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Mba Nta & Ors. V. Ede Nwede Anigbo & Anor. (SC.719/1966  • 11 May 1972)

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➥ CASE SUMMARY OF:
Mba Nta & Ors. V. Ede Nwede Anigbo & Anor. (SC.719/1966  • 11 May 1972)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Binding judgements.

➥ CASE FACT/HISTORY
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.

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.”

Available:  Adeniyi Olowu & Ors. v. Olabowale Aremu Olowu & Anor. (1985)

In the course of a reserved judgment, the learned trial judge accepted the case of the plaintiffs and rejected the defence. The defendants dissatisfied with this judgment have now appealed to this Court against it.

➥ ISSUE(S)
I. 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).

II. The judgement is against the weight of evidence.

III. 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.

➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]

↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.

[STATEMENT OF CLAIM SUPERCEDES THE WRIT
‘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.’]
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↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.

[‘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.’]
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↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.

Available:  A.U. Deduwa & Ors. v. The State (1975) - CA

[‘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.’

Available:  A.U. Deduwa & Ors. v. The State (1975)

‘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.’]
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✓ DECISION:
‘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.’

➥ FURTHER DICTA:
⦿

➥ LEAD JUDGEMENT DELIVERED BY:
G. B. A. Coker, J.S.C.

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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