Chief Douglas Macjaja (For Himself And The People Of Qpobo Town) & Ors V. Chief Ntuen Ibok & Others (For Themselves And The Ibibio People) & Ors (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim in Native Court—Plaintiff suing in representative capacity—Transfer
to Supreme Court—Applicability of Order IV, rule 3 to suits commenced in
ivattive Courr—Ftaaice and Procedure—Weight of evidence.
Where an action is commenced in a Native Court, a party thereto who sues or defends in a representative capacity need not, on the transfer of the action to the Supreme Court, obtain the approval of the Court, under Order IV, rule 3, to appear in a representative capacity.
Where the trial Judge has arrived at findings of fact, and there is evidence to support those findings, the Court of Appeal will not interfere with them.
Cases referred to:
- Yesufu Ajose v. Sunmola A gangan, W .A .C.A 27th October, 1945 (unreported).
- Musa Apena & Others v. Ajose Oniku & Others, W .A .C.A ., 17th May, 1945 (unreported).
- Kuntz; v. Kuma, 5 W.A.C.A. 4.
Appeal from the Supreme Court of Nigeria.
Mbanefo and Udoma for Appellants (defendants below).
Adesigbin for Respondents (plaintiffs below).
The following joint judgment was delivered:
The only legal point of substance taken and argued in this case is to be found in ground 2 which reads as follows:—
” 2. Because the plaintiffs failed to comply with the requirements necessary in order to sue in a representative capacity—want of leave of Judge. before action brought.”
The history of this case is as follows: It was first brought in the Native Court but was transferred to the High Court on 22nd April, 1941. Pleadings were ordered by the High Court on the 20th June, 1941, which order was complied with by the 21st August, 1941. For various reasons the hearing of the case was not started until 29th November, 1944, and on the 21st February, 1945, judgment was given in favour of the plaintiff.
On the 14th October, 1944, the Governor approved of the following rule of Court :—
* ” 7. Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the Court be authorised by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties so interested.”
The respondents were suing on behalf of the Ibibio people and failed to obtain
the approval of the Court so to do. In the case of Yesufu Ajose v. Sunmola Agangan (1) it was held that ” statutes which make alterations in procedure are retrospective ” and on the strength of this judgment the appellants argue that the appeal should be allowed or, as was done in the last mentioned authority, the case returned to the trial Court to enable the respondent to make the necessary application, which would obviously be granted in the circumstances of this case.
At first sight there would appear to be merit in this submission, but we are of the opinion that as under rule 31 of the W.A.C.A. Rules 1937, t this Court is given ” full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance “, it would be right and proper in circumstances such as these to grant the application ourselves.
Such an order would effectually dispose of this point but the matter does not rest there. In the case of Yesufu Ajose v. Sunmola Agangan (1), the writ was issued in the High Court and naturally all rules of Court apply to writs in the High Court, but in this case the writ was issued in the Native Court and transferred to the High Court and the Native Courts are not subject to the High Court rules from which it emerges that the writ, as originally laid, was in order and required no application under the Rule quoted. Now in the case of Musa Apena & Others v. Ajose Oniku & Others (2), it was held that ” the normal time to make the application would be immediately after the filing of the writ “. The writ having been filed in the Native Court, this would clearly be unnecessary. Can it be said that because some authority exercises his right to transfer the hearing of the case to another Court that automatically the rights of one of the parties to the suit may be stultified unless he persuades the new Court to approve of his application ? We think not.
The writ was properly filed in the Court which had jurisdiction to hear the case and was properly transferred, and we are of the opinion that the procedure of the High Court can only come into operation with regard to matters subsequent to the filing of suit. Can it be suggested that if the filing fee in the Native Court was ls. and that in the High Court £10 that the effect of a transfer would be to mulct the plaintiff in the sum of £9 19s. Od. We are of the opinion that, if a writ is properly filed in the Native Court and is thereafter transferred, it must be deemed to be properly before the new Court.
We are aware that it has been held in the above-mentioned case that the order granting approval under this rule can be made at any time, but we are not of the opinion that this affects the principle involved in this case.
The other points argued on behalf of the appellant were based entirely on fact or, as was ingeniously suggested by Counsel, an erroneous series of deductions from admittedly proved facts. The result is, however, much the same.
The trial Judge has found as a fact that :—
- the plaintiffs had satisfied him as to their previous possession of this land;
- the receipt of tribute from previous occupiers; and
- the existence on the land of a place of sacrifice sacred to the plaintiffs.
There was evidence to support these findings, which led to the irresistible conclusion that the plaintiffs are entitled to a declaration of title and injunctions.
There is, of course, evidence from which the Judge might have taken the opposite view but this he in the end rejected and we cannot too often quote to appellants the dicta of the Privy Council with regard to the findings of fact by Courts of First Instance who have the opportunity to see and hear the witnesses.
” This was a case which depended very largely upon the verbal evidence of the witnesses, and the learned Judge who tried the case had the great advantage of seeing the witnesses and of hearing them give their evidence.
He accepted the evidence of the plaintiff’s witnesses in respect of the material questions in issue. Their Lordships have considered the evidence which was produced by both sides and they are of the opinion that there was sufficient evidence to justify the conclusion at which the learned judge arrived and there is no reason for interfering with his decision.” (Kama v. Kama, 5 W.A.C.A. 4).
There are many other authorities to the same effect.
The appeal is dismissed with costs assessed at X51 18s. Od.
Appeal dismissed.
