Chief Dennis Afor Ogar & Ors V. Chief J. I. C. Igbe & Ors (2009)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
On 28/8/06 the Plaintiffs now appellants took out a Writ of Summons at the High Court of Cross River State, Ogoja in Suit No.HJ/31/2006 seeking, various reliefs against the Defendants/respondents contained in paragraph 13 of the Statement of Claim as follows:
- WHEREOF the plaintiffs claim against the defendants jointly and severally as follows:
(i) A declaration that the so-called Clark’s report or arbitration award is non-existent, null and void and of no consequence whatsoever.
(ii) A declaration that the State Executive Council of the Government of Cross River State has no right or colour of right to reconfirm or affirm the decision or arbitration award of H. J. S. Clark of 1947 and that the purported reconfirmation of same is ultra vires, illegal and unconstitutional.
(iii) A declaration that the purported confirmation of the decision or arbitration award of H. J. S. Clark of 1947 without hearing from the parties offends the rules of natural justice and therefore unconstitutional illegal, null and void and of no consequence whatsoever.
(iv) A declaration that the State Executive Council of the Government of Cross River State has no right or colour of right to enforce the decision of H. J. S. Clark of 1947 by directing the 2nd defendant to undertake a survey of the disputed area and demarcate the boundary line.
(v) AN ORDER of injunction restraining the defendants, their agents, servants of privies from entering the land the subject of inquiry held by H. J. S. Clark for the purpose of undertaking the survey and demarcation of boundaries therein or interfering in any manner howsoever with the land in question.”
On being served with the Statement of Claim, the 1st and 2nd defendants filed their Statement of Defence on 4th October, 2006 and urged the court to dismiss the claims as frivolous, vexatious, unfounded and an abuse of court process and that the court lacked jurisdiction to entertain the claim as is presently constituted. A motion on notice was filed on 5th October, 2006 seeking an order dismissing the action on the grounds that – .
(a) The suit is an abuse of the court’s process.
(b) That the suit discloses no reasonable cause of action.
(c) That the mater has been decided by a competent Tribunal before now.
(d) AN Order directing the Cross River State Government to enforce the Clark’s decision.
The plaintiffs filed a 6 paragraph counter-affidavit in opposition to the motion. The matter was set down for hearing and after arguments had been taken, the learned trial Judge in a reserved judgment delivered on 15th January, 2007 dismissed the Plaintiffs’ action. The plaintiffs felt aggrieved and filed their Notice of Appeal on 26th January, 2007 containing 10 grounds of appeal. However, grounds 6, 7, 8 and 9 were deemed abandoned since no issues were distilled from them. The appellants formulated two issues from the remaining six grounds namely 1, 2, 3, 4, 5 and 10. The issues formulated which all the respondents adopted are:-
(1) Whether the learned trial judge was right in holding that the action did not disclose a reasonable cause of action.
(2) Whether the lower court was right in holding that the Clark’s Report of 1947 was duly authenticated and certified without having recourse to Exh. MM5 and oral evidence.
Before considering the issues raised in the appeal, it is necessary to give the brief background facts leading to the institution of the action. The plaintiffs as well as 1st and 2nd defendants are boundary neighbours and have been having a protracted land dispute dating back to the early 1940s. The dispute led to hostilities which culminated in the colonial administration setting up an Inquiry under the Inter Tribal Boundary Settlement Ordinance of 1933. The Senior District Officer, H. J. S. Clark who conducted the inquiry reached and announced a decision which the plaintiffs maintain he failed to sign but which the defendant claim was authenticated and the parties indicated interest to appeal but never did. Several years after Clark’s decision, the plaintiffs entered the 1st and 2nd defendants land and were charged to Magistrate’s Court, Ogoja and were convicted. On appeal to the High Court, the conviction which was predicated on Clark’s decision was upheld. The plaintiffs then initiated proceedings in the High Court purporting to challenge the title of the 1st, and 2nd defendants on the non-existence of the report in Suit No. HJ/2/71 while the 1st and 2nd defendants also initiated Suit No. HJ/6/71. The two suits were consolidated and judgment entered partly in favour of the plaintiffs and partly in favour of the defendants on 17/2/77 but same was set aside by the then Federal Court of Appeal on 3/2/82 in Appeal No. FCA/E/142/77 on the ground that the Judge delivered the judgment without jurisdiction. It was declared null and void and the matter remitted for retrial in the Ogoja High Court. Fifty-nine years after the Clark’s inquiry, the Cross River State Executive Council reconfirmed the decision of Clark and directed the 4th Defendant to survey and demarcate the boundary line between the plaintiffs and the 1st and 2nd defendants in accordance with the Clark’s report. It is on account of this that the plaintiffs filed the suit challenging the government’s right to enforce or reaffirm Clark’s decision without hearing from them since the arbitration report was not signed. The dismissal of the action in limine prompted the present appeal.
The crux of this appeal resolves round the non-signing or authentication of the Clark’s report. Although the Court of Appeal in its judgment in Appeal No. FCA/E/142/77 delivered on 3/2/82 nullified the judgment in the consolidated suits HJ/6/71 and HJ/6/91 as having been given without jurisdiction and ordered that the case be sent back to Ogoja Judicial Division for hearing de novo, there is no indication that the said order was carried out. What ignited the present case under appeal was the decision of the Cross River State Government directing the Surveyor-General of the State to undertake a survey of the area and demarcate the boundary line between the two communities in accordance with the Clark’s Arbitration Award of 1947.
Learned counsel for the appellants argued that the plaintiffs fully conscious of the fact that the decision which the defendants are surreptitiously seeking to enforce is a nullity and unenforceable chose the option of commencing the action by an ordinary writ of summons because it was not signed and submitted after x-raying a number of decisions dealing with unsigned documents particularly judgments that any document that is not signed is a worthless document which does not have any efficacy in law. He placed reliance on the following cases: OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) 8 NWLR (pt. 928) 547; ABIA STATE v. AGHARANYA (1999) 6 NWLR (pt. 607) 362 and OJO v ADEJOBI (1978) 3 SC 65. He submitted that the Clark’s report of 1947 was not authenticated by reason of its not being signed by the officer who conducted the Inquiry.
On whether a reasonable cause of action was disclosed, learned counsel submitted that the only processes the court is entitled to look at are the writ of summons and statement of claim. After chronicling the events that led to the setting up of the Inquiry headed by Mr. H. J. S. Clark which produced the unsigned report, learned counsel then Posed the question whether a case of nullity was made out in the pleadings of the plaintiffs to which he answered in the affirmative and referred to paragraphs 8, 9 and 11 of the Statement of Claim and submitted that if there was any ambiguity as to the allegations of nullities of the decisions they were cleared in the first and third reliefs of the plaintiffs in paragraph 13 of the Statement of Claim. It was his further contention that having made averments in their Statement of Claim which If proved would inexorably lead to the nullification of the Clark’s Report the Statement of Claim disclosed a reasonable cause of action when the allegation in the Statement of Claim is considered and submitted by relying on ILOZOR v AHMADU (2003) FWLR (pt. 163) 132 that the fact that the cause of action is weak or unlikely to succeed is no-ground to strike it out.
The learned Senior counsel for 1st and 2nd respondents countered the submission on the effect of the non-signing of the Clark’s report by contending that the appellants had relied on it and referred to paragraphs 7 and 10 of the Statement of Claim and submitted that from the pleadings there exists a Clark’s, report and since opportunity was given to the parties who felt aggrieved to appeal to the Resident to review the decision reached at the Inquiry but the appellants failed to utilize the opportunity, the law does not require that the appellants or respondents be heard before the enforcement of a judgment which has not been appealed against.
What the appellants are seeking to achieve according to learned senior counsel is that the people should remain without knowing their boundaries so that anarchy will continue to reign. It is the view of learned senior counsel that the appellants’ cause of action is not justiciable since the claims are declaratory reliefs and so not enforceable and the only executory relief is the claim for injunction which is ridiculous because the appellants are seeking a restraining order against the enforcement of a valid judgment in the absence of an appeal.
It was submitted on behalf of 3rd and 4th respondents on whether the suit disclosed a reasonable cause of action that there is nothing in the appellants’ Writ of Summons or Statement of Claim showing that the report does not exist or has been reviewed or set aside by a competent court of law. There is also nothing in the pleadings showing that the Cross River State Government cannot confirm, reconfirm and or enforce the Report without hearing oral documentary evidence from the appellants or that the State Government lacks the constitutional or legal authority to take steps or decisions in order to maintain peace and security within its territory. Learned counsel submitted that the, court cannot assume jurisdiction in a case where available facts constitute no reasonable cause of action:
On the authenticity of the Report learned counsel also referred to paragraphs 7 and 10 of the Statement of Claim and submitted that the existence of the Report is not in doubt and since the report is clear and conclusive it does not need fresh oral or documentary evidence from the appellants such as Exh. MM2 (the proceedings in Suits HJ/2/71 and HJ/6/71) before it can be enforced by the State Government.
In paragraphs 5, 7, 11 and 12 of the Statement of Claim the Plaintiffs now Appellants pleaded as follows:
“5. The plaintiffs and 1st and 2nd defendants have been having a protracted land dispute since the early 1940s. The said dispute culminated in litigation in the High Court of Cross River State, Ogoja Judicial Division in suit numbers HJ/2/71 and HJ/6/71. Judgment was delivered on appeal In Appeal No. FCA/E/142/77and remitted back for trial in the High Court.
- In 1947, Mr. H. J. S. Clark, the then District Officer for Ogoja held an Inquiry to decide the boundary between Ukpah and Ugboroh villages in the then Yakoro Clan now Bakwarra Local Government and Ishibori village in Ogoja Local Government. The inquiry was in respect of a much smaller area of land than that in contention in Nos. HJ/2/71 and HJ/6/71.
- Fifty-nine years after the Clark’s inquiry, the Government of Cross River State of Nigeria at the Instigation of the 1st and 2nd Defendants and without the plaintiffs being heard purported that the Cross River State Executive, Council has reconfirmed the decision of H. J. S. Clark’s Arbitration Award. It went ahead to direct the 4th defendant to undertake a survey of the area and demarcate the boundary line between the plaintiffs and 1st and 2nd defendants in accordance with the said Clark’s decision. A letter dated the 4th day of July 2006 by the Secretary to the State Government is pleaded.
- The plaintiffs state that the said decision or arbitration was never confirmed, reviewed or affirmed by any authority after it was announced and rejected by the parties.”
From the reliefs stated in paragraph 13 of the Statement of Claim, it is clear that what the appellants are seeking for in the present action is a nullification of the Clark’s report. It is not in doubt that the report exists. Since Clark in making the report acted under the Inter-Tribal Boundaries Settlement Ordinance 1933, under Section 3 of the said Ordinance, he was vested with judicial authority and that settlement reached subject to the rights of review is conclusive upon the issue so determined by him. If the appellants actually rejected the settlement reached by Clark, they had an opportunity to apply to the Resident in Ogoja to review it. Instead of exploring that option, they trespassed into the land adjudged to belong to the respondents and they were subsequently convicted for the trespass. It was stated in ANJOKU v NNAMANI (1953) 14 WACA 357 by Verity CJ at 359 that –
“When a dispute arises between two tribes as to the boundary between their communal lands and this boundary is settled under statutory authority, an attempt by either tribe to secure a declaration that their communal land lies the other side of the boundary so fixed raises in substance the identical issue as that which has been so settled.”
Since the appellants failed to utilize the avenue opened for review by the Resident and the Chief Commissioner (later called Lieutenant-Governor) they could not institute an action in the High Court to seek for a nullification of the settlement on the ground that the settlement was not signed. And even though a cause of action was disclosed in Suit No. HJ/31/2006, it constitutes an abuse of court process because the appellants abandoned the pursuit of Suits HJ/2/71 and HJl6/71 which the Court of Appeal had made an order of hearing de novo and the consolidated suits have the same substratum and parties as Suit No. HJ/31/2006. Since Suits HJ/2/71 and HJ/6/71 were still pending before the High Court, all that the appellants needed to do was to amend the Statement of Claim to include the declaratory and injunctive reliefs set out in paragraph 13 of the Statement of Claim.
I therefore find that apart from the action from which this appeal emanated being an abuse of court process, the entire appeal lacks merit and I accordingly dismiss it with costs assessed at N30,000.00 in favour of 1st and 2nd respondents.”
Other Citations: (2009)LCN/3148(CA)
