Mba Nta & Ors. V. Ede Nwede Anigbo & Anor.(1972)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
The respondents were the plaintiffs in an action tried in the High Court, Enugu (W. J. Palmer J.) in which their claim as set out in the amended statement of claim reads as follows:-
“Wherefore the plaintiffs’ claims against the defendants are as follows:-
(a) A declaration that the boundary between the lands of the plaintiffs and defendants is as demarcated by Mr. Chadwick and confirmed in Awkunanaw Native Court suit No. 84/46 by Mr. Jackson which boundary is more particularly delineated and shown yellow in the plan CS/146/62 filed in this case Or
In the alternative, should the court hold that Mr. King’s decision is binding on the plaintiffs (which is denied), a declaration that the boundary between the lands of the plaintiffs and defendants is as demarcated by Mr. Chadwick and confirmed in Awkunanaw Native Court suit No. 84/46 by Mr. Jackson as varied by Mr. King which boundary is more particularly delineated and shown yellow in the plan No. CS/122/57 filed in this case.
(b)500pds general damages for trespass committed by the defendants since 1960 when they crossed the said boundary, demolishing boundary pillars and invaded the area of land bordered pink in plan CS/146/62 in possession of the owners, the plaintiffs, destroying plaintiffs’ farms therein, and erecting their own farms and huts.
(c) Injunction to restrain the defendants their agents and all those claiming through them from further trespass by crossing the boundary, farming, building or in any other way doing any act whatsoever as owners of the land across the boundary on the plaintiffs’ side unless with the approval and consent of the plaintiffs. ”
There were 12 defendants named on the writ but one of them, i.e. the 12th defendant, died during the pendency of the case. The remaining 11 defendants are the present appellants before us. As expressed on the writ, the defendants were sued “for themselves and as representatives of Amodu Akagbe people.” In due course the parties filed their pleadings. By their statement of claim the plaintiffs aver that they are natives of Agbani in the Udi Division of Enugu Province, that they were presenting the case on behalf of themselves and their people of Agbani, that the defendants are natives of Amodu Akagbe in the same Division of the same Province and that they were sued for themselves and as representatives of the other people of Amodu Akagbe and that the parties are owners of adjacent lands, the plaintiffs owning lands to the east of the defendants’ holdings. The plaintiffs’ statement of claim also avers that in the course of some bitter litigation between the parties over the years, one District Officer by name Chadwick in 1944 had demarcated a boundary between the parties, that the Chadwick boundary was judicially confirmed by another District Officer, I. C. Jackson, in the course of an appeal brought before him by the defendants against the judgment of the Awkunanaw Native Court of Appeal and that later, i.e. in 1956, one Mr. W. K. King, a Senior District Officer with Resident’s powers, confirmed but slightly varied the said boundary between the parties.
The plaintiffs’ statement of claim further avers in paragraph 21 thereof that having failed in all their endeavours to get the boundary altered, the defendants:-
“invaded the land across the boundary and began to clear portions of it, farm therein and build huts therein. They also destroyed the boundary pillars created therein and destroyed farms and crops of the plaintiffs therein. Since 1960 the defendants have been steadily infiltrating through this boundary and are extending more and more into the plaintiffs’ land. The area over which their trespass had covered is bordered pink in the plan CS/146/62 attached hereto. They have refused to retreat despite repeated warnings by the plaintiffs.”
The defendants’ amended statement of defence confirms the adjacency of their respective lands and avers that the defendants were indeed members of the Amodu Akagbe community. The defendants’ statement of defence further confirms that Mr. Chadwick, District Officer, did demarcate a boundary for the parties as stated by the plaintiffs but denies the judicial confirmation of that boundary by Mr. Jackson although it admits to the variation of the Chadwick boundary by Mr. King. The defendants’ amended statement of defence avers in substance that the lands immediately to the east by the boundary claimed by the plaintiffs to be the King boundary, had always belonged to the defendants who had owned it from time immemorial, that as owners in possession the defendants had always exercised dominion over the said lands, that the defendants were therefore not in trespass for their use of the said lands and that the defendants would set up against the claims of the plaintiffs “all equitable and legal defences.”
At the trial, evidence was given by both sides. The plaintiffs called a Mr. Emmanuel Onunkwo, Assistant District Officer, Udi Division, who produced the record in Native Court of Appeal No. 17/56 and the plan used therein and signed by Mr. King (the Senior District Officer with Resident’s powers) and marked by Mr. King as exhibit C in 1956. The Assistant District Officer produced the plan in evidence in the present proceedings as exhibit 2. The 2nd plaintiff, Nnamani Nwuha, also gave evidence. He testified that the defendants were sued by the plaintiffs because the defendants had entered into their lands some four years ago and farmed the lands and erected buildings thereon. He also stated that they had sued the defendants “for themselves and as representatives of Amodu Akagbe”. He further gave evidence expressing the satisfaction of his own people of Agbani with the boundary marked out by Mr. Chadwick and produced a number of judgments in the several cases between the parties. The plaintiffs’ surveyor, Francis Onochie, also gave evidence stating the he had made a plan for the plaintiffs showing the boundary of their lands with the Amodu Akagbe people as well as the area of the land in dispute. He produced the plan he had made and this was admitted in evidence as exhibit 8.
After the close of the plaintiffs’ case the defence also gave evidence. All the 11 defendants gave evidence to the effect that they farmed the land in dispute, that although they knew there was a Chadwick boundary they did not in fact know its course, that the land they farmed had always belonged to them and their ancestors and that each and everyone of them was only defending the action for himself and not for his village.
Under cross-examination when the 1st defendant, Mba Nta, was questioned about his representation of his people, he answered thus:-
“I agree that in 1946 I brought an action in respect of this land (84/46)-I was acting on behalf of my people. In this action I see in the writ that I was sued as representing my people. I can sue on my behalf or my community if I wish. Nobody can force me to defend on their behalf.”
He was then questioned about the Chadwick boundary and his answers were recorded as follows:-
“I know that Mr. Jackson fixed a boundary in suit 84/46. But I don’t know where that boundary is. (Asked to say whether he will accept the boundaries fixed by Mr. Jackson or by Mr. King as correct he refused to give a direct answer). I know where Robert Mba has his house. It is not on Agbani land. (Gives the same answer in respect of other persons). I shall not agree that that is Agbani land-even if the District Officer said that.”
The defence also called a surveyor Mr. George Obianwu who had prepared a plan of the area in dispute on their instructions and the surveyors produced the plan he had made for the defendants and this was admitted in evidence as exhibit 12.
In the course of a reserved judgment, the learned trial judge accepted the case of the plaintiffs and rejected the defence. He found as a fact that the plan prepared by the plaintiffs’ surveyor, exhibit 8, tallied with the plan used and signed by Mr. King, the Senior District Officer (with Resident’s powers) who had formerly adjudicated on the boundary dispute between the parties. The learned trial judge described the defence evidence as worthless. In accepting the boundary between the parties as that described by the plaintiffs he observed in his judgment as follows:-
“This point, therefore, must be decided in favour of the defendants.
The boundary between the two villages is that fixed by Mr. King in 1956 and shown in yellow on the plan CS/37/56-exhibit 2 in this case. The same boundary is shown in Plan CS/122/57-exhibit 8 in this case, which the plaintiff’s surveyor prepared at the request of the District Officer. The plaintiffs therefore succeed in the alternative to their first prayer and there will be a declaration accordingly.”
The learned trial judge took the view that the claim for damages for trespass was not made out and even though he accepted the evidence given for the plaintiffs that the defendants were on parts of land which clearly lie within the plaintiffs’ area, he did not award damages for trespass. In the same way, he was not willing to make an order of injunction in the form requested by the plaintiffs. Concerning the claim for injunction however he ordered as follows:-
“There will also be an injunction restraining the defendants and the people of Amodu Akagbe from building any new houses or opening any new farms on the Agbani side of the boundary.
If after six months from today any people of Amodu Akagbe remain on the Agbani side of the boundary without the plaintiffs’ permission the plaintiffs may treat them as trespassers and apply to this court for an order of eviction, or for damages or for both. The plaintiffs should of course name the actual individuals concerned.”
The learned trial judge also awarded costs of 150 guineas against the defendants.
The defendants dissatisfied with this judgment have now appealed to this Court against it. Several grounds of appeal were filed but objection in limine was successfully taken by learned counsel for the plaintiffs to a number of those grounds and these were accordingly struck out. At least one of the grounds of appeal was abandoned by learned counsel for the appellants.
The grounds of appeal argued were as follows:-
“(1) The learned trial judge was wrong in law when he held that ‘the plaintiffs therefore succeed in the alternative to their first prayer and there will be a declaration accordingly’, since the plaintiffs’ claim or writ did not contain this alternative prayer (although embodied in the amended statement of claim).
(2) The learned trial judge was wrong in law in holding that the judgment binds the whole people of Amodu Akagbe when in fact the defendants in their defence filed and in evidence in court indicated that they were personally defending the case.
(3) The judgment was against the weight of evidence.”
On the first ground of appeal learned counsel for the defendants contends that the claims of the plaintiffs as expressed in their statement of claim were different from those shown on their writ and that as the learned trial judge had entered judgment for the plaintiffs on the version of their claims as set out in the statement of claim, he was in error of law. There were, of course, no particulars of the error of law supplied in the ground of appeal as there should have been but we think it was more regrettable that learned counsel for the defendants was unable to refer us to any legal authority in support of his contention. We observe that the claims of the plaintiffs as expressed on their statement of claim were no different from their claims as set out on their writ. What the plaintiffs did, and we think they were entitled to do, was to add in their statement of claim an alternative form of the same declaration which they had sought in their writ in the light of the further facts disclosed and expressed by them in their statement of claim, especially with regard to the variation of the Chadwick boundary by Mr. King in 1956. The facts necessitating the alternative declaration were fully set out in the plaintiffs’ amended statement of claim to which the defendants pleaded without objection and on the basis of which the whole case was fully fought to the end. Furthermore, it is trite law that a statement of claim with respect to the claim set out therein supercedes the writ.
This statement of the law was indeed conceded by learned counsel for the defendants and we were rather surprised that he still held on, even after the concession, to his criticism of the course taken by the learned trial judge in this connection. We can see no substance in this ground of appeal and it must fail.
It was then argued with respect to the third ground of appeal that the judgment was against the weight of evidence. Learned counsel for the defendants complained that the defendants did give evidence of their possession of the lands immediately to the east of the “King boundary” from time immemorial and that the learned trial judge should have believed them. The argument clearly misconceives the ground of appeal. It was not contended before us that there was no evidence which, if accepted, would support the findings of the learned trial judge or the inference which he had made. That simply is what such a ground of appeal postulates and in order to upset a judgment on the grounds that credence had been wrongly given to the evidence of a witness an appellant must do more than show that his evidence was as possible as the evidence of a rival. In this case it is obvious that the defendants one after the other had come into the witness box simply to deny knowledge of the actual course of the “King boundary.” Their plan, exhibit 12, is hopelessly useless for it shows no delineations or survey marks and is completely unreliable for the purpose of proving any boundary as between the parties. On the evidence given before him by the defendants, the learned trial judge commented, not without justification, as follows:-
“The defence evidence is worthless, since all the defendants say that they do not know where the boundary fixed by the District Officer lies! I entirely disbelieve them. They know perfectly well, but it does not suit them-they refuse to accept the decision as it is against them.”
We are ourselves in no doubt that the findings of the learned trial judge are abundantly justified by the oral and the documentary evidence before him and which in our view he had rightly accepted. The evidence of the defendants is patently unrelated to the subject-matter and unreliable in the extreme and we would have been surprised if the judge had accepted it. He rejected their evidence and accepted that of the plaintiffs as the more probable story and we think that his findings are fully supported by that evidence. This ground of appeal must also and does fail.
But learned counsel for the defendants further argued in respect of the second ground of appeal that the learned trial judge was wrong to enter judgment against the defendants as well, as he did, in the representative capacity in which they had been sued. It was argued on behalf of the defendants that as no representation order for the defendants to defend on behalf of their people of Amodu Akagbe had been sought or obtained, the judgment should have been against the defendants personally. Concerning the ambit of his judgment and especially with regard to the defendants’ people of Amodu Akagbe, the learned trial judge observed in his judgment as follows:-
“The defendants took the attitude that they do not represent their village and are only sued as individuals. They were clearly sued-both in the writ and the statement of claim-‘for themselves and as representatives of Amodu Akagbe people.’ They have never applied to have that struck out. Their suggestion that their village does not know of this suit is fantastic nonsense. Of course the whole village knows. The four plaintiffs who sued on behalf of the village in 84/46 are all among the defendants in this suit! The plaintiffs could not sue every man, woman and child in the defendants’ village. They have sued 12 men as representatives. There must be no question about it. This judgment binds the whole people of Amodu Akagbe.”
For the submission that the judgment must be binding only on the defendants named on the writ, learned counsel for the defendants relied on the decision of the West African Court of Appeal in Adegbite and ars. v. Chief Imam Lawai and ars. (1948) 12 W.A.C.A. 398 where at p. 399 the following statement of the law appears:-
“it will be observed that, under the English rule, the authority to defend in a representative capacity proceeds from the court and it has been held that application to the court to grant such authority may be made by either side. But under the Nigeria rule, while the approval of the court is required, the authorisation is to be given by the other persons interested to sue or defend. This, in our view, means that the authority for a person to sue on behalf of others must be given by the other persons interested in suing, and the authority for a person to defend on behalf of others must be given by the persons interested in defending.
Applying this principle to the present case we are reluctantly driven to the conclusion that the application for the first five defendants to defend on behalf of their fellow seceders should have proceeded from them and that the order of 6th October, 1947, was consequently invalid. It follows from this that the judgment of the court against the defendants in so far as it relates to their representative capacity cannot stand, so it is unnecessary to discuss the numerous cases cited by counsel on the interesting question whether a representative action lies in tort.”
On the other hand, learned counsel for the plaintiffs contends that the judgment of the learned trial judge insofar as it is expressed to bind not only the defendant on the writ but all the people of Amodu Akagbe, is right, and that the learned trial judge was entitled so to order. Learned counsel for the plaintiffs also submitted that it was for the defendants to seek and/or obtain the necessary representation order if they wished as on the wording of the relevant rule it was not possible for the plaintiffs to ask for that order on their behalf. Finally, learned counsel for the plaintiffs submitted that it is not for the defendants to appeal against the ambit or scope of the order of the learned trial judge but for those who were thereby affected and were dissatisfied with that order to seek the remedies provided for and made available to them by section 117(6) of the Constitution of Nigeria.
It is easy to see the weakness of the argument for the defendants. In Adegbite v. Lawal, supra, the point about representation was taken in limine and reliance was placed on the wording of the relevant rule of court. In the case in hand, learned counsel for the defendants relied as well on the wording of Order IV, rule 3 of the Eastern Nigeria High Court Rules (applicable in the East-Central State). Incidentally, that rule is identical in phraseology with the rule relied upon in the case of Adegbite v. Lawal, supra. Order IV, rule 3 of the Eastern Nigeria High Court Rules reads as follows:-
“3. 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.”
Thus, the rule provides for the defendants named on a writ to be authorised by the other persons whom they are supposed to represent so to represent them with the approval of the court. It is obvious that the plaintiffs can do but little or nothing where the defendants, as in the present case, have refused or failed to seek the authority of the other persons whom they are supposed to represent. In the course of his evidence in this case, one of the defendants, i.e. the first defendant, did state that nobody could compel him to ask for a representation order. It is clear on a perusal of the evidence of all the defendants that they all took the same view.
Undoubtedly, the order which the learned trial judge had made, that is the order of injunction, was expressed to be binding on all the people of Amodu Akagbe. Although there was evidence from some of the defendants that some of their people knew about the case it cannot be disputed that by and large they all said that they were not aware of the case. Section 117(6) of the Constitution of Nigeria provides as follows:-
“(6) Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section:-
(a) shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the High Court or the Supreme Court at the instance of any other person having an interest in the matter and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of section 104 of this Constitution and any powers conferred by the constitution of a region to take over and continue or to discontinue such proceedings, at the instance of such other persons or authorities as may be prescribed by any law in force in the territory …. ”
The relevance of section 117(6)(a) of the Constitution lies in the right which it gives to “any other person having an interest in the matter” to exercise a right of appeal against that judgment. Surely, as contended by learned counsel for the plaintiffs, if the other people of Amodu Akagbe who are not named defendants to this action are dissatisfied with the order of the learned trial judge, they have a right to appeal by virtue of the provisions of section 117(6)(a) of our Constitution, which they can exercise, against that judgment which is expressed to bind them. In Ubagu and ors. v. Chief Okachi and ors. [1964] 1 All N.L.R. 36, a similar point arose and this Court decided that it would not interfere with an order made against all the people of a community in proceedings to which only some of them had been named as defendants since the other members of that community if aggrieved by the decision could and should come to this Court in virtue of the provisions of section 117(6)(a) of the Constitution.
The contention of learned counsel for the defendants has compelled us to look at the decision in Adegbite v. Lawal, supra, more closely. As stated before, in that case the objection to representation was taken as a preliminary objection before the hearing started. The learned trial judge, as decided by the West African Court of Appeal in that case, wrongly overruled the objection of the defendants that the plaintiffs could not take out an application for the defendants to represent their class or community. The West African Court of Appeal pointed out that on the wording of the rule which is in pari materia with Order IV, rule 3 of the relevant High Court Rules in this case, it is only the defendants named on the writ who could seek the authorisation of the other members of their community so to defend them.
In the case in hand, it is true that the defendants stated in their statement of defence that they were not representing their people of Amodu Akagbe but certainly they had fought the case throughout on the basis that the land concerned was the land of the people of Amodu Akagbe some of whom they were and that the boundary which is the crux of the case is the boundary between their two peoples of Agbani and Amodu Akagbe. Order IV, Rule 3 of the High Court Rules does not provide that the defendants sued must obtain authorisation to represent their people. What it says is that they “may, with the approval of the court, be authorised by the other persons … to defend … for the benefit of or on behalf of all persons so interested.”
This clearly means that at all times the matter rests with the court with respect to the ambit of the order which it proposes to make. It is absolutely impossible to sue every man, woman and child of a large community and where it is intended to institute legal proceedings against them it is impossible to do otherwise than to name some of them as defendants to the action. If those named care to do so, they may ask for a representation order.
If they do not, the court is entitled to give judgment according to the evidence and the nature of the case. If there are parties aggrieved as being caught within the case when they were not by name made parties thereto, they have a right of appeal under our Constitution and we think it is right to argue that it is not open to a defendant named on a writ to complain as is being done in this case that other persons apart from himself have been included in the scope of the judgment. We are therefore unable to accept the contention of learned counsel for the defendants that the judge was wrong in law to extend the scope of the order of injunction against the entire people of Amodu Akagbe who have not been specifically made defendants by name to this action.
Before concluding this judgment, we wish to observe that we think the learned trial judge had before him ample evidence to justify the course which he had taken. With respect to the conduct of the defendants, he had cause to observe in his judgment as follows:-
“I have shown the utmost indulgence to the defendants. They have been defying the orders of courts of law for many years. The time has come to put an end to this. They must now come to their senses. Either they acknowledge the plaintiffs’ title and obtain the plaintiffs’ consent to remain or they vacate the land on the plaintiffs’ side of the boundary. ”
We think ourselves that if the entire people of Amodu Akagbe are not included within the scope of the injunction made in this case, their characteristic defiance of orders of court would continue and another set of their people would emerge and do exactly what the learned trial judge feared would happen. We think this will be an unfortunate situation and in the circumstances affirm the order of injunction exactly in the way it was made by the learned trial judge.
In the result all the grounds of appeal canvassed on behalf of the defendants fail and the appeal fails. It is dismissed and they will pay to the respondents the costs of this appeal fixed at 90 guineas.
SC.719/1966
