CHIEF GBENEBICHIE                                       Appellant

                         v.

                                                 1.  SOCRATES A WOSHIKA

   2.DANIEL ATSEMENE SUING AS TRUSTEES OF THE UTIEYIN ONUWAJE OMATEYE FAMILY  

                         FUND . AND CROSS APPEAL BETWEEN THE SAME             Respondents

.

Land Registration Ordinance-" Instrument" requiring registration­Document creating a Family Trust Fund not an " instrument ". Practice and Procedure-Non-suiting wrong where amendment possible.

The dispute related to rents of family land which the Family Head gave out on leases effected in his own name. A family meeting was held and certain Resolutions made, to which effect was given by a Memorandum of amendments to the previous "Constitution, etc.", which was replaced later by a new " Constitution and Regulations of the Omateye Family Fund ". The amended Constitution appointed the three respondents as Trustees of the Fund consisting of the rents, and a Committee of Management consisting of the Trustees and four other nominees of the family including the Family Head, to whom £80 was to be paid for life

The Memorandum of amendments bore the thumb-print of the Family Head and an interpreter's certificate and the signature of the District Officer as a witness. The new" Constitution" also bore the signatures of the Family Head and of the other members of the Committee. In between he and they executed a document authorising the District Officer to pay amounts on deposit and belonging to the Family and future rents to the Trust Fund. The Family Head attended several Committee meetings and received his first £80. Later he refused to show the Trustees copies of leases he had granted; he demanded but they with­held the next £80; then he sent a" Notice of Withdrawal" from the Resolutions, and continued to collect the rents but did not hand them over to the Trustees, who then sued the Family Head and nine others jointly and severally for a sum which the plaintiffs alleged the defendants received on leases of family property for the use of the Fund of which the plaintiffs were the Trustees. The Family Head put in a separate defence saying he had received the rents but was not liable to account, and in his evidence denied understanding the documents he had signed.

The trial Judge did not believe him but non-suited the Trustees on the ground that the action had been improperly brought against" the defendants jointly and severally in their capacity as members of the Committee of Management ... against the defendant (the Family Head) as one member of that Committee ", and ordered the parties to bear their own costs .. The first defendant-the Family Head-appealed and is referred to as the appellant; the plaintiffs also appealed but are referred to as the respondents in the judgment infra for clearness' sake: they are the Trustees of the Fund to whom the Family Head should have handed over the rents he collected.

The Family Head argued that the suit against him should have been dismissed on the ground that the Trustees (the plaintiffs) did not prove their case against him, and that the case was fought on the footing that he was sued in a representa­tive capacity as a member of the Committee of Management. (The Writ of Summons stated his name and the nine others, and below the ten names of the defendants were the words" Committee of Management The Itsekiri National Fund"; and in a paragraph of the Statement of Claim the defendants were [pg 101] described as the Itsekiri National Fund and the Family Head as the agent of that Fund.) His other ground was that the Memorandum and the new Con­stitution were "instruments" within the meaning of the Land Registration Ordinance and not being registered as required by section 6 thereof, could not have been admitted in evidence in view of section 15. He also argued that if the new" Constitution" were held to be binding upon him, he would be divesting himself of his responsibilities as Head of the Family contrary to customary law, which knew nothing of trusteeship.

For the Trustees (who also appealed) it was argued that they ought not to have been non-suited; that the evidence established the Family Head's liability and the Judge should have amended the proceedings.

Held: (1) The documents in question were not an assurance, nor were they intended to be one; their main object was to create a trust fund into which family rents should be paid; they were not" instruments" within the meaning of the Land Registration Ordinance, and they were properly admitted in evidence.

(2) The documents were binding on the Family Head: he understood them and accepted a benefit under them, viz. the payment of £80 in accordance with the documents.

(3) The Family Head was sued with the others jointly and severally; descriptive statements could not turn the suit into one against them in a representative capacity; no amendment was necessary, but if any had been necessary, the trial Judge ought to have made it and settled the real controversy instead of non-suiting the plaintiffs.

(4) The Family Head admitted having received the money claimed by the Trustees and the issue fought was his liability to pay that money to them; the Trustees ought to have had judgment in their favour.

Case cited:-

(1) Manche Kojo Ababio IV v. Quartey and another, Privy Council Appeal No. 94 of 1914.

Appeal by the first defendant (sued with nine others) and Cross-Appeal by the plaintiffs, from an order non-suiting the plaintiffs, the first defendant arguing that the case against him ought to have been dismissed, and the plaintiffs arguing that they ought to have had judgment in their favour: W.A.C.A. No. 3706.

T. E. Nelson Williams, with him H. T. E. Nelson Williams, for the first Defendant.

F. R. A . Williams for the Plaintiffs.

The following judgment was delivered:

Foster-Sutton, P. In this case the plaintiffs-respondents sued the defendant­appellant, jointly and severally with nine other persons, for the sum of £196 13s. Od. which the respondents alleged had been received by the appellant and the nine other persons in the year 1949, in respect of leases of family property, for the use of the Omateye Family Trust Fund of which the respondents were the trustees.

The Civil Summons described the defendants as the ..- Committee of Manage­ment The Itsekiri National Fund ".

The summons contained another claim, but \\'e are not concerned with it on this appeal.

Pleadings were ordered and the appellant filed a Defence on his own behalf, and the nine other persons filed a joint Defence.

Before the case came to trial, a motion was taken out by the respondents asking for leave to amend their Statement of Claim. Leave was granted and the amendment claimed against the ten defendants" jointly and severally" the sum of £393 6s. 0d. which it was alleged had been received by the defendants in the [pg102 ] years 1949 and 1950, for the use of the respondents, Trustees of the Omateye Family Trust Fund, in respect of leases of family property. The amendment in addition to increasing the amount claimed in the writ, remedied a defect in the Statement of Claim as originally filed. Order 32, rule 7 of the Supreme Court Rules requires that every statement of claim shall state specifically the relief which the

  I,   plaintiff claims and this is done by concluding the pleading with a statement of the relief or remedy to which the plaintiff claims to be entitled. This was not done in the original Statement of Claim, but the amendment rectified the omission.

The facts of the case are fully set out in the learned trial Judge's judgment.

It is, therefore, sufficient to say that certain members of the Omateye Family objected to the manner in which the first defendant (the appellant in this appeal) managed the income derived from family property. The appellant is the recognised " Head" or senior member of the family, and any leases of family land were effected by him in his own name, The dispute went on over a period of years, until finally a meeting was convened, with the appellant's consent, of members of the Omateye Family and certain "Conciliators". The meeting took place on the 18th October, 1947.

Notes of the meeting were kept and a copy was admitted in evidence as Exhibit" L ". Substantial agreement was reached at the meeting and in order to give effect to the resolutions proposed two documents were drawn up. Firstly,

II   a memorandum admitted in evidence as Exhibit" M ", which recites amendments alleged to have been agreed to at the family meeting held on the 18th October, 1947, to a document described as "The Constitution and Regulations of the Omateye Family Trust Fund ", dated the 3rd day of July, 1946, Exhibit" K ", and, secondly, a new" Constitution and Regulations of the Omateye Family Trust Fund ", Exhibit "N ", which amended Exhibit "K" in accordance with the resolutions embodied in Exhibit" M ".

The constitution, as amended, provided inter alia for the appointment of the three respondents as trustees of the Fund, the main revenue of which, it provides, shall consist of the Omateye family's share of rents derived from the Ajagbodudu Estate, the appointment of a Committee of Management consisting of the trustees and four other persons nominated by the family, including the appellant who is described as " Chief Gbenebichie ", such Committee to have the management and control of the Fund, and for the payment of £80 per annum to the appellant as an ex gratia grant to him for life as head of the family.

Exhibit" M " bears the thumb print of the appellant and a certificate signed by an interpreter and witnessed by the District Officer, Wani, to the effect that the document had been read over and interpreted to the illiterate signatories who " seemed perfectly to understand same before affixing their thumb prints thereon ", Exhibit" N " bears the right thumb impression of the appellant and the family's other three nominees on the Committee and the signatures of the three respondents as Chief Trustee, Treasurer of the Fund and Secretary of the Fund, respectively.

Pursuant to the agreement reached at the conciliation meeting held on 18th October, 1947, recorded in Exhibit" L ", and the execution of the memorandum dated 22nd October, 1947, Exhibit" M ", and before the execution of Exhibit " N " which is dated the 11th December, 1947, the appellant, among others, on the 11th November, 1947, executed Exhibit" A " which authorises the District Officer, Jekri-Sobo Division, Warri, to hand over any amounts on deposit and belonging to the Omateye family, and all future annual rents accruing from the land known as Ajagbodudu, the property of the Omateye family, to the Omateye Family Trust Fund. The appellant also attended several meetings of the Com­mittee, and on the 18th December, 1947, he drew his ex gratia payment of £80; Exhibit " SSS " is his receipt for it. All then went well for some time until a [pg 103] further disagreement arose because of the appellant's refusal to produce for the inspection of the trustees copies of leases which he had granted. This led to the trustees withholding the next ex gratia payment of £80 to the appellant who, having failed to obtain payment after a lawyer's letter of demand had been written asking for it, Exhibit" 'I ", sent a .. Notice of Withdrawal from the Resolution dated 22.10.47" to the respondents. He then continued to collect the rents paid in respect of the leases of the family land and declined to hand them over to the trustees of the Fund, the respondents. It was then that the Civil Summons initiating these proceedings was filed.

The appellant admitted receiving the rents from leases of the family properties for the years 1949 and 1950, but denied that he was liable to account for them to the respondents.

The action came for trial before H. M. S, Brown, J.

The appellant gave evidence to the effect that he did not understand the decisio"ns taken at the conciliation meeting of 18th October, 1947, or the effect of the documents Exhibits" M " and" N ", and he persisted in his assertion that he was not accountable to the respondents for any moneys received by him.

The learned trial Judge disbelieved the appellant's evidence, but entered a non-suit in respect of the respondents' claim for £393 6s. Od., on the footing that the action had been .. improperly brought against the defendants jointly and severally in their capacity as members of the Committee of Management ... against the defendant as one member of that Committee ", and he ordered that the parties should bear their own costs. It is against those orders that the first defendant on the record has appealed, and an appeal was also filed by the plaintiffs. In the interest of clarity I propose to continue to refer to the first defendant as the appellant and the plaintiffs as the respondents.

On behalf of the appellant it was submitted, inter alia, that the trial Judge was wrong in non-suiting the plaintiffs-respondents and that he ought to have dismissed their case against the appellant-defendant as they failed to prove their case against him; that the case was fought on the footing that the appellant was sued in a representative capacity as a member of the Committee of Management; that the documents, Exhibits" M" and" N ", were wrongly admitted in evidence as they are .. instruments" within the meaning of the Land Registration Ordinance (Cap. 108), and their admission in evidence is prohibited by section 15 of the Ordinance because they were not registered as required by section 6; that the learned trial Judge misdirected himself on the facts and came to wrong conclusions as a result thereof; that the conception of trusteeship is foreign to Native Law and Custom and the trial Judge was wrong in concluding that the appellant, as head of the family, could divest himself of his responsibilities as would be the case if Exhibit" N " was held to be binding upon him.

As I have already pointed out, the Civil Summons claims against the appellant, and the other nine defendants, jointly and severally, and the amended Statement of Claim does likewise. It is true that the appellant and the other defendants are described against the names at the head of the summons as .. Committee of Management The Itsekiri National Fund ", but in my view that is merely descriptive. Much was made in argument of the wording of paragraph 11 of the Statement of Claim which refers to the" afore-mentioned defendants, the Itsekiri National Fund ", and contains an alternative averment referring to the appellant as" agent of the said Itsekiri National Fund ". For my part, I can see no real substance in the point: they are merely averments and could not have the effect of turning an action against a number of individuals jointly and severally into one against them in a representative capacity.

A document only requires to be registered under the Land Registration Ordinance if it is one .. affecting land in Nigeria, whereby one party confers, [pg 104 ] transfers, limits, charges or extinguishes in favour of another party any right or title to, or interest in land in Nigeria ".

Although the ultimate sentence in paragraph 5 (a) of Exhibit" N " speaks of vesting in the Trustees all the real estate of the family, it is not an Assurance­nor, in my view, was it intended by the parties to be one. I do not think it can be said that either document confers, transfers, limits, charges or extinguishes in favour of another party, any right or title to, or interest in land. Their main object is to create a trust fund into which money received on behalf of the Omateye family is required to be paid. That being so, I am of the opinion that both documents were properly admitted in evidence.

The learned trial Judge did misdirect himself in his judgment where he states that the appellant signed Exhibit " N" in the presence of an Administrative Officer and that the witness William Mowarin, a qualified interpreter, gave evidence that the contents of the document were thoroughly interpreted to the illiterate signatories. That was done in the case of Exhibit" M ", but not in the case of Exhibit " N ". I do not think, however, that this misdirection could possibly have influenced the conclusions to which the trial Judge came. In this connection, the question the trial Judge had to determine was whether the appellant understood that trustees were being appointed and a trust fund created into which moneys received on behalf of the family were to be paid. In my view the evidence is overwhelmingly in favour of the conclusion that he did.

The appellant attended the meeting held on the 18th October, 1947, and the record of the meeting, Exhibit" K ", discloses quite clearly that the question of the appointment of trustees, a committee of management and the creation of a trust fund were fully debated. He signed Exhibit" A ", to which I have already referred, received the first payment of £80, the receipt for which, Exhibit" SSS ", is expressed to be a receipt given by him to the Treasurer-Trustee of the Omateye Family Trust Fund; admitted in evidence that the letter demanding the next payment of £80, written by his lawyer, Exhibit" T ", was written pursuant to Exhibit" M ", and it is relevant to observe that the first paragraph of the letter reads: " I have been consulted by Chief Gbenebichie in regard to the Omateye Family Trust Fund"; attended several meetings of the Committee of Manage­ment created as a result of the family meeting held on 18th October, 1947, and Exhibit" M" and" N "; and, finally admitted in evidence that he sent his " Notice of Withdrawal from the Resolution dated 22.10.47 ", Exhibit" U ", because, inter alia, he had not been given the next payment of £80.

In the circumstances I do not think it surprising that the learned trial Judge came to the conclusion that the appellant well understood the import of Exhibits "M"and N "

I am also of the opinion that the trial Judge was right in holding that Exhibit " N " is binding upon the appellant. It was brought into being as a result of an agreement reached by the appellant and the leading members of the Omateye family, and he accepted a valuable benefit under it.

In support of respondents' appeal, their Counsel submitted, firstly, that the learned trial Judge erred in law in non-suiting the respondents' claim as there was abundant evidence, which the trial Judge accepted, to establish the liability of the appellant; and, secondly, that the trial Judge erred in " failing to amend the proceedings ".

As already indicated, there was, in my view, a preponderance of evidence in favour of the respondents' case, and in view of the fact that the defendants in the action were sued jointly and severally I am of the opinion that the learned trial Judge could, and should, have given judgment in favour of the respondents against the appellant, for the amount claimed. It follows, therefore, that I take the view that no amendment was, in fact, necessary. Had it been necessary. however, I am of the opinion that the learned trial Judge ought to have granted [pg 105] it, even although it was applied for after both Counsel had completed their final addresses to the Court. The appellant admitted having received the amount claimed and the case was fought on the issue as to his liability or otherwise to pay the amount in question to the respondents. In the circumstances of this case an amendment as to capacity could not have worked any injustice on the appellant, and if I had considered an amendment necessary I should have had no hesitation in granting it here. The principles upon which the Court should act in a case such as this are clearly set out in the Lord Chancellor's judgment in the unreported Privy Council case of Manche Kojo Ababio IV v. Quartey and another (1), where he said;