Walter Wiri & Ors V Godwin Wuche & Ors (1980)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C.

 This is an appeal from the judgment of Ikpeazu, J., given on the 22nd day of November, 1971, by which he decided in favour of the respondents on their claims of title to land, damages for trespass and perpetual injunction.  

The basis of the appeal before us is that the appellants contend that it was not open to the learned trial Judge to entertain the suit there being patent lack of jurisdiction in the High Court of East Central State to sit in judgment over claims in respect of land lying and situate in the Rivers State. It is also contended that the learned Judge erred in law in giving judgment to the respondents for themselves and on behalf of the people of Umuagbai when:

“(a) the plaintiffs (i.e the respondents) were never granted leave to sue in a representative capacity;
(b)  the evidence presented on the record in support of an application for an order for leave to sue in a representative capacity (which was never made) was that the two plaintiffs had been authorized by only two members of Umuagbai Community to sue on behalf of the community;
(c)  the plaintiffs (i.e. the respondents) were not authorized by the members of the said Umuagbai, Ndoki to sue on their behalf.”

The action out of which this appeal arises is, as expressed on the particulars of claim attached to the writ of summons, between the respondents “for themselves and on behalf of Umuagbai – Ndoki – Ukwe in Aba Division” on the one part, and the appellants “for themselves and on behalf of the Ogoni, Okwale in Ogoni Division.” Although the appellants claim in their Statement of Defence that “the land in dispute is situate in Ogoni Division within the Port-Harcourt Judicial Division,” they admit paragraph (1) of the Statement of Claim which avers that the respondents are “the chiefs, elders and natives of Umuagbai in Ndoki within Aba Division and sue for themselves and as representing the people of Umuagbai……………..”. In order, however, to appreciate the questions of law on which this appeal will turn, it is in my view, necessary to give a brief account of the facts which gave rise to it.

In 1932, the parties to these proceedings, that is the people of Umuagbai and the people of Okwali through their accredited representatives submitted to arbitration the dispute which had arisen between them over the ownership of the land in dispute (see Exhibit “D” in these proceedings).  The arbitrators – Edward James Gleson Kelly, then District Officer, Aba Division and Walter Jesse Wharton Cheesman, then Acting District Officer, Opobo Division – after inspecting the land in dispute which, on their own express finding (as stated in the award), included the village of Umuagbai, fixed a boundary on this land for the parties. Both sides respected the boundary until 1954 when, as was alleged by the appellants, following a violation of the boundary line by the respondents the former brought an action against the latter for declaration of title, arrears of yearly tribute, damages for trespass and injunction originally in the Kana Clan Court Tabangh (Ogoni); the action was later transferred to the Port-Harcourt Judicial Division of the then Supreme Court of Nigeria (as Suit P/44/54) – (see Exhibit ‘C” in these proceeding). Dove-Edwin, J., who finally heard and inquired into the land in dispute, dismissed the same. Not satisfied with this decision, the appellants violated the boundary line in 1959 and their persistence in that course of conduct led to the commencement of these proceedings by the respondents in November 1960, in the Aba Judicial Division of the then High Court of the Eastern Region of Nigeria. Although the appellants in their Statement of Defence described the proceedings in the Exhibit “C” as “irrelevant to the present action”, the learned trial Judge was satisfied that Exhibit “C” relates to the land in dispute in these proceedings. He was also unable to accede to the appellants’ contention before him that both the arbitration proceedings and the award (Exhibit “D”) – which he was satisfied relate to the land now in dispute – are a nullity  “for want of compliance with the Arbitration Ordinance.”

The record of the appeal before us is, indeed, somewhat deficient of the history of the course of the proceedings in the High Court of Eastern Nigeria prior to the creation of the Rivers and the East Central States of Nigeria.  The only contents of the record which relate to events in that court prior to the continuation and conclusion of the proceedings in the High Court of East Central State are the reproduction of:
(1)    the particulars of claim and the writ of summons;
(2)    Motion Ex parte for leave to sue in a representative capacity fixed for hearing on 6th December, 1960; and
(3)    the affidavit in support of the prayer in the motion aforesaid; and
(4)    uncompleted endorsement of what may have been proceedings before Hughes, J., on the 20th day of December, 1960 in  which there appear the following notes: “Plan and pleadings ordered 90/90 days (vide Vol.25/213 – Record Book lost  during the civil war.”

There is no signature of the judge or the maker of the said endorsement at the end of what appears on its face to be the proceedings of the 20th December, 1960.

Having recounted briefly the facts so far as they are relevant to the questions for decision in this appeal, I will now proceed to consider the contentions and submissions thereon of learned counsel for the appellants. The second contention relates to the alleged want of order of the court for the respondents to prosecute these proceedings on behalf of the Umuagbai community. I think, the argument of the appellants on this issue can be put in this way. The record of proceedings shows that the prayer contained  in the motion (dated the 25th August, 1960) for leave to sue in a representative capacity is supported by one affidavit dated the 25th day October, 1960.  

The motion was fixed for hearing on 6th December, 1960. The contents of the affidavit itself were deposed to by  Godwin Wuche and Jonah Wulu (the 1st and 2nd plaintiffs) who describe themselves therein as “the eldest men in Umuagbai Village, Ndoki in Aba Division: and stated also therein that they “have authorized the plaintiffs to bring this action on their own behalf.”  

There is no affidavit or other evidence to the effect that the plaintiffs themselves (Godwin Wuche and Jonah Wulu inclusive) were authorized by the Umuagbai community to bring the suit on their behalf; there is need for some member or members of this community to so depose. Since there was no such affidavit an order for the plaintiffs, (i.e. respondents), to sue in a representative capacity ought not to have been made; and if any such order was made it must be regarded as null and void.  We were then first referred to the provisions of Order IV rule 3 of the High Court Rules, Cap.61 of the 1963 Edition of the Laws of Eastern Nigeria applicable in these proceedings, and the interpretation given to this rule by Aniagolu, J., (as he then was), in Oguchi Onea and Ors v. Nweke Egbuchi and Ors (1970/1971 ECSLR. 80. Learned counsel for the appellants contend that there is no evidence that any order of court authorizing respondents to sue in a representative capacity was ever made. The endorsements of the 20th December, 1960, as they appear in the record of proceedings in this appeal, learned counsel further contends, confirm that no such order was made; and in any event contradicts the evidence or testimony of Israel Okere Wuche who, as plaintiffs’ first witness, told the court of trial on 21st October, 1971, that the respondents obtained the authorization of the court to bring these proceedings for themselves and on behalf of the Umuagbai community on the 6th day of December, 1960. I pause to observe that there is nothing on the record in these proceedings of events, if any, which took place in the court between the 6th and 20th December, 1960, beyond the endorsements which (1) indicate that an order for plan and pleadings to be filed by parties within 90 days was made on 20th December (although the record does not tell us which particular judge it was who made the order); and (2) that the Record Book Vol.25 from folio 213 was lost during the civil war.  It may be that this particular record contains the missing portions of the history of these proceedings (such as further affidavits relating to the motion for leave to sue in a representative capacity and the order, if any, thereon).  However, any attempt at speculation is manifestly improper.

There is no doubt that the authority for plaintiff to sue on behalf of a community must come from that community and that the order for leave to prosecute on behalf of a community under the rules of the High Court of Eastern Nigeria must come from the court (and, here, we are in agreement with the decision in Oguchi v. Egbuchi (supra) (see also the decision of the High Court Eastern Region in  Nsima v. Ole Nnaji & Ors (1961) 1 All NLR 441); otherwise the plaintiffs must be regarded as prosecuting such proceedings in their personal capacity (see also Adegbite & Ors v. Lawal & Ors (1948) 12 WACA 398).

The position in the case in hand is that the appellants have, by paragraph (1) of their Statement of Defence admitted paragraph (1) of the respondents Statement of Claim which reads:-

“(1)  The plaintiffs are the chiefs, elders and natives of Umuagbai in Ndoki within Aba Division and sue for themselves and as representing the people of Umuagbai. The defendants are natives of Okwali in Ogoni Division and are sued for themselves and as representing the people of Okwali.”  (Underlining supplied)

Again, the evidence of the first witness for the respondents which the learned trial Judge accepted is as follows:-

“We brought this action on behalf of Umuagbai Community.  We were duly authorized by our people to institute this action on their behalf and we had approval of court on 6/12/60.”

I pause again to mention that the evidence quoted above was not denied in the testimony of any of the respondents or their witnesses.  Further, the position here is that from the beginning and throughout the suit the respondents claim that they were prosecuting the case on behalf of their community; they testified on oath that the court authorized them to do so. The law on this matter is this: (1) if the defendants (appellants) desire to question the authority of the plaintiffs (respondents) to sue on behalf of (i.e. in the name of ) the Umuagbai community it is not open for the defendants to raise the objection by way of defence but they should (a), at an early stage of the proceedings, move the court to strike out the name of the community as plaintiffs (see Russian Commercial & Industrial Bank v. Comptoir D’Escompte De Mulhouse (1925) AC 112  for a comparative situation) or (b), by counter-affidavit filed at the time of the hearing of the application for order of court for leave to sue in a representative capacity endeavour to prevent the order from being made; and (2) although the court may have granted leave for the plaintiffs (respondents) to prosecute their claim in a representative capacity it is still open to the court, at the end of the trial after a review of the evidence, to find as a fact that respondents were not authorized to prosecute for the community.  In this case not only did the learned trial Judge accept the testimony of Israel Wuche – of whom he said,

“I admire the P.W.(1) Israel Wuche whose evidence I accept as true………………..”

– that the respondents were granted leave to prosecute this case on behalf of the Umuagbai community on 6/12/60, he was in fact satisfied at the end of the trial on the evidence before him that they were authorized by that community to bring these proceedings on their behalf.  Learned counsel for the appellants sought to turn the endorsements relating to the 20th December, 1960, in favour of his argument that the court never granted the respondents leave to prosecute this claim in a representative capacity; if the order was made on 6th December, 1960, he contended, then the record of proceedings of 20th December, 1960, should have reflected that fact.  I am unable to accept that contention in the face of the endorsement that a Record Book which obviously bears relation to the proceedings in hand was lost during the civil war and the evidence on the issue in the lower court. In the circumstances, I am satisfied that on the evidence before him Ikpeazu, J., quite rightly found that the respondents prosecuted the claim on behalf of their people of Umuagbai.  This ground of appeal therefore, fails.

The other ground of appeal relate to the issue of jurisdiction.  The Aba Judicial Division of the High Court of East Central State has no jurisdiction – so it is contended on behalf of the appellants – to inquire into claims in respect of land in the Rivers State.  Now, (1) there is evidence before the court that the land in dispute “includes the site of the village of  Umuagbai in the Aba (Administrative) Division” [see Exhibit “C: – the transfer order therein and the award and findings in the Arbitration Proceedings Exhibit “D”); (2) by virtue of Order VII rule (1) of the High Court Rules of Eastern Nigeria Cap.61 of the 1963 Edition of the Laws of Eastern Nigeria (applicable in East Central State at the commencement of these proceedings) “all suits relating to land……………….shall be commenced and determined in the judicial division in which the land is situated……………….”, and the evidence here is that the village of Umuagbai which is the land in dispute is within Aba Judicial Division. It seems to me, therefore, that the claim could be entertained by the High Court of East Central State.  This ground of appeal, therefore, fails. Parties (i.e. appellants and respondents) agree that these proceedings were  properly commenced in the High Court of Eastern Region. Appellants however contend that with the creation of the Rivers State before the conclusion of these proceedings the High Court of East Central State no longer had the necessary jurisdiction to hear or continue hearing in the suit.  This contention would, in view of Section (3) of States (Creation and Transitional Provisions) Decree No 14 of 1967 have failed; however, in view of the fact that that section was repealed by Section 2(c) of the Constitution (Miscellaneous Provisions) Decree No.20 of 1967, any further discussions on this point will, in my view, amount to an entirely academic exercise.
The two grounds of appeal filed and argued before us having failed I am satisfied that this appeal ought to be dismissed and it is accordingly dismissed with costs in favour of the respondents.

A. G. IRIKEFE, J.S.C.: In the High Court of the former Eastern Region of Nigeria, and in the Aba Judicial Division thereof, the appellants herein were sued by the respondents in a claim framed as follows:-

“(a)  Declaration of title to the Umuagbai land known as “NKIKARA MKPURU AND MKPITI-OBU’ extending to “UZO AZUOGU”.
(b)   600 guinea Damages for trespass.
(c)   Injunction restraining the defendants,their agents and servants from further acts of trespass.”

Although the writ contains evidence that it was filed on 1st November, 1960, the case itself had a chequered history, the facts of which are faithfully recorded in the judgment of my learned brother, Idigbe, JSC., which I had had the privilege of reading, and with whose views on the law, in so far as they relate to this case, I am in total agreement.

Judgment in this matter was delivered on 22nd November, 1971 by Ikpeazu, J., in the Aba Judicial Division of the High Court of the East Central State of Nigeria. The learned Judge, inter-alia, found as follows:-

“I am satisfied on the evidence that the plaintiffs have been on the land time out of memory and have put it into diverse use and have proved that they are owners thereof.  The defendants admit acts of trespass when they say that they farm on the land in dispute or portions thereof and will continue to do so except restrained.  I uphold the plaintiffs’ claim and grant them title to that land in dispute delineated and verged pink on plan No. JJ.3/61 made by J. Theophilus John, Licensed Surveyor and admitted and marked Exhibit “A” in this case. I award the sum of 100 guineas to the plaintiffs as damages for trespass and order a perpetual injunction to restrain the defendants, their agents or servants from further acts of trespass to the land. The plaintiffs will have the costs of this action which is measured at 100 guineas.”

This appeal is against the above finding and Mr. Ajayi, SAN, for the appellants rested his case on two grounds of appeal which read as follows:

“(A) Error in Law

The learned trial Judge erred in law in giving judgment in favour of the plaintiffs/respondents herein when he had no jurisdiction to hear the said suit.

PARTICULARS;
(i)     The land in dispute is situated in the Ogoni Division of the Rivers State;
(ii)    The High Court of the Aba Judicial Division of the East Central State had no jurisdiction to continue to hear the said suit after the creation of Rivers State by the States (Creation and Transitional Provisions) Decree No. 14 of 1967 as amended by the States (Creation and Transitional Provisions) (Amendment)  Decree No. 19 of 1967 and the Constitution (Miscellaneous Provisions) Decree 1967.
(iii)   The learned trial Judge purported to exercise the powers and jurisdiction of the Aba Judicial Division of the High Court of East Central State within the area of the Rivers State.

(B)   Error in Law

The learned trial Judge erred in law in giving judgment to the plaintiffs for themselves and as representing the people of UMUAGBAI when:
(i)     The plaintiffs were never granted leave to sue in a representative capacity;
(ii)    The evidence presented on the record in support of an application for an order for leave to sue in a representative capacity (which order was never made ) was that the two plaintiffs had been authorized by only two members of the UMUAGBAI COMMUNITY to sue on behalf of the community.
(iii)   The plaintiffs were not authorized by the members of the said UMUAGBAI, NDOKI  to sue on their behalf.”

Learned counsel representing the appellants dealt with the issue of representation first.  He argued by reference to Order 4 Rule 3 of the High Court Rules of Eastern Nigeria (Cap 61)  that the order or representation made by the learned trial Judge was defective in the sense that it was based on inadequate evidence.  The said rule reads:-

“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 authorized 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.”

Counsel submitted further that the authority to sue must be given by all the parties interested in the suit, which was not the case here, and that in any case, there was nothing in the affidavit of the two deponents who claim to represent the others showing that they have any interest in the land the subject of this action.
For ease of reference the said affidavit reads as follows:-

“We, Godwin Wuche and Jonah Wulu, farmers and Nigerian protected persons residing at Umuagbai-Ndoki, Aba Division make oath and declare as follows:-
(1)    That we are the eldest men in Umuagbai village, Ndoki in Aba Division.
(2)    That we have authorized the plaintiffs to bring this action on their own and on behalf of the entire members of the village Umuagbai against defendants representing the village of Okwale, Ogoni Division.

(3)    That the action is for:-
(a)    Declaration of Title to Umuagbai land known and called “NIKIKARA MKPURU AND MKPITI OBU” extending to “UZO AZUOGU”.
(b)    ‘600 guineas damages for trespass.
(c)    Injunction.

(4)    That we swear to this affidavit with the authority and on behalf  of the entire plaintiffs.”

If, as the above record shows, the two deponents are themselves parties to the action, and they claim also to have the authority and consent of the others within the community to depose to the facts contained in the affidavit, it would be extremely difficult to persuade me that it had not been shown that they have any interest in this suit.  The above, notwithstanding, it is trite law that issues are tried as settled in the pleadings filed.

Paragraph (1) of the plaintiffs/respondents Statement of Claim reads:-

“The plaintiffs are the chiefs, elders and natives of UMUAGBAI in NDOKI within Aba Division and sue for themselves and as representing the people of UMUAGBAI. The defendants are natives of OKWALI in OGONI DIVISION and are sued for themselves and as representing the people of OKWALI.”

The above averment was admitted in its entirety by the defendants/appellants at paragraph 1 of their Statement of Defence as follows:-

“1  – The defendants admit paragraph 1 of the Statement of Claim.”

The above admission, in my view, spells out in clear and unequivocal terms not only the capacity in which the plaintiffs were prosecuting the action but also that in which the defendants contested it.  That being the case, no further proof of the said averment was called for.  Order 33 Rule 12 of the High Court Rules of Eastern Nigeria  has this type of situation within its contemplation.  It reads:

“The defence shall admit such material allegations in the Statement of Claim as the defendant knows to be true, or desires to be taken as admitted, and such allegations may be taken as established without proof thereof.”
(Underlining mine)
At the actual hearing, P. W. 1, Israel Okoro Wuche, testified inter alia as follows:-

“We brought this action on behalf of Umuagbai Community.  We were duly authorized by our people to institute this action on their behalf and we had approval of court on 6/12/60. We sued the defendants for themselves and as representing their people of OKWALI.”

The above testimony was not challenged by the appellants under cross-examination and learned counsel representing them did not deal with this issue in his address. The learned trial Judge, quite rightly in my view, in writing his judgment, dealt with the above testimony of P.W.1 (Israel Wuche) and accepted same as true. Thus assuming that the question of representation or capacity was a serious issue before the court of trial (which it was not) the appellants would still have found no solace in the present attitude of this court on this subject as may be gleaned from its decision in Nta & Ors. v. Anigbo & Ors. – (1972) 1 All NLR (Pt. 2) page 74 at page 84 – where Coker, JSC., had this to say:-

“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 authorized 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 the 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.”

It does not appear to me from the foregoing that the propriety or otherwise of a representation order once made is a matter that can now be challenged by the appellants, who, in any event, are strangers to the community in favour of whom the order was made.  This ground of appeal fails.

In arguing his second ground, learned counsel representing the appellants was prepared to concede that at its inception in 1960, this matter was properly pending before the Aba Judicial Division.His argument, as I understand it, is that after the creation of the Rivers State in 1967, the court that tried this matter no longer had jurisdiction to do so, because the defendants to the action are described on the writ as being of Okwale in Ogoni Division. This argument seems to overlook the reality of the case.  As the defendants now appellants did not cross-claim for title but were content to defend the action filed by the plaintiffs/respondents, the court of trial was bound to examine the case from the viewpoint of the latter, bearing in mind the matter on which issues were joined in the pleadings.

The respondents in paragraph 2 of their Statement of Claim aver as follows:-

“The land, the subject matter of the action which is to be hereinafter referred to as land in dispute is known as UMUAGBAI and is situate in NDOKI in Aba Division and is bounded as follows:-

These boundaries are clearly shown on the plan No. JJ 3/61, filed with the Statement of Claim and showing the land in dispute as verged pink.”
In paragraph 2 of the Statement of Defence, the above averment was traversed as follows:-

“The defendants deny paragraph 2 of the Statement of Claim and say in answer thereto that the land in dispute is known as and called in part “Wii Baraga” (otherwise spelt “BALAGA”) and in part “KPUTE” and is situate in OGONI DIVISION  within Port-Harcourt Judicial Division. The land in dispute is clearly shown on PLAN CS/298/61 filed with this Statement of Claim and thereon verged in yellow  within a larger area of land belonging to the defendants and shown verged in pink on the aforesaid plan. The boundaries of the land in dispute are clearly shown on the aforesaid plan.”

The fact that the appellants allege that the land in dispute is situate in the Port-Harcourt Judicial Division cannot, in my view, operate to deprive the High Court of the Aba Judicial Division of its jurisdiction to adjudicate on the matter, as the respondents also allege that the land in dispute falls within the area of the latter’s jurisdiction.  Moreover, the case of the respondents which was accepted by the court of trial, was that there had been a prior boundary arbitration between the parties and that the cause of this action was that there had been an encroachment by the appellants beyond the boundary settled, consequent upon the arbitration aforesaid, and that the appellants had threatened to persist in the said encroachment.

Order VII Rule 1 of the High Court Rules of Eastern Nigeria (1963)  which was operative during the life of these proceedings in the court of first instance provides as follows:-

“All suits relating to land, or any mortgage or charge thereon, or any other interest therein, or for any injuries thereto, and also all actions relating to personal property distrained or seized for any cause shall be commenced and determined in the judicial division in which the land is situated, or the distress or seizure took place.”

As the respondents were prima facie, the aggrieved parties, it would have been strange indeed for them to have commenced and prosecuted these proceedings other than in the judicial division where they did.

Also, given the issues joined in the pleadings, the court of trial had a clear duty to pronounce, among other matters, on where the land was, and as the judgment reveals, it did so in as clear a manner as can be.  It is also significant that even after the Rivers State was created, the appellant (if their present complaint is to be taken seriously) who ought to know where the land, the subject of this contest was, lamely acquiesced in the proceedings being continued before Ikpeazu, J. I would myself need strong evidence than had been placed before us by the appellants counsel to succumb to the view that the Aba Judicial Division lacked jurisdiction in this matter.  Such a situation might have been achieved by the production of an authentic survey map clearly showing that the land in dispute is in the RIVERS STATE and not in Imo State. This ground of appeal also fails.

As we saw no merit in this appeal, we did not consider it necessary to call upon Mr. Obianwu, learned counsel appearing for the respondents.

I would accordingly dismiss this appeal and affirm in its entirety the decision of Ikpeazu, J., in this matter dated 22nd November, 1971. Costs of N300 are awarded against the appellants in favour of the respondents.

A. O. OBASEKI, J.S.C.: The notice of appeal in this matter was filed on the 18th day of December, 1971, by the defendants in the cause against the judgment of Chuba Ikpeazu, J., delivered on the 22nd day of November, 1971 in the claims in Suit No. A/125/66 instituted by the plaintiffs on the 1st day of November, 1960 in the High Court, Aba.
In that suit, the plaintiffs’ particulars of claim as endorsed on the plaintiffs’ writ of summons read:

Particulars of Claim
“The plaintiffs’ claim from the defendants jointly and severally is for
(a)   Declaration of title to the Umuagbai land known as “Nkikara Mkpuru and Mkpiti-Obu” extending Uzo Azuogu”
(b) 600 guineas damages for trespass
(c)   Injunction restraining the defendants, their agents and servants from further acts of trespass.”

Pleadings were ordered and duly delivered. In fact,the Statement of Claim was filed on the 22nd day of March, 1961 while the Statement of Defence was filed on 12th March, 1962.
But trial of the issues raised in the pleadings could not commence till the 24th day of August, 1971.  The intervention of the national crisis and the civil war of 1967 to 1970 was the principal cause of the delay in the trial of the case.  Indeed, it is on record that some of the relevant court records were lost in the war and counsel had to recompile their briefs before the proceedings in court could recommence in earnest.  Four witnesses testified at the instance of the plaintiffs while three witnesses testified at the instance of the defendants.

Hearing in the matter was concluded on the 22nd day of October, 1971, and a month later, i.e. 22nd day of November, 1971, judgment was delivered in favour of the plaintiffs, the concluding portion of the judgment being as follows:
“I am satisfied on the evidence that the plaintiffs have been on the land time out of memory and have put it into diverse use and have proved that they are owners thereof.The defendants admit acts of trespass when they say that they farm the land in dispute or portions thereof and will continue to do so except restrained. I uphold the plaintiffs’ claim and grant them title to that land in dispute delineated and verged “pink” on plan No. JJ3/61 made by J. Theophilus John, Licensed Surveyor and admitted and marked Exhibit A in this case. I award the sum of 100 guineas to the plaintiffs as damages for trespass and order a perpetual injunction to restrain the defendants, their agents or servants from further acts of trespass to the land.  The plaintiffs will have the costs of this action which is measured at 100 guineas.”

Against this decision, the defendants have brought this appeal.
The only grounds argued were the 3 grounds filed with the leave of this court as additional grounds and they read as follows;-

“(1)  Error in Law
The learned trial Judge erred in law in giving judgment in favour of the plaintiffs/respondents herein when he had no jurisdiction to hear the said suit.

Particulars
(i)   The  land in dispute is situated in Ogoni Division of the Rivers State .
(ii)  The High Court of Aba Judicial Division of the East Central State had no jurisdiction to continue to hear the said suit after the creation of the Rivers State by the States (Creation and Transitional Provisions) (Amendment) Decree No. 19 of 1967 and the Constitution (Miscellaneous Provisions) Decree, 1977.
(iii) The learned trial Judge purported to exercise the powers and jurisdiction of the Aba Judicial Division of the High Court of East Central State within the area of the Rivers State.

(2) Error in Law
The learned trial Judge erred in law in giving judgment to the plaintiffs for themselves and as representing the people of Umuagbai when
(i) The plaintiffs were never granted leave to sue in a representative capacity.
(ii) The evidence presented on the record in support of an application for an order for leave to sue in a representative capacity was that the two plaintiffs had been authorized only by two members of the Umuagbai community to sue on behalf of the community.
(3)The learned trial Judge failed to direct his mind to the issue raised on the pleadings as to the location of the land in dispute and therefore to the question of jurisdiction to hear the case.”

This appeal therefore raises the issue of (1) the competence of the High Court of East Central State to hear and adjudicate on the matter and (2) the competence of the plaintiffs to prosecute the cause or matter on behalf of the people of Umuagbai, Ndoki-Ukwa Aba Division without authorization of the people they purported to represent and indeed also without the approval of the court.
The antecedent facts in this case together with these two issues and submissions on them have been fully stated, dealt with and disposed of in the judgment of my learned brother the Hon. Justice Idigbe, JSC., delivered a short while ago which I have had the privilege of reading and with which I hereby express full concurrence but at the same time taking the liberty of making these few additional observations.

It does appear that the Decrees i.e. States (Creation and Transitional Provisions) Decree 1967 No.14; States (Creation and Transitional Provisions) (Amendment) Decree 1967 No.19 and Constitutional (Miscellaneous Provisions) Decree 1967 No.20 cited and relied on by counsel for the appellants in support of his objection to the jurisdiction of the Aba High Court were misread, misinterpreted and misunderstood for if there is anything that Decree No. 19 of 1967 did, it was to preserve the jurisdiction of the High Court of Central Eastern State, Aba Judicial Division referred to as Aba High Court in these proceedings by describing Central Eastern State to include Aba Division.

I will in particular, by ways of emphasis, draw attention to the provision of Section 1(a) of  Decree No. 19 of 1967 i.e. States (Creation and Transitional Provisions (Amendment) Decree 1967 and paragraph (j)  of the schedule thereto. They read as follows:
Section 1
“For the avoidance of any doubt
(a)    There shall be substituted for the schedule of the States (Creation and Transitional Provisions) Decree 1967 the Schedule hereunder and where references are made therein to divisions they shall be read and construed as references to administrative divisions of Nigeria in the Report of the Constituency Delimitation Commission 1964.” (Underlining mine)
Paragraph (j) of the Schedule reads:
“(j)   Central Eastern: Aba, Abakaliki, Afikpo, Agwu, Awka, Bende, Nsukka, Okigwi, Onitsha, Orlu, Owerri, and Udi Divisions.”  (Underlining mine)
Paragraph 2 of the Statement of Claim filed by the plaintiffs in these proceedings clearly pleads the geographical location of the land in dispute known as Umuagbai and fixes it in Ndoki in Aba Division.
I will also refer to paragraphs 1 and 2 of the grounds of transfer in the Transfer Order made by P. L. Wood, District Officer, Ogoni Division transferring the action initiated by Chief Walter Wiri against Chief E. L. Nwakwo Nwanukpe in the Northern Kana Clan Court, Tabangh (Ogoni) Suit No. 49/53 to the Supreme Court of Port-Harcourt Judicial Division. The suit became known as Suit No. P/44/54.  See Exhibit C.

The particulars of claim included:
(1)     Declaration of title of ownership of the parcel of land known as Wiibaragan alias Umuagbai residing by defendants and others.
(2)    An injunction of court to restrain the defendant servants and agents from the said land forthwith or pay 100 pounds lease annually,

The 1st and 2nd grounds for transfer read:
“(1)  The land in dispute is of very considerable area and includes the site of the village of Umuagbai which lies in the Aba Division.
(2)    The land in dispute was the subject of arbitration during 1932 and 1933 under a submission to arbitration when Mr. E. J. C. Kelly, District Officer Aba and Mr. W. J. W. Cheesman, Ag. District Officer, Opobo were the arbitrators and fixed a boundary.”

Part of the arbitrators’ findings reproduced in Exhibit C reads:
“The land in dispute covers a whole land lying between Okwale village and the Imo River including the site of the village of Umuagbai……

The people of Umuagbai belong to the Ndoki Clan of the Ibo tribe while the people of Okwale belong to the Ogoni tribe. The land in dispute lies on the south side of the Imo River. The village of Umuagai is situate on the right bank of the river, which forms their boundary to the North so that they have no land which is not included in the dispute.”

After the case was transferred to the Supreme Court, Chief Walter Wiri, and others now appellants herein, filed their pleadings. Therein in paragraph 1 of their Statement of Claim in suit No. P/44/1954 (see Exhibit C) they averred as follows:

“The plaintiffs are natives of Okwali Ogoni Division River Province – while the defendants are natives of Umuagbai, in Ndoki clan, Aba Division, Owerri Province.” (Underlining mine)

Finally, Ikpeazu, J., in his judgment in these proceedings after reviewing the evidence and making specific findings and in particular that it was the same land litigated on in suit No. P/44/1954 said:

“I uphold plaintiffs’ claim and  grant them title to the land in dispute………… in this case.”

From all the above evidence on record, the land in dispute could not be anywhere but Aba Division in Central Eastern State and the land being in Aba Division the challenge of competence of Aba High Court fails.  There is therefore no substance in grounds (1) and (3).  In my opinion, the issue of jurisdiction was not raised bona fide.

The next point worthy of my comments touches on the complaint about the competence of the plaintiffs/respondents to sue in a representative capacity.  It is my view that the appellants are stopped from raising the issue by their pleadings and I find it difficult to appreciate the rationale
behind the complaint about the insufficiency of affidavit evidence in support of the application for approval to be authorized to sue.  I pause here to examine the pleadings.

The plaintiffs/respondents in paragraph 1 of their Statement of Claim pleaded as follows:

“The plaintiffs are the chiefs, elders and natives of Umuagbai in Ndoki within Aba Division and sue for themselves and as representing the people of Umuagbai……………..:” (Underlining mine)

To this averment, the defendants/appellants replied as follows in paragraph 1 of their Statement of Defence.

“The defendants admit paragraph 1 of the Statement of Claim.”
In other words, they admitted that the plaintiffs are (1) the chiefs, elders and natives of Umuagbai in Ndoki within Aba Division; and (2) suing for themselves and as representing the people of Umuagbai.

Order 33 Rule 12 of the High Court Rules of Eastern Nigeria made definite provisions regarding the effect of admissions:  It reads:

“The defence shall admit all such material allegations in the Statement of Claim as the defendant knows to be true, or desires to be taken as admitted and such allegations may be taken as established without proof thereof.” (Underlining mine)
By their admissions therefore, the defendants have clearly deprived themselves of the opportunity to challenge the court’s order and indeed of their bona fides in such challenge of the order.  Furthermore, there was uncontradicted evidence at the trial or hearing of authorization and of approval of court which was accepted by the trial Judge.  The approval of court was granted pursuant to Order 4 Rule 3 High Court Rules, Eastern Nigeria that the plaintiffs be authorized to sue for the benefit and on behalf of the people of Umuagbai. The provisions of that rule are of particular interest and significance in that authority to sue is required to come from the people and the court is only required to give its approval.  It reads:

“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 authorized by the other persons interested to sue, or defend in such suit, for the benefit of or on behalf of all parties so interested.”

In the absence of any evidence of withdrawal of consent or authority to sue or indeed to defend from the represented parties or one of them any party objecting to the order of court approving authority to sue has no legs to stand on.
The attitude this court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case. If there is evidence that the parties appear to possess representative capacity and act or presumably act on the authority of those they represent, this court does not and will not upset a judgment of the lower court merely on a bare objection of failure to obtain the approval of the court.

There are numerous authorities to this effect.  The cases of  Adegbite v. Lawal 12 WACA 398, and Amusa Gbadesere v. Aina Edu & Ors. WACA 32/1955 a judgment of Federal Supreme Court delivered by Foster Sutton, FCJ., on the 15th day of February, 1956, may be distinguished on the facts from the cases of

1.     Habib Disu and 3 Ors. v. Daniel Kalio FSC 216/1962 delivered by Bairamian, JSC., on 7th March, 1964.

2.     Shelle v. Chief Asajon (1957) 2 FSC 68

3.     Onwunalu v. Osademe (1971) 1 All NLR, 14 Coker,. JSC.

4.      Dokubo v. Bob-Manuel (1967) 1 All NLR, 113 Coker, JSC.

5.     Mba Nta & Ors. v. Ede Nwede Anigbo & Anor. (1972) 5 S.C. 156 at 174-175, Coker, JSC.

In  Adegbite v. Lawal (Supra) the West African Court of Appeal (Blackall, P., delivering the judgment of the court) examined both the English Rules RSC Order 16 Rule 9 and Nigerian Rules, Order 4 Rule 3 (which is in pari materia with the Order 4 Rule 3 of the High Court Rules of Eastern Nigeria) and observed at page 399:

“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 the authority may be made by either side.

But under the Nigerian rule, while the approval of the court is required, the authorization is to be given by the other persons interested to 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.” (Underlining mine)

The observation was made as far back as December 4, 1948, by the West African Court of Appeal.  It still holds good today and I am also of the same view save to emphasise that it does not admit of too narrow interpretation of the words “other persons interested in suing or defending.”  Because there was no authority to defend, the case of Adegbite v. Lawal was dealt with against the five named defendants in their personal capacity.  Gbadesere v. Edu (supra) was similar in that the appellant had no authority to defend in a representative capacity.  But the attitude of the court today is less rigid.  It takes a look at the circumstances of the case and the conduct of the parties as disclosed by the evidence before making any pronouncement.

In the case of Habib Disu v. Daniel Kalio, Bairamian, JSC., said (quoting from page 4 of the certified true copy of judgment):

“Dealing with the point made in the closing address for the defendants, the learned trial Judge wrote this in his judgment:

“The defendants were sued in a representative capacity and although it was contended on their behalf that plaintiff obtained no order of court before suing them they themselves admitted in effect by paragraph 2 of the defence, that they were defending this action in that capacity.  This point was not made an issue at the trial. Even if it was, I would hold that it is the defendants who should apply for the approval of the court to defend in a representative capacity – vide Adegbite v. Lawal 12 WACA 398.” (Underlining mine)

The defendants object in the 1st ground of appeal that –

“The learned trial Judge erred in law in holding (ii) that the defendants were properly before the court despite the fact that there was no order of court authorizing them to appear in a representative capacity.  This decision is contrary to the judgment of the Federal Supreme Court in WACA 32/1955 between Amusa Gbadesere v. Aina Edu & Ors. delivered by Foster Sutton, FCJ., on the 15th February, 1956……………….”

The defendants therefore argued that the judgment cannot stand viz no doubt as a judgment binding on their family.

The argument presupposes that the defendants had no authority to appear on behalf of the family. Paragraph 2 of their defence means that they thought they were competent so to appear………….. The solicitors’ letter recognizes on the family behalf that the 1st, 3rd and 4th defendants made a valid contract of sale on behalf of the family of which the 2nd defendant is a member.  ……….

The defendants cannot in one breath say that they can validly sell family land, and in the next breath say that they cannot validly be sued in a case arising out of the valid sale……………. The defendants were competent to defend on the family’s behalf and there was no need for a fresh authority or any court’s opinion, Adegbite v. Lawal and Gbadesere v. Edu differ on the facts and they do not apply in the present case.”

The present attitude of this court was expressed by Coker, JSC., in the case of Mba Nta & Ors. v. Ede Nwede Anigbo & Anor (1972) 5 S.C. 156 at 174-175 (which came on appeal from Enugu High Court) when he said:

“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 authorization to represent their people.  What it says is that they “may with the approval of the court be authorized by the other parties to defend…….for the benefit of or on behalf of all parties 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 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 to appeal under our  Constitution” (Section 117(6) of the Constitution of Nigeria 1963) “and we think it right to argue that it is not open to a defendant named in the 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.” (Underlining mine)

I am of the same view as my learned brother Idigbe, JSC., that the two issues raised must be decided against the appellants and I hereby dismiss the appeal with costs assessed at N300.00.  (Three Hundred Naira).

A. NNAMANI, J.S.C.: In suit No. A/125/60 the respondents, in this appeal filed a claim in the High Court of Eastern Nigeria, Aba Judicial Division against appellants for:

“(a) Declaration of title to the Umuagbai land known as “NKIKARA MKPURU AND NKITI-OBU”
(b) 600 pounds Damages for Trespass
(c) Injunction restraining the defendants their agents and servants from further acts of trespass.”

Pleadings were ordered and filed and after several years delay which delay was partly caused by the Nigerian civil war the matter came up for hearing in the Aba Judicial Division of the High Court of the East Central State.  On the 22nd November, 1971 Ikpeazu, J., gave judgment in favour of respondents. It is against that judgment that appellants have appealed to this court. Before going further, I must mention that I agree with the resume of the history of the dispute between the parties and the facts of the case as contained in the judgment of my learned brother Idigbe, JSC.,  just delivered and which I had the privilege of seeing.  I also concur with the conclusions he has reached on the issues of law raised in this appeal.

Learned counsel for the appellants argued three grounds of appeal before us numbered as 8, 9, 10 viz:

8.     ERROR IN LAW

The learned trial Judge erred in law in giving judgment in favour of the plaintiffs/ respondents herein when he had no jurisdiction to hear the said suit.

PARTICULARS

(i)   The land in dispute is situated in the Ogoni Division of the Rivers State;
(ii)  The High Court of the Aba Judicial Division of the East Central State had no jurisdiction to continue to hear the said suit after the creation of the Rivers State by the States (Creation and Transitional Provisions) Decree No. 14 of 1967 as amended by the States (Creation and Transitional Provisions) (Amendment) Decree No. 19 of 1967 and Constitution (Miscellaneous Provisions) Decree No. 20 of 1967;
(iii) The learned trial Judge purported to exercise the powers and jurisdiction of the Aba Judicial Division of the High Court of East Central State within the area of the Rivers State.

9.  ERROR IN LAW

The learned trial Judge erred in law in giving judgment to the plaintiffs for themselves and as representing the people of Umuagbai when:

(i)   The plaintiffs were never granted leave to sue in a representative capacity;
(ii)  The evidence presented on the record in support of an application for an order for leave to sue in a representative capacity (which order was never made) was that the two plaintiffs had been authorized by only two members of the Umuagbai Community to sue on behalf of the community;
(iii) The plaintiffs were not authorized by the members of the said Umuagbai, Ndoki to sue on their behalf.

10.   MISDIRECTION IN LAW

The learned trial Judge failed to direct his mind to the issue raised on the pleadings as to the location of the land in dispute and therefore to the question of his jurisdiction to hear the case.
Arguing first on ground 9, learned counsel for the appellants contended that respondent were never granted leave to sue in a representative capacity.  He said there is a distinct requirement that a party seeking to sue on behalf of a community must receive the approval of the court to sue as well as the authorization of the other persons who have interest in the subject matter of the suit.  Judging from the state of the records of appeal, he argued that no order authorizing the respondents (plaintiffs in the main suit) to sue in a representative capacity was made.  Referring to the affidavits sworn to by Godwin Wuche and Jonah Wulu who described themselves as

“the eldest men in Umuagbai village, Ndoki in Aba Division”.

He contended that the learned trial Judge could not make an order based on such evidence.  Such an order would be wrong in law. Authority to sue in a representative capacity cannot be given by one or two persons he said.  Moreover, there was nothing in the affidavit showing that deponents averred that they were joint owners (with named plaintiffs/respondents) of the land. He relied on the cases of Adegbite & Ors. v. Lawal & Ors. 1 (1948) 12 WACA 398; Oguchi Onea & Ors v. Nweke Egbuchi & Ors (1970/71) ECSLR 80. He also referred the court to Order IV R. 3 of the Rules of the High Court of Eastern Nigeria.

There is no doubt that the records of appeal show that there was an ex-parte motion filed by the plaintiffs/respondents for an order of court to sue in a representative capacity. The High Court was to be  moved on 6/12/60.  There is, however no indication in the records available of leave being granted and the order made.  On the 20th December, 1960, the records show an endorsement thus “Plans and pleadings ordered 90/90 days (vide Vol. 25/213 – Record Book lost during the civil war).” While it may be stretching the issue too far to conjecture as to what may have been contained in the record book said to be lost, one cannot but attach some importance to that endorsement “Record Book lost during the civil war” and the effect the civil war may have had on this case. It is pertinent to remember that even counsel for the defendants (Mr. Douglas, as he then was), had lost his documents and needed time to collect fresh ones. Besides, it is my view that it is not open to the appellants, having regard to their conduct before and during the trial, to raise this matter at this stage.  In their Statement of Claim dated 17.3.61,  the plaintiffs/ respondents stated in paragraph 1 thereof

“The plaintiffs are the Chiefs, elders, and natives of Umuagbai in Ndoki within Aba Division and sue for themselves and as representing the people of Umuagbai……………………………”
The appellants in paragraph 1 of their Statement of Defence dated 9.3.62 admitted this assertion.  It is trite law that parties are bound by their pleadings (see Aderemi v. Adedire (1966) NMLR 398 at.401)  Also during the hearing the plaintiffs/respondents testified unequivocally;
“We were duly authorized by our people to institute the action on their behalf and we had approval of court on    6.12.60.”

This testimony was never challenged in cross-examination.
On the question of the affidavit evidence placed before the High Court and the validity of the order, I  wish to look at Order IV R. 3 to which our attention was drawn.  Order IV R.3 of the High Court Rules of Eastern Nigeria states that:

“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 authorized by the other persons interested to sue or to defend in such suit for the benefit of or on behalf of all parties interested.”

I am in agreement with the judgment of Aniagolu, J., (as he then was) in the case of Oguchi Onea & Ors. 1970/71 ECSLR 80 in which he applied these rules. The community or group concerned must together with the named plaintiffs have a common interest in the subject matter of the suit.  They must then authorize the named plaintiffs to sue on their behalf and approval of court for this must be sought. Learned counsel for the appellants has raised the point that the affidvit supporting the motion for plaintiffs (i.e. respondents now) to sue in a representative capacity was sworn to by only two persons and not the Umuagbai community.  Though there was no evidence of the customary law of the area before us, I attach some importance to the fact that the two deponents concerned are

“the eldest men in Umuagbai village, Ndoki in Aba Division”…………….and “authorized the plaintiffs to bring this action on their own and on behalf of the entire members of the village of Umuagbai against the defendants representing the village of Okwale, Ogoni Division.”

Be that as it may, the authorities seem to me to be that where what is in issue is a challenge of the plaintiff’s authority to sue simpliciter i.e., whether  as solicitor or holder of a power of attorney, the challenge must be made at an early stage and must not be set up by way of defence.  See Russian etc. Bank v. Comptoir de Mulhouse (1925) AC 112, Richmond v. Branson (1914) 1 CH 968. But where as in the instant case the issue relates to the capacity of the plaintiff to sue in a representative capacity, the nature of the evidence available, then the matter cannot be disposed of on affidavit evidence alone.  It may be raised in the pleadings, the defendants may file a motion on notice challenging the plaintiff’s authority and the issues would be taken at the trial and at the end the trial Judge would make a finding of fact.  (See Councillor Nwigbo Ogayi & Ors. v. Otaorua Amainyima & Ors. (1974) ECSLR Vol. 4 at p. 328.) In Jeremiah Nsima v. Ole Nnaji & Ors. (1961) All NLR 441 at p.443 Idigbe, J., (as he then was), stated

“To my mind the issue is one which has to be resolved in the circumstances not merely on affidavits but by evidence in court – perhaps preferably at the trial where the court may form a true opinion after cross-examination of the witnesses whose demeanour the court shall have observed”

The defendants/appellants, as already stated above did not dispute the capacity of the respondents to sue in a representative capacity in their pleadings rather they admitted it.  They filed no motion in the court below challenging the authority of the plaintiffs.  Nor was there any challenge at the trial.  At the end of the case Chuba Ikpeazu, J., in his judgment held that

“The plaintiffs have brought this action for themselves and as representing the people of Umuagbai and have sued the defendants for themselves and as representatives of their people of Okwale.”

The case of Adegbite & Ors. v. Lawal & Ors. 12 WACA 398 cited before us is not in my view immediately relevant as it deals with the capacity of defendant to defend in a representative capacity or otherwise.  This ground of appeal therefore fails.

On grounds 8 and 9 the learned counsel for the appellants conceded that the Aba Judicial Division was properly seised of the main suit in 1960.  He contends, however, that on 27th May, 1967, the States (Creation and Transitional Provisions) Decree No. 14 of 1967 created the Central Eastern and the Rivers States. This Decree was  amended by the States (Creation and Transitional Provisions) Amendment Decree No. 19 of 1967.  In the Schedules of both Decrees,Aba is placed under the Central Eastern State and Ogoni in Rivers State. He argued that the plans filed in the case showed that the land in dispute lay south of Imo River and in Ogoni Division.  He therefore contended that the trial Judge had no jurisdiction and that the suit should be taken by the Rivers State High Court. There is no dispute as to the identity of the land in dispute.  It is in essence the same area which was the subject of arbitration between the parties and in dispute in Suit P/44/55.  One of the main issues between the parties is the question of location – the plaintiffs/respondents claiming that it is in  Umuagbai, Aba Division while the defendants/appellants claim it is in Okwale, Ogoni Division.  In their Statement of Claim the respondents describe the land “as Umuagbai situate in Ndoki in Aba Division………………..”  The appellants on the other hand assert in their Statement of Defence that the land in dispute is situate in Ogoni division within the Port Harcourt Judicial Division.  It is not contested by the appellants that part of this land in dispute is Umuagbai Village but they claim that they are owners of it and that the respondents crossed over from the other side of the Imo River, settled there, and were paying them annual tribute.  In the absence of evidence of the administrative boundary between both Aba and Ogoni Division there is very little on which the location of the land can be definitely decided.  It is pertinent, however, to mention that on the 13th April, 1954, P. L. Wood, District Officer Ogoni Division made an order transferring a case between the same parties in respect of this same land from the Northern Kana Clan Court, Ogoni, to the Supreme Court of Port Harcourt.  In the schedule to the order of transfer one of the grounds of transfer was stated as

“The land in dispute is of very considerable area and includes the site of the village of Umuagbai which lies in the Aba Division”
I would also wish to add that in their findings in the 1932 Arbitration (dealt with in greater detail in the judgment of my learned brother Idigbe, JSC.), the arbitrators found as follows:-

“The land in dispute is variously described as NKIKAR NKPURU, Kegbam Nayo, Uzo Okwale, Miuigbe and other names but in actual fact the dispute covers the whole of the land lying between Okwale village and the Imo River, including the site of the village of Umuagbai…………….” (Underlining mine)

In my view this exercise in determining the location of the land in either administrative division becomes even more necessary when proper note is taken of the provisions of Decrees No. 14, 19 and 20 of 1967.  Section 3 of the States (Creation and Transitional Provisions)  Decree No.14 of 1967 provides as follows:-

“The jurisdiction of the High Court of Lagos or any other High Court shall at the direction of the Head of the Federal Military Government extend to any State created under this Decree so however that proceedings pending before a High Court of a region immediately before the commencement of this Decree may after such commencement be continued before that court and shall not be affected by the provisions of this section.”

If the matter rested  here it would have been unnecessary to continue to determine so exactly the location of the land in dispute.  This is because the Aba High Court having been seised with this suit since 1960, and since it was clearly pending before it in May 1967 it would, notwithstanding the creation of the Rivers State have been competent to continue and conclude hearing of it. But by Section  2(c) of the Constitution (Miscellaneous Provisions) Decree No. 20 of 1967, Section 3 of the States (Creation and Transitional Provisions)  Decree No. 14 of 1967 was repealed. The commencement date of both Decrees was 27th May, 1967. It is my view therefore that when this suit was taken by Ikpeazu, J., on the 16th November, 1970, in the High Court of the East Central State he could only have had jurisdiction if the land in dispute was situate within the Aba Judicial Division. On the only evidence of location before the lower court and to which I have made reference, I am satisfied that the land in dispute which includes the Umuagbai Village is in Aba Judicial Division. By the combined effect of Section 1 of the State, (Creation and Transitional Provisions)  Decree No. 14 of 1967 and Section 1(a) of the States (Creation and Transitional Provisions)  (Amendment) Decree No. 19 of 1967 Aba Division is placed within the Central Eastern (Later East Central) State. Ikpeazu, J., of the High Court of East Central State Aba Judicial Division, in my judgment, had jurisdiction to hear a suit in respect of land in Aba Division. In any case even though the issue of location of the land was raised in the appellant’s pleadings and testimony in the court below, the question of jurisdiction was never made an issue until it was raised in this court.  The submission on jurisdiction equally fails.

In the final analysis all the ground of appeal fail.  The appeal fails and it is dismissed with costs to the respondents.

M. L. UWAIS, J.S.C.: I have had the opportunity of reading the judgment prepared and delivered by my learned brother, Idigbe, JSC. For the reasons contained in the judgment, I agree that the appeal should be dismissed.

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Other Citation: (1980) LCN/1122(SC)