claim of the Appellants.

It was submitted on the first issue that the question whether the sale of the disputed land was made to Overseas United Distillers Ltd before its registration nullified the sale involved the interpretation and application of the provisions of CAMA with respect to pre-incorporation contract which the court below rightly declined jurisdiction vide Yalaju-Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Pt.145) 422 at 441 - 442, Kadzi International Ltd. v. Kano Tannery Co., Ltd. (2003) FWLR (pt.184) 255 at 288-291, Abdulrahman v. Oyamendan (2006) All FWLR (pt.292) 83; and that the refusal of the court below to determine the question of pre-incorporation contract did not affect the merit of the case as the main issue that Ogbe Alagbe family sold the land in dispute to Overseas United Distillers Ltd under native law and custom evidenced by Exhibit A, the purchase receipt, was resolved by the court below vide Wilson v. Oshin (2000) FWLR (Pt.14) 2311 at 2329.

The second and third issues were argued together to the effect that it was common ground between the parties that the land in dispute originally belonged to Ogbe Alagbe family - the appellants' family so the onus was on the respondent to prove how it got the piece of land vide Mulima v. Goniram (2004) All FWLR (Pt.228) 751 at 788; that the respondent discharged the said onus through two witnesses and Exhibits A, B, C, D and F - the documents showing how it got the disputed piece of land - which the court below accepted and rejected the evidence for the appellants in its judgment at pages 160- 179 of the record of appeal (the record) to the effect that Exhibits A and F were issued by some members of Ogbe Alagbe and that the allegation of forgery launched against Exhibit A by the appellants was not pleaded with sufficient particulars and evidence given thereon went to no issue, more so the allegation was not proved beyond reasonable doubt vide Adeyo v. Global Investment Bank (2003) FWLR (pt.160) 1664, B. J. Export and Chemical v. KPRC (2003) FWLR (pt.165) 445, Okonkwo v. Co-Operative and Commerce Bank (2003) FWLR (Pt.154) 457, Jegede v. Citicon (Nig) Ltd. (2001) 4 NWLR (Pt.702) 112, Emegokwe v. Okadigbo (1973) 4 SC 113, Arowolo v. Ifabiyi (2002) FWLR (Pt.95) 296.

    It was also submitted that the court below considered at pages 172- 176 of the record the pieces of evidence led to show that Exhibit A was forged to arrive at its decision based on the admission of DW2 and DW5 that the names on Exhibit A belonged to members of Ogbe Alagbe family and the lie told by the DW5 that their family never issued receipt on plain paper when Exhibit K tendered by the appellants was on plain paper showed Exhibit A was not a forgery and conferred title to the land on the respondent under native law and custom vide Ayanwale v. Atanda (1988) 1 NWLR (Pt.68) 22 at 35 to the effect that a witness shown to have lied is unworthy of belief and Ekpendu v. Erika (1959) 4 F.S.C. 79, Adedubu v. Makanjuola (1944) 10 W.A.C.A. 33 on proof that the head of Ogbe Alagbe family, one Joshua Ashade Ogabi, not only gave his consent to the sale transaction but actually signed Exhibit A as head of the family, consequently Exhibit A was properly used as hangar by the court below to resolve the conflicting evidence whether Ogbe Alagbe family sold the land in dispute to Overseas United Distillers Ltd vide Fashanu v. Adekoya (1974) 1 All N.L.R. (Pt.1) 35 at 41 - 42, Kimdey v. Military Governor of Gongola State (1988) 2 NWLR (Pt.77) 445 at 473; and that the award of N1 Million general damages was not based on the value of the disputed land, nor does nominal damages imply meagre amount of money, therefore the award should not be disturbed having regard to the fact that the respondent's 17 years quiet enjoyment of the land was interrupted by the appellants' acts of forcible entry thereon coupled with their sale of portions of the land in dispute to sundry persons.

The fourth issue tackled Exhibit F, the purchase agreement. The cases of Jules v. Ajani (1980) 5-7 S.C, 96, Olujinle v. Adeagbo (1988) 2 NWLR (pt.75) 238 at 254 read with section 18 1-5, section 31 1-2 of the Land Instruments Registration Law (cap.53) Laws of Ogun State were cited in support of the contention that though there was no thumb impression or signature on Exhibit F, due execution of the document was attained by evidence that it was a certified true copy obtained from the Deeds Registry and was properly used to procure the C of O in Exhibit D over the land in dispute.

Arguments on the fifth and sixth issues for determination are to the effect that the court below found as a fact that Overseas United Distillers Ltd bought the disputed land from Ogbe Alagbe family which issued Exhibits A and F to back up the land sale transaction; that Exhibit S tendered through DW3 showed Overseas United Distillers Nigeria Limited was later registered or incorporated; also, the DW1 admitted at page 109 of the record that Stirling Beverages Ltd was formerly United Distillers and Vintners Nig. Ltd; that the appellants' family recognised the existence of Overseas United Distillers Ltd and entered into the land sale transaction with it in Exhibits A and F indicating Overseas United Distillers Ltd, even if unincorporated, can hold assets and sue and be sued vide Iyke Medical Merchandise v. Pfizer Inc. (2001) FWLR (Pt.53) 62 at 76 - 79, Ediconisa Int. Inc. v. C.I.E. Ltd. (2007) All FWLR (Pt.357) 1000, distinguishing Bank of Baroda v. Iyalabani (supra) which dealt with the legal capacity of an unregistered company to institute an action in court vide Adisa v. Oyinwola (2000) FWLR (Pt.8) 1349 at 1372, INEC v. Ray (2005) All FWLR (Pt.265) 1047 at 1076 -1077 on the injunction that cases distinguishable on the facts and law should not be followed.

It was also argued that it is an issue of technicality to urge that the sale be voided because it was made to an unincorporated body because the court is interested in doing justice in order to give "succour to a wronged party" vide Okonjo v. Mudiaga Odje (1985) 10 S.C. 267, Surakatu v. NHDSL (1981) 4 S.C. 20, Bello v. A.G. Oyo State (1986) 12 S.C.1; that having recognised Overseas United Distillers Ltd as an entity to which the appellants' family sold the land in dispute and benefited from the sale transaction by receiving the purchase price, the appellants should not be allowed to approbate and reprobate at the same time to the detriment of the respondent vide Iloabachie v. Philips (2002) FWLR (Pt.115) 726 at 447, Governor of Ekiti State v. Ojo (2006) All FWLR (Pt.331) 319; nor would it be fair, moral and equitable for the appellants to turn round to maintain that Overseas United Distillers Ltd was a "ghost and as such would resile out of the sale" to the detriment of the respondent who had been on the disputed land for 27 years before the dispute arose vide Oil Field Supply Centre Ltd v. Johnson (1987) 2 NWLR (Pt.58) 625, Adedeji v. N.B.N. Ltd. (1989) 1 NWLR (Pt.96) 212 at 226.

The respondent canvassed the seventh and eighth issues together to the effect that declaratory and injunctive reliefs are equitable and discretionary placing a duty on the claimant to have clean hands and to, also, do equity which the appellants disregarded by turning round to sue for ownership of the same piece of land they had sold to the respondent's predecessor-in-title, and which the appellants later resold to DW2, DW4, and other sundry persons evidenced by Exhibits 0-04 and N contrary to the principle that a vendor of land cannot turn round to seek a declaration of title to the very piece of land he had sold vide Ipadeola v. Oshowole (1987) 5 S.C, 376 at 386 on judicious and judicial exercise of discretion by the court in granting declaratory relief, Ige v. Farinde (1994) 7-8 SCNJ (pt.2) 288, Jinadu v. Esuronbi - Aro (2009) All FWLR (Pt.483) 1231 at 1248, on the impropriety of a vendor suing for title over the same piece of land sold out by him to another person.

    The respondent submitted further that the appellants did not define the area of land outside the portions they sold to third parties to tie the declaratory and injunctive reliefs to it vide Kyari v. Alkali (2001) FWLR (Pt.60) 1481 at 1499 to the effect that in a claim or counter-claim for declaration of title to land the claimant is bound to identify the disputed area of land with certainty and precision; that the finding of the court below that the respondent had been in undisturbed possession of the land for 17 years before the dispute arose entitled the respondent to the pleaded defence of laches, acquiescence and time bar under section 6(2) of the Limitation Law of Ogun State read with the case of Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22 to the effect that lack of knowledge of occupation of the land by a party does not affect the running of time for the purpose of the Limitation Law (supra); that Exhibit D, the C of O, is prima facie evidence of title or exclusive possession of land by the holder vide Ezennah v. Atta (2004) All FWLR (Pt.202) 1858 at 1884; that the Ogun State Government, a necessary party, that granted Exhibit D, (the C of O), was not joined to the counter claim which should be fatal to the counter-claim vide Adisa v. Oyinwola (2000) FWLR (Pt.8) 1349 at 1383 - 1384, Ayorinde v. Oni (2000) 2 S.C. 1 at 12 and 20 - 21; and that the appellants perpetrated fraud by selling the land to the respondent's predecessor-in-title and turning round to deny the sale and lay claim of ownership to the same piece of land, therefore the appellants should not be allowed to benefit from the fraud vide Akibu v. Azeez (2003) FWLR (pt.149)1490 at 1151, consequently the appeal should be dismissed.

The reply brief filed on 16.7.10 referred to Exhibit F to contend that it was not registered nor signed and is on that basis worthless vide Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637 at 655 and 659, Tewogbade v. Obadina (1994) 4 NWLR (Pt.338) 326 at 351, Adelaja v. Fanoiki (1990) 3 SCNJ 142, Omiyale v. Macaulay (2009) MJSC 29, Ejuetami v. Olaiya (2002) 2 MJSC 82 at 95 - 96, Oyeneyin v. Akinkugbe (2010) 1 MJSC (Pt.3) 1 at 18 - 19, Seidu v. A.G. Lagos State (1986) 2 NWLR (Pt.21) 165, Fasheun v. A.G. Federation (2001) 6 NWLR (pt.975) 141 at 159, A. G. Abia State v. Agharanya (1999) 6 NWLR (Pt.607) 362 at 371, Ali v. Ambrosini Ltd. 7 WACA 148, Ojo v. Adejobi (1978) 3 SC 65, Kwara State Investment Company Ltd. v. Garuba and Anor. (2000) 10 NWLR (Pt.674) 25 at 39 and section 100 of the Evidence Act; that Exhibit F, though pleaded by respondent, was not tendered in evidence so the respondent is deemed to have abandoned it and is caught by doctrine of withholding evidence under section 149(d) of the Evidence Act and Amaechi v. INEC (2008) 1 MJSC 1.

The reply brief further argued that an unincorporated body or unregistered body is not a juristic person and cannot possess land or sue in its unincorporated name, but in respect of pre-incorporation contracts such unregistered body, upon registration, can ratify under section 72 of CAMA read with the case of S.G.B. (Nig) Ltd, v. S.G.F. (1995) 3 NWLR (Pt.384) 497, Iyke v. Pfizer (2001) 4 MJSC 136, Atugba and Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt.927) 429 at 445, Onagoruwa v. State (1993) 7 NWLR (Pt.303) 49 at 88, NNPC v. Lutin Inv. Ltd. (2006) 2 MJSC 1 at 25, Jacobson Eng. Ltd. v. U.B.A. Ltd. (1993) 3 NWLR (pt.283) 586 at 601, Olufosoye v. Fakorede (1993) 1 NWLR (Pt.272) 747 at 764 Olalomi v. Nig. Ind. Dev. Bank. (2009) 7 MJSC (Pt.111) 136 at 154, 161 and 164.

    The rely brief also contended that the issue of equity or morality does not arise where a party is contesting the legality or invalidity of an action vide Savanah Bank of Nigeria Ltd. v. Ajilo (1989) NSCC (Pt.1) 135 at 147, Union Bank of Nigeria Plc v. Dare and Sons Ltd. (2007) 4 - 5 SC 42.

The reply brief also argued that the counterclaim arose when the respondent entered the land in dispute through PW1 in 2002, not in 1976 or 1986, therefore the Limitation Law would start running at the time the PW1 entered the land vide Owie v. Ighiwi (2005) 3 MJSC 82 at 109-110; that the court below did not pronounce on the plea of time bar as to be an issue on the appeal; that parties are bound by their pleadings vide Adeniran v. Alao (2002) 1 MJSC 1, Oladeji Ltd v. NB. Plc (2007) 3 MJSC 29, Igbimokpogie v. Ogedegbe (2002) 1 MJSC 36.

The reply brief added that the pleading of the appellants that members of their family are still living on part of the land in dispute, while part of the same land was sold to third parties by the appellants as owners of the land which ownership the respondent conceded bound the parties; that for an admission to be binding it must be clear, unequivocal and total vide Orji v. DTM Nig. Ltd. (2009) 12 MJSC (Pt.11) 132, Odutola v. Papersack Ltd. (2007) 1 MJSC 129 at 147.

The reply brief also argued that the 1st appellant as head of the family can sue to defend family property vide Ezeduke v. Odogwu (2003) 1 MJSC 165; that a party is entitled to seek to set aside any C of O obtained irregularly over a piece of land in which he has interest vide Awoniyi v. Registered Trustees of AMORC (2000) FWLR (Pt.25) 1592; that a root of title must be valid before acts of possession can be built on it vide Okolie v. Onyesuluwa (2001) FWLR (Pt.41) 1826, Olubodun v. Lawal (2008) 9 MJSC 1, Ukaegbu v. Nwokolo (2009) 1-2 MJSC 93; that possession of the land in dispute by the respondent was not adverse, so the Limitation Law would not apply to it vide Akibu v. Azeez (2003) FWLR (Pt.149) 1490 at 1505-07, Majekodunmi v. Abina (2002) 3 MJSC 41 at 55; respondent did not prove the title of its predecessor-in-title so its claim must fail vide Aba v. Nkume (2002) 2 MJSC 70, Orunengimo v. Egebe (2007) 11 MJSC 138, Adole v. Gwar (2008) 5 MJSC 38, Madu v. Madu (2008) 5 MJSC 213; that the presumption raised in favour of a C of O is rebuttable vide Omiyale v. Macauley (2009) 3 MJSC 29, Kyari v. Alkali (2001) FWLR (Pt.60) 1481 at 1506, that non joinder of Ogun State Government will not defeat the action vide Green v. Green (1987) 3 NWLR (Pt.61) 480 at 497; and that the appeal be allowed.

The issues formulated by the appellants, though prolix, are linked to the grounds of appeal in relation to the ratio of the judgment of the court below than the respondent's issues for determination. I follow the appellant's issues for the discourse.

The court below held it had no jurisdiction to decide the validity of the purchase of the land in dispute by the unincorporated Overseas United Distillers Limited because it involved the interpretation of the provisions of CAMA with respect to pre-incorporation contract. The subject matter of the claim and counter-claim related to land: Whilst the respondent claimed at page 21 of the record for trespass and injunction respecting the piece of land, the appellants counter-claimed at page 86 of the record for nullification of the documents of title obtained by the respondent over the disputed piece of land. It is trite that the claim and counter-claim before the court below solely determined its jurisdiction - see Yalaju - Amaye v. A.R.E.C. Ltd. (1990) 4 NWLR (Pt.145) 422 AT 441, where the Supreme Court held per the lead judgment of Karibi - Whyte, J.S.C. (as he was) thus:

"jurisdiction is determined by the claim of the plaintiff."

See also Abia State Transport Corporation and Others v. Quorum Consortium Ltd. (2009) 4 S.C.N.J. 1, Oduko v. Government of Ebonyi State (2009) 4 S.C.N.J. 76 and Barclays Bank v. Central Bank of Nigeria (1976) 6 S.C. 175.

It is also necessary to look at section 251(1) (e) of the 1999 Constitution, as amended. For clearness, it provides -

'Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters -

arising from the operation of the Companies and Allied Matters Act or any other enactment replacing that Act or regulating the operation of companies incorporated under the Companies and Allied Matters Act." (my emphasis).

Section 251(1) (e) of the 1999 Constitution (supra) refers to incorporated bodies, not an unincorporated body. Also, the operative words "operation" and "regulating" in the subsection mean the implementation or application of the provisions of CAMA by the court towards the carrying on or managing of a company and directing influence or control over the functioning of companies incorporated under CAMA - see A-G Lagos State v. Eko Hotels Ltd. (2006) 18 NWLR (Pt.1011) 378 at 458, 459, 460 per Tobi, J.S.C. (as he was), Babington - Ashaye v. E.M.A. Gen. Ent. (2012) All FWLR (Pt.645) 256 at 284-285. The court below was, in my considered view, wrong to hold that it was called upon to enforce the provisions of CAMA bearing on the running of a company, when the issue that required its determination was the propriety of an unincorporated body owning land in its unincorporated name.

I hold that by the combined force of section 272(1) of the 1999 Constitution, as amended, and section 39(1) (a) of the Land Use Act (CAp. 202) Laws of the Federation, 1990 read with the case of Adetayo v. Ademola (2010) 15 NWLR (PT. 1215) 169 the court below to the exclusion of the Federal High Court has the jurisdiction to decide land dispute. Consequently, the court below erred in declining jurisdiction to ascertain whether an unincorporated body can own land eo-nomine or in its unincorporated status and enter into a pre-incorporation contract with a third party in respect of the land.

The respondent's stand was that Overseas United Distillers Ltd acquired corporate existence by its transformation to United Distillers and Vintners Nigeria Ltd and presently to Stirling Beverages Limited. The appellants challenged the said corporate status in paragraphs 21 and 22 of the 4th amended statement of defence at page 83 of the record. The onus therefore shifted to the respondent to prove the alleged incorporation by tendering in evidence a certified true copy of its certificate of incorporation see Goodwill Trust v. Witt and Bush (2011) All FWLR (Pt.576)  517 at 533-534 per the lead judgment of Mukhtar, J.S.C. (now C.J.N.) and section 36(6) of CAMA.

The respondent did not tender in evidence a certified true copy of certificate of incorporation of Overseas Distillers Ltd: It's crucial witness, the PW1, answered under cross-examination at page 105 of the record that:-

I have nothing to say to your suggestion that Overseas United Distillers Ltd was never incorporated."

The DW1, the general manager of Stirling Beverages Ltd, gave unshaken evidence at page 109 of the record of the non-existence of Overseas United Distillers Ltd, nor of its metamorphosis to Stirling Beverages Ltd, An assistant manager with the Corporate Affairs Commission, (CAC) Abuja, the DW3, also, testified at page 115 of the record that:-

".....according to our records at CAC, there is no such company registered by the name - Overseas United Distillers Ltd. By our records no such company was ever incorporated."

The incorporation of Overseas United Distillers Limited was accordingly not proven by the respondent. The respondent's argument based on the finding of the court below that Exhibit S bears the name of Overseas United Distillers Limited does not hold ground in light of the presence of the name "Nigeria" in Exhibits S and R which is totally absent from the name of Overseas United Distillers Limited, so Exhibits S and R cannot, in my considered view, refer to Overseas United Distillers Limited: Both are not the same.

The holding by the court below at pages 176-177 of the record that Overseas United Distillers Ltd was later registered in the name of Overseas United Distillers (Nig) Ltd and assumed that name in Exhibit S which it used to obtain the C of O in Exhibit D is unsubstantiated by the evidence on record, as there is no shred of evidence establishing the nexus between Overseas United Distillers Ltd and Overseas United Distillers (Nigeria) Ltd. Accordingly, I agree with the appellants that it was not proven that Overseas United Distillers Ltd was an incorporated or registered company, and that it later changed to Overseas United Distillers (Nigeria) Ltd and subsequently to United Distillers and Vintners Nigeria Ltd and finally to Stirling Beverages Limited,

The respondent admitted through PW1 at page 100 of the record that:-

"The original owner of the land in dispute was Ogbe Alagbe family."

Although the respondent's action was for trespass and injunction, title of the disputed land was put in issue by the denial of the original owner of the land, (the appellants' family), that it belongs to the respondent - see Badejo v. Sawe (1984) 6 S.C. 350 at 353 following England v. Palmer 14 WACA 414 at 426. The burden was thus on the respondent to prove title to the disputed land see Adedeji v. Oloso (2007) 1 S.C.N.J. 397 at 414 and Ochonma v. Unosi (1965) NMLR 321 at 323. Exhibit A reproduced below was relied upon by the respondent as its source of title to the disputed land:

"OGBE/ALAGBE FAMILIES

LAND AT ONIBUKU VILLAGE ALONG IDIROKO MOTOR ROAD - THE PROPERTY OF OGBE/ GBE FAMILIES, OTTA, OGUN STATE. NIGERIA.

This is to confirm that we, whose names appear hereunder being accredited representatives of OGBE/ALAGBE families, with Alhaji ABUDU LAWAL (Head of Family), Joshua Ogabi (Baale of Onibuku Village Otta Town) representative of Ogbe Family) and Bintu Alagbe (representative of Alagbe Family) have, sold Twenty acres of Land from the family layout at the above location, to Overseas United Distillers Limited for the sum of N2,000.00 (Two Thousand Naira) Receipt of which is hereby acknowledged. The said Land shall be surveyed at a later date by the buyer.

..............    Alhaji Abudu Lawal

(Head of Family)

..............    Madam Bintu Alagbe

(Family representative of Alagbe)

..............    Joshua Ogabi

(Baale of Onibuku Village)

Date ...................... 1976

The foregoing above having been read over and explained to them in Yoruba Language by me............. when they appeared well to understand the same before affixing their marks thereto in the Presence of

(sgd)

................

AJAYI

(FAMILY SECRETARY)."

The first onslaught on Exhibit A by the appellants was that it did not emanate from their family as the signatures thereon are not those of their family members. There was no specific or clear-cut cross-examination of the respondent's witnesses on Exhibit A by the appellants to suggest the signatures thereon were forged and did not belong to members of their family, so following the case of Agbonifo v. Aiwereoba (1988) 1 NWLR (pt.70) 325 at pages 342-343 the appellants would not be heard to rake up the issue for the first time in their defence.

Besides, forgery - a criminal allegation - was not particularized in the appellants' pleadings as rightly held by the court below, nor was the said allegation proved beyond reasonable doubt - see ACN v. Lamido (2012) All FWLR (pt.630) 1316 at 1338 Arowolo v. Ifabiyi (supra). In my respectful view, the net result is that the appellants did not prove that the signatures on Exhibit A were forged and did not belong to members of their family and the court below was correct in holding that the signatures on Exhibit A were those of the members of the appellants' family.

Exhibit A revealed the disputed land was sold to Overseas United Distillers Limited. The respondent did not establish incorporation or registration of Overseas United Distillers Limited as a company. The effect is that the disputed land was sold to an unincorporated body. In my view, much turns on section 72 of CAMA cited by the appellants which provides:-

"(1) Any contract or other transaction purporting to be entered into by the company or by any person on behalf of the company prior to its formation may be ratified by the company after its formation and thereupon the company shall become bound by and entitled to the benefit thereof as if it has been in existence at the date of such contract or other transaction and had been a party thereto.

(2) Prior to ratification by the company, the person who purported to act in the name of or on behalf of the company shall, in the absence of express agreement to the contrary, be personally bound by the contract or other transaction and entitled to the benefit thereof. "

The Supreme Court case of S.G.F. v. S.G.B. (Nig) Ltd. (1997) 4 NWLR (Pt.497) 8 at 28 construed section 72(1) (supra) thus:-

"....the law must intend that section 72(1) would apply to pre-incorporation contracts already ratified by existing companies as well as to such contracts yet to be ratified..." (my emphasis).

By section 37 of CAMA cited by the appellants, only an incorporated company can own or buy land in its corporate name. The Overseas United Distillers Limited not being an existing registered or incorporated company section 72(1) of CAMA (supra) would not apply to it.

On the tenor of section 72(2) of CAMA (supra), it seems the contract or transaction remained personally binding on and enforceable by the named or identified human being or appointed trustee(s) that entered into it for and on behalf of the unincorporated body - see Anyaegbunam v. Osaka and Others (2000) 1-3 S.C.N.J, 1 at 9-10 where Katsina-Alu J.S.C, (later CJN) held in the lead judgment as follows:-

In view of these reliefs, it becomes imperative to decide the status of the said unincorporated church organisation called the Light of Christ Praying Band, Onitsha in relation to the respondent and other defendants who were appointed its trustees. In this regard I refer to the provisions of the land (Perpetual Succession) Act, (Cap.98) Laws of the Federation of Nigeria, 1958 Vol. IV. Section 2(1) thereof provides inter alia -

"2(1) Trustee may be appointed by any community of persons bound together by custom, religion, kinship or nationality or by any body or association of persons established for any religious, educational, literacy, scientific, social or charitable purposes, and such trustees or trustee may apply... to the Minister for a certificate of registration of the trustees or trustee of such community, body or association of persons as a corporate body."

It seems clear to me that the above provision shows that an unincorporated body or association of persons is a factual reality. The association, though unregistered, must appoint trustees or trustee who will apply for registration. Thus the law takes into cognizance the fact that before the application is made, i.e. while the association is not registered in law, certain persons may be appointed trustees who must act in that capacity.

Clearly, as the Act recognises pre-incorporation ownership of land, Exhibit H does not conceivably violate same. A close examination of Exhibit H clearly establishes that the gift vested in the trustees in their capacity as trustees." (my emphasis).

See also A.C.B. Plc and Another v. Emostrade Ltd. (1998) 2 NWLR (Pt.536) 19 at 33.

It has to be so, because an unincorporated body is not a juristic person and cannot enter into any contract or transaction and/or own land in its unincorporated name save through trustee(s) that are natural persons - see by analogy Garba and Another v. Sheba International (Nig,) Ltd. (2002) 1 NWLR (Pt.748) 372 at 401, N.I.P.C. Ltd. v. B.W.A. Ltd. (1962) 2 N.S.C.C. 357. The case of Iyke (supra) cited by the respondent is, in my view, irrelevant. It deals with a rule of court allowing unregistered business enterprise or partnership to sue and be sued eo nomine, It is not authority for an unincorporated body to buy or own land in its unincorporated name or eo nomine.

Exhibit A (supra), the source of respondent's title to the disputed land, does not bear the name or identity of the natural person(s) that entered into the land sale agreement on behalf of the unincorporated Overseas United Distillers Limited. Only the names of members of the vendor family Alhaji Abudu Lawal (head of the family), Madam Bintu Alagbe (family representative of Alagbe), Joshua Ogabi (Baale of Onibuku Village) and E. O. Ajayi (family secretary) appear on Exhibit A. The totality of the evidence on record does not, also, show that trustee(s) had been appointed to act for the unincorporated Overseas United Distillers Limited respecting the land sale transaction in Exhibit A. I agree with the appellants that because of the said unincorporated status, Exhibit A did not vest title to the disputed land in the unincorporated Overseas United Distillers Limited to pass to the respondent's vendor, by sale. The court below held that the respondent proved ownership of the disputed land through purchase of the land under customary law. The appellants contended that the names of the witnesses to the alleged purchase were not pleaded nor given in evidence. True, Exhibit A (supra) does not mention the names of any witness or witnesses that witnessed the purchase of the land by the respondent's predecessor-in-title. The amended statement of claim at pages 19-21 of the record, the consequential amended reply and defence to the counter-claim at pages 88-91 of the record, and the evidence for the respondent at pages 100-109 of the record did not, also, disclose the names of the witness(es) that witnessed the land sale in Exhibit A. I accept the appellants' submission that the failure to plead and lead evidence on the names of the witness(es) to the land sale transaction in Exhibit A rendered the sale transaction under customary law ineffectual and impotent - see Egonu and Others v. Egonu and Others (1978) 11-12 S.C. 111 at 127, where Obaseki, J.S.C. (as he was) held in the lead judgment that:-

''...a sale under customary law involves payment of money by the purchaser and delivery of possession by the vendor. Above all, the transaction must be in the presence of witness." (my emphasis).

See also Adedeji v. Oloso and Others (supra) at 414-415, 425, Folarin v. Durojaiye (1988) 1 N.W.L.R. (Pt.70) 351 at 366, Cole v. Folami (1956) 1 F.S.C. 66, Erinosho v. Owokonnam (1965) N.M.L.R. 479, Orunengimo v. Egebe (2007) 15 NWLR (Pt.1059) 630, 650.

Consequently the purported sale of the disputed land by the appellants' family to the first predecessor-in-title of the respondent, Overseas United Distillers Limited, under customary law was not proven as wrongly held by the court below.

In my respectful view, the respondent failed to prove the root of title of one Alhaji Alimi Abiodun Odunlami who allegedly assigned the disputed piece of land to the respondent vide Exhibit C. Because party claiming exclusive possession or ownership of land by purchase is bound to prove the root of title of the predecessor-in-title see Fasoro v. Beyioku (1988) 2 NWLR (Pt.76) 263 at 271 thus:-

"where a party's root of title is pleaded as say - a grant or a sale or conquest etc. that root has to be established first, and any consequential acts following therefrom can then properly qualify as acts of ownership, in other words acts of ownership are done because of, and in pursuance to ownership," (my emphasis).

See also The Registered Trustees of the Diocese of Aba v. Helen Nkume (2002) 1 NWLR (Pt.749) 726, Orunengimo v. Egebe (supra) at 650, Adole v. Gwar (2008) 11 NWLR (Pt.1099) 562 at 592, Alli v. Alesinloye (2006) 6 NWLR (Pt.660) 177.

The acts of possession of 17 years built on Exhibits A, B, C, D and F upon which the respondent relied for the action in trespass and injunction against the appellants were thus acts of trespass and of no moment to its case, in my view see Fasoro v. Beyioku (supra), Adole v. Gwar (supra), Aba v. Nkume (supra), Oluma v. Onyuna (supra).

Some words on Exhibit F. It is a purchase agreement for sale of land. The last page in the last paragraph thereof states:-

"In witness WHEREOF the vendor has unto set his hand the day and year first above written.

1. Alhaji Lawal - Chairman of the family.

2. Chief Idowu Ogabi - Member.

3. Witness by: - Alhaji A. A. Odunlami."

Exhibit F was therefore signed. It purported to come from the appellants' family. Due execution of Exhibit F, a purchase agreement, is, however unnecessary in a legal contest between the vendor and the vendee for the enforcement of the contract of sale of land under customary law -  see Fakoya v. St. Paul's Church Shagamu (1966) WNLR 31 at 35.

It is, also, not mandatory that such a document, which is regarded as evidence of a transaction between the parties, be registered vide  Agwunedu v. Onwumere (1994) 1 NWLR (Pt.318) at 386 - 387 following the cases of Akingbade v. Elemosho (1964) 1 All NLR 154, Oni v. Arimoro (1973) NMLR 237.

Be that as it may, like Exhibit A, Exhibit F does not contain the names of the witnesses that witnessed the transaction and for the said reason Exhibit F would not be proof of purchase of a piece of land under customary law as earlier held in the discourse in respect of Exhibit A.

The band-wagon effect of predicating the documents of title to the land in dispute on Exhibits A, B, C, D and F when the root of title to the land was fundamentally faulty rendered the respondent's case of acts of possession without foundation which the court below, wrongly, in my view, upheld - see Ukaegbu v. Nwokolo (supra), Madu v. Madu (supra), Olubodun v. Lawal (supra).

The respondent raised the defences of laches, acquiescence and time bar against the counter-claim in paragraph 14 of the consequential amended reply and defence to the counter-claim at page 90 of the record. The court below did not consider the plea in its judgment at pages 162 - 180 of the record. There is no cross - appeal or respondents notice to vary the judgment of the court below on other grounds. The arguments on laches, acquiescence and time bar are not based on any ratio of the judgment and are accordingly incompetent see Gateway Paper Products (Nig) Ltd. v. Intercontinental Bank Plc (2012) 22 WRN 166 at 177, Congress For Progressive Change (CPC) v. Independent National Electoral Commission (INEC) and Ors. (2012) 22 WRN 166 at 177, Congress for Progressive Change (CPC) v. Independent National Electoral Commission (INEC) and Ors. (2012) 29 WRN 1 at 41. So, also, are the arguments on the non-joinder of Ogun State Government to the counter-claim; the appellants basing their counterclaim on pieces of land sold to third parties; and the identity of the land which did not arise from the grounds of appeal and the issues for determination as well as from the ratio of the judgment of the court below and are on that basis incompetent see African Newspapers Ltd and Anor v. Akano (2012) All FWLR (Pt.605) 345.

Some minor matters on the stamping of the purchase receipts in Exhibits 0, 01, 02, 03, 04, N and T during the time range of 12.0.64, 10.8.65, 24.4.72, 6.4.74, 21.6.76, 20.12.75, 29.6.76 adverted to by the court below in its judgment at page 172 of the record should not have raised eye-brow because stamping of documents is not prerequisite for their admissibility or the weight to be attached to them - see Okuwobi v. Ishola (1973) 3 S.C. 43 at 48M per Elias, CJN (of blessed memory); so, whether the said documents were stamped within the same time-frame is immaterial and should not have influenced the court below to view the said documents with suspicion.

It was earlier stated in the discourse that the source of title of the respondent to the disputed land was not proven. It logically followed that the documents of title of the respondent to the disputed land - the two conveyances in Exhibits B and C, the certificate of occupancy in Exhibit D - which were based on the impugned Exhibits A and F on the ground inter-alia that both Exhibits A and F did not prove sale of the disputed land under customary law, the counter-claim at pages 164-165 of the record for the said documents to be set aside should have been granted by the court below.

Accordingly, I see merit in the appeal. I hereby allow it. The judgment of the court below granting the respondent's claim is hereby set aside. The counter-claim is granted in terms of the reliefs sought in paragraph 33 of the 4th amended statement of defence and counter-claim. Parties to bear their costs on account of the established fact on record that the appellants employed self help towards resolution of the dispute before it reached the court below at the instance of the respondent and; by their said aggressive conduct, the appellants are not entitled to costs. I make no order on costs.

MONICA B. DONGBAN-MENSEM, J.C.A.: I agree entirely with the lead judgment prepared by my learned brother IKYEGH JCA, and I adopt same as mine.

This appeal is allowed.

As in the lead judgment, no order is made in favour of the Appellants who sought to take the law into their hands by resorting to self-help, a conduct which could lead to anarchy in a society so prone to violence.

CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the draft of the lead judgment of my learned brother JOSEPH SHAGBAOR IKYEGH, JCA.

His Lordship has dealt with the issues raised in this appeal in great detail, I adopt same as mine in allowing the appeal, I abide by the order awarding no costs.

Appearances

Mr. F. O. B. Afuape      For the Appelants

Mr. A. Adeoye     For the Respondents