Chief Osigwe Egbo & Ors V. Chief Victor Laguma & Ors (1988)

LawGlobal-Hub Lead Judgment Report

KOLAWOLE, J.C.A.

On 17th June, 1985, Dagogo-Manuel, J. of the Port Harcourt Judicial Division of the High Court of Rivers State entered judgment in favour of the plaintiffs in the following terms:

“…I exercise my discretion in favour of the members of Opolo Villages and declare in their favour a customary right of occupancy over the disputed lands namely KALIAMA and OKOBEDE or OKORIA. These areas are pink in the plan marked Exhibit “A” and are within the larger area, verged Green in Exhibit “A”. I also award them N200 as general damages for trespass and order an injunction against the members of Okutukutu and Etegwe villages from committing any further acts of trespass on those lands.”

The plaintiffs instituted the action on 19 April, 1972. They were granted leave by the court to sue in a representative capacity on their behalf and on behalf of other members of the Opolo Village. Pleadings were ordered on 29 May, 1972. There were 17 defendants originally who were sued. Many of them died as well as some of the plaintiffs in the course of the proceedings.

After series of applications for extension of time, the plaintiffs eventually filed their statement of claim on 9th April, 1974. The defendants finally filed their Statement of Defence on 15 April 1975. It therefore took the parties three years before pleadings were completed. Hearing then commenced before Dagogo-Manuel, J. on Thursday 15 June, 1978 and third plaintiff who was called as PW1 was finished with on 11 July 1978. The matter was adjourned to 30 and 31 August 1978 before Dagogo-Manuel, J. On 30 August 1978, Dagogo-Manuel, J., adjourned the case to 1 December 1978 because counsel for both parties were absent.

On Friday, 1 December 1978, the matter came up on the cause list of Dappa, J sitting at Ahoada Judicial Division. The record of the court for that day showed the following:

“Court: Counsel for the parties are both absent. I understand from the plaintiffs that they have closed their case and their solicitor has written, suggesting the hearing being continued by the same Judge who heard the plaintiffs’ case. This case is therefore, referred to Mr. Justice J.D. Manuel, who is now in Port Harcourt High Court. Senior Registrar to send the file to him in Port Harcourt.

(Sgd.) W. D. DAPPA

JUDGE

1/12/78”.

After series of adjournments, hearing commenced again before Dagogo-Manuel, J. at the Port Harcourt Judicial Division on 25 July, 1979, when Joseph Osaia was called and referred to in the record as PW1 even though third plaintiff. Bedford Odede, had testified as first witness at Ahoada on 15 June 1978.

Dagogo-Manuel, J. eventually completed the hearing of the case and heard the addresses of Counsel on 17 May, 1985; judgment was delivered on 17 June, 1985. The defendants were dissatisfied. They have appealed to this Court. Both parties filed their respective briefs. The defendants who will hereafter be referred to as the appellants filed their brief on 22 November 1985, and the plaintiffs who are now the respondents to this appeal filed the respondents’ brief on 7 October 1986.

It appeared that on 21 November 1986, the appellants filed a motion in this Court praying the Court for leave to amend the grounds of appeal appearing at pages 150 and 151 of the Records by substituting therefor the ground of appeal appearing in the schedule thereto and leave to argue the amended ground of appeal. The amended ground of appeal is in these terms:

“The Learned Trial Judge erred in law by continuing with the trial of the suit after his jurisdiction to carry on with the trial had ceased. The judgment delivered by him was therefore a nullity.

1. At the time when trial of this suit commenced the Ahoada Judicial Division of the High Court of Rivers State was established and its jurisdiction included Yenagoa in Brass Division where the land which is the subject matter of this suit is situate.
2. Without any order of transfer the Learned Trial Judge who had taken a witness in the case at Ahoada before being transferred to Port Harcourt continued the hearing of the case in Port Harcourt and gave judgment even though his jurisdiction over Ahoada Judicial Division had ceased at least from 1st December 1978.”

The amended ground of appeal had been reflected in the appellants’ brief earlier filed.

At page 9 of the appellants’ brief, the only issue for determination in line with the additional ground of appeal was formulated as follows:-

“The sole issue for the purpose of this appeal is whether or not the learned trial Judge had jurisdiction to continue the trial of this suit when he was transferred from Ahoada Judicial Division to Port Harcourt Judicial Division.”

Originally, six grounds of appeal were filed at pages 150 and 151 of the record of appeal before the additional ground of appeal was filed. Learned counsel for the appellant stated at page 5 of the appellants’ brief that he would argue only the additional ground of appeal. In other words, the six original grounds of appeal were abandoned and they are hereby accordingly struck out.

Both in the appellants’ brief and in his oral submission before us, learned counsel for the appellants, Mr. Nwanodi, submitted that when this action was commenced in 1972 in the High Court of Rivers State in the Port Harcourt Judicial Division, there was only one Judicial Division for the entire Rivers State. Learned counsel called upon the court to take judicial notice of that fact.

The land which is the subject matter of the Suit was said to be situate at Opolo village, Yenagoa, in Brass Division.

On 23 December, 1976, by order under the hand of the Military Governor, the Rivers State of Nigeria was divided into 4 Judicial Divisions namely: Port Harcourt, Ahoada, Bori and Degema Judicial Divisions. The Order was published in the Rivers State of Nigeria Gazette No.3 Volume 9 of 20 January 1977 at page B53 as RSLN No.2 of 1977.The commencement date of the Order was 1 January 1977.

Learned counsel further submitted that in the same Gazette at page B54, there appears the order of the Chief Judge of Rivers State listing the places of session for the High Court in the Ahoada Judicial Division to be Ahoada, Omoku, Yenagoa and Okehi.

Learned counsel contended that on 23 March 1977, the case which is the subject matter of this appeal, although properly commenced and continued in the Port Harcourt Judicial Division appeared in the cause list of the High Court of the Ahoada Judicial Division holden at Yenagoa without any or any proper order of transfer Mr. Justice Dagogo-Manuel assumed jurisdiction. I think the date learned counsel intended to refer to is 21/3/77. There was no record of any court business on 23/3/37. It seems to me that Mr. Nwanodi must have been somewhat confused in the above submission. The pith and substance of his whole contention is that once Dagogo-Manuel, J. commenced hearing at Ahoada on 15 June 1978, and ending with the 3rd plaintiff on 11 July, 1978, he no longer had anything to do with the matter from 1 December 1978 when Dappa, J. had been posted to Ahoada and Dagogo-Manuel had been transferred to Port Harcourt.

The matter then proceeded, however, as I have narrated, until it came before Mr. Justice Dagogo-Manuel on 23 April, 1979, at Port Harcourt Judicial Division where the learned Judge made the following comment:

“Court:- This is a Yenagoa matter and has been pending since 1972. It was part heard before me in Ahoad. and had to be sent here for completion.”

Mr. Nwanodi argued that the learned trial Judge would have clearly so stated if the matter was before him pursuant to an order of transfer properly made. He submitted that no such order of transfer was ever made. Nevertheless, the learned trial Judge continued with the trial and heard witnesses for both parties. Counsel for both parties addressed the court and in a considered judgment the court below granted the Respondents all the reliefs they claimed.

Mr. Nwanodi’s complaint is that the learned trial Judge, Dagogo-Manuel, J. erred in law by continuing with the trial of the suit after his jurisdiction to carry on with the trial had ceased. Consequently, he contended, the judgment delivered by the learned Judge was therefore a nullity. Mr. Nwanodi submitted that at the time when the trial of the suit commenced, the Ahoada Judicial Division of the High Court of the Rivers State was already established and its jurisdiction included Yenagoa in Brass Division where the land which is the subject of this suit is situate. Without any order of transfer, learned counsel contended, the learned trial Judge who had taken a witness in the case at Ahoada before being transferred to Port Harcourt continued the hearing of the case in Port Harcourt and gave judgment even though his jurisdiction over Ahoada Judicial Division had ceased at least from 1 December 1978.

Learned counsel referred to section 41 and 42 of the High Court Law Cap 61 Laws of Eastern Nigeria, 1963, applicable to Rivers State which make provisions for Judicial Divisions of the High Court of the Rivers State to be created and for the Chief Judge to determine the distribution of business before the High Court among the Judges thereof. Sections 41 and 42 aforesaid provide as follows:

“41 (1) For the more convenient dispatch of business the Court may sit in two or more divisions.

(2) The Governor on the recommendation of the Chief Judge may divide (Rivers State of Nigeria) into Judicial Divisions and the Chief Judge shall thereupon direct one or more Judges to sit in each division.

42. The Chief Judge may determine the distribution of the business before the Court among the Judges thereof and may assign any judicial duty to any Judge or Judges.”

It should be noted that section 41 provides for the court to sit in two or more divisions for the more convenient dispatch of the business of the court and section 46 and 47 which speak of the power of a Judge or the Chief Judge to transfer any cause or matter, all employ the word MAY. The power of the Governor to create judicial divisions in the State upon the recommendation of the Chief Judge and the power of the Chief Judge to distribute the courts business employ the word may.

It has been observed that when a statute creates a duty, one of the first questions for judicial consideration is what is the sanction for its breach; or the mode for compelling the performance of the duty. This question usually resolves itself into the inquiry whether the Act is mandatory or directory, that is, absolute or discretionary. If it is directory, the courts cannot interfere to compel performance or punish breach of the duty, and disobedience to the Act does not entail any invalidity.

If the Act is mandatory, disobedience entails legal consequences, which may take the shape of a public or private remedy obtainable in a court of justice, or the avoidance of some contract, instrument, or document without the intervention of any court. [See CRAIES ON STATUTE LAW, 7th Edition (1971) page 229].

In all the sections 41, 42, 46, and 47 of the High Court Law, the distinction must be reflected in the words “shall” or “may” in the Act. The meaning of these words in statutes conferring a power is the subject of constant and conflicting interpretation.

Talbot, J., observed as long ago as May, 14, 1929 in Sheffield Corporation v. Luxford (1929) 2 K.B. 180 at page 183 that-

“It has often been said, and it is possibly a convenient abbreviation, but like all inaccurate expressions it often leads to misunderstanding, that in many statutes the word “may” means “must”. I think it has been pointed out once for all in Julius v. Bishop of Oxford 5 App. Cas. 214, 222, 229, 235, 241 that that is an inaccurate expression. “May” always means may. “May” is a permissive or enabling expression; but there are cases in which, for various reasons, as soon as the person who is within the statute is entrusted with the power it becomes his duty to exercise it”.

Section 41 of the High Court Law properly spells out the purpose of the succeeding provisions. The main purpose of creating two or more Judicial Divisions in the State is for the more convenient dispatch of business of the court. That is the history of the legislation and the object of it.

In order to appreciate the meaning to be ascribed to the provisions of the sections, one has to look at the history of the legislation. How did the law stand when the statute to be construed was passed? In Savannah Bank of Nigeria and anor v. Ammel Ajilo & anor (1987) 2 N.W.L.R. 421 when the Court of Appeal (Lagos Division) was confronted with certain provisions of the Land Use Act, I had the opportunity to refer to what Lindley, M.R., said in Re Mayfair Property Company (1892) 2 Ch. 28, 35 where the Master of the Rolls said-

“In order properly to interpret any statute it is necessary now as it was when Lord Coke reported Heydon’s case to consider how the law stood when the Statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief”.

I then observed as follows at page 429 of the Savannah Bank of Nigeria Limited case:-

“There is, indeed, a good deal of judicial support for the view that in interpreting an Act of Parliament the court is entitled, and in many cases bound, to look to the State of the Law at the date of the passing of the Act, and as the law stood under previous statutes, in order properly to interpret the statute in question (see

Macmillan v. Dent (1907) 1 Ch. 107, 120)”.

As learned counsel, Mr. Nwanodi, submitted with candour, the state of the Law before the promulgation of the Rivers State Legal Notice No.2 of 1977 was that for the whole of the Rivers State, there was only one Port Harcourt Judicial Division.

In accordance with section 41 of the High Court Law, Cap. 61 Laws of Eastern Nigeria 1963, the Governor promulgated RSL N No 2 of 1977 in the Rivers State of Nigeria Official Gazette No. 3 Vol. 9 of 20 January, 1977 “for the more convenient dispatch of business” of the Court. It provides as follows:-

“The Rivers State of Nigeria Judicial Divisions Order, 1976. (1st January 1977)

In exercise of the powers conferred on me by subsection 2 of section 41 of the High Court Law (Cap. 61 of the Laws of the former Eastern Nigeria 1963), applicable to the Rivers State of Nigeria by virtue of subsection 1 of section 5 of the State (Creation & Transitional Provisions) Decree 1976 (No.12 of 1976) and of all other powers enabling me in that behalf, I, Colonel Zamani Lekwot, Military Governor of the Rivers State of Nigeria, hereby make the following-

ORDER

1. This Order may be cited as the Rivers State of Nigeria Judicial Divisions Order 1976 and shall come into operation as from the 1st day of January, 1977.
2. The Rivers State of Nigeria shall be divided into Judicial Divisions as specified in the Schedule hereto.

SCHEDULE

1. Port Harcourt Judicial Division
2. Ahoada Judicial Division
3. Bori Judicial Division
4. Degema Judicial Division

GIVEN under my hand this 23rd day of December, 1976.

COLONEL ZAMANI LEKWOT

Military Governor, Rivers State.”

This legal notice is an “existing law” pursuant to section 274(4)(b) of the 1979 Constitution. An existing law is defined to mean any law and includes any rule of law or any enactment or instrument whatsoever which comes into force after that day. Pursuant to section 274(1) of the Constitution, the legal notice reproduced above which is an instrument, shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution.

In my judgment the effect of the RSLN No.2 of 1977 is for the more convenient dispatch of the administration of justice. In other words, it was intended, as it is said these days in common parlance, to bring justice nearer to the people. It would certainly be more expensive when there was only the Port Harcourt Judicial Division covering the entire Rivers State for litigants to travel to Port Harcourt from Ahoada, Bori and Degema. The RSLN No. 3 made pursuant to section 41(3) of the High Court Law by the Chief Judge A.E. Allagoa who was to serve the same purpose.

In construing sections 46 and 47 of the High Court Law the first question for judicial consideration is what is the sanction for its breach or the mode for compelling the performance of the duty.

Lord Blackburn expressed the sensible approach to the rule as to statutes creating duties being directory only. The Law Lord observed in Middlesex Justices v. R (1884) 9 App. Cas. 757,778 thus –

“There is a numerous class of cases in which it has been held that certain provisions in Acts of Parliament are directory in the sense that they were not meant to be a condition precedent to the grant, or whatever it may be, but a condition subsequent: a condition as to which the responsible persons may be blamable and punishable if they do not act upon it, but their not acting upon it shall not invalidate what they had done, third persons having nothing to do with it.”

That appears to me to be the position here bearing in mind the state of the law and the history of the legislation before the RSLN Numbers 2 and 3 were promulgated in 1976.

As it appears to me, the provisions of sections 46 and 47 of the High Court Law are directory and the courts cannot interfere to compel performance or punish breach of the duty and disobedience to the Act does not entail any invalidity of the proceedings before the learned trial Judge. The trial Judge may be blamable and punishable for not acting upon the Act but as Lord Blackburn rightly stated, his not acting upon it shall not invalidate what he had done, third persons having nothing to do with it.

This therefore leads me to the submission of Mr. Nwanodi that the learned trial Judge had no jurisdiction to continue with the trial of the suit which he had commenced at Ahoada Judicial Division at the Port Harcourt Judicial Division without a valid or any order of transfer from the hand of the Chief Judge of the High Court of the Rivers State. Learned counsel again referred to sections 41 and 42 of the High Court Law as well as sections 46 and 47 of the Law to which I had earlier made reference.

Mr. Nwanodi referred to the definition of jurisdiction in Stroud’s Judicial Dictionary fourth edition volume 3 at page 1452 and the opinion of Lord Diplock in Garthwaite v. Garthwaite (1964) 2 All E.R. 233 at page 241; (1964) Probate 356. Reference was also made to S.O. Ukpai v. U. O. Okoro & ors (1983) 11 S.C. 231; (1983) 2 S.C. NLR 380. Counsel submitted that the case of Ukpai v. Okoro was decided on its own peculiar facts governing the statutory provisions of Election petition. Mr. Nwanodi relied on the decision of the Enugu Division of the Court of Appeal in the case of Okpara Okorji & anor v. Ezekiel Emenimaya & 2 ors FCA/E/83/82 (unreported) decided on 4 June 1984. Learned counsel submitted that the case of Okpara Okorji v. Ezekiel Emenimaya is on all fours with the case in hand. In that case Olatawura J.C.A. delivered the lead judgment. Two grounds of appeal were canvassed in that appeal, one was based on the inordinate delay between the hearing and conclusion of evidence and delivery of judgment which would have made the learned trial judge to lose the impression of the witnesses who testified and the other ground was based on the learned trial Judge commencing the hearing of the case at Ahoada Judicial Division and carrying with him the part-heard case file from Ahoada Judicial Division to Port Harcourt Judicial Division the new station to which he had been transferred without a formal order of transfer by the Chief Judge of the Rivers State.

Phil-Ebosie, J.C.A. allowed the appeal in his concurring judgment only on the ground that the learned trial Judge could not continue a suit properly filed in Ahoada in Port Harcourt Judicial Division without any order of the Chief Judge under section 48 of the High Court Law. Aseme J.C.A. in his own concurring judgment said:

“I entirely agree with him (Olatawura, J.C.A) that this appeal should be allowed at least on the ground of delay alone.”

Olatawura, J.C.A. at page 7 of the lead judgment observed as follows:

“There is one High Court of Justice in a State but there are for the purposes of administration Judicial Divisions created for the easy determination and disposition of cases”.

But it seems to me that the kernel of the decision of Olatawura, J.C.A., is contained in the following comments from page 7 to page 8. His Lordship observed:-

“What is material in this appeal is the provision of Order VII rule 1 which states:

“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.”

The learned Justice further observed at page 9 thus:-

“It is not for a Judge to carry with him his part-heard case from his former station to a new station where he has just been transferred.”

Reference was made in passing to sections 42, 47 and 51 of the High Court Law but it does not appear that those sections were the foundation upon which the trial was declared a nullity nor does it appear that those sections were given adequate consideration in relation to appeal.

Mr. Nwanodi further submitted that a violation of the settled practice of the Court amounts to lack of jurisdiction. The case of Okpara Okorji v. Ezekiel Emenimaya went on appeal to the Supreme Court and reported as Ezekiel Emenimaya & 2 ors. v. Okpara Okorji & anor. (1987) 3 NWLR (Part 59) page 6. At the Supreme Court the only issue canvassed before their Lordships and upon which the appeal was dismissed was, in the words of Kawu, J.S.C. (page 15):

“In view of many long intervals of delay in taking the evidence of the parties and their witnesses, and the long lapse of time between the conclusion of the hearing and the delivery of judgment … the trial judge had … lost all the impressions which a Court of trial could afford him.”

It therefore follows that the other ground upon which the Court of Appeal allowed the appeal whereby the case was remitted to the lower Court for a retrial remains unaltered.

In order therefore to determine the ratio decidendi of a case, it has been suggested that we should take the proposition of law put forward by the Judge, reverse or negate it, and then see if its reversal would have altered the actual decision. If so, then the proposition is the ratio or part of it. In other words the ratio is a general rule without which the case would have been decided otherwise. Here two propositions of law were put forward by the learned Justice:

(1) “What is material in this appeal is the provision of Order VII Rule 1” (of the High Court Rules of Eastern Nigeria).

(2) The inordinate delay in the trial of the case.

The Supreme Court affirmed the decision of the Court of Appeal upon the second proposition of the law. If the first proposition of law put forward by the learned Justice were reversed by the Supreme Court, the reversal would have made no difference, so the first proposition strictu senso is not the ratio or part of it. (See Salmond on Jurisprudence Twelveth Edition by P.J. Fitzgerald.)

It is, however, settled law of great antiquity and of great general importance that the Court of Appeal is bound to follow its own decisions and those of Courts of co-ordinate jurisdiction, and the “full” Court is in the same position as a division of the Court consisting of three members. Lord Green, M.R., delivering the judgment of the Court observed in Young v. Bristol Aeroplane Co. Ltd. (1944) 1 K.B. 718, 723 as follows:

“Cases in which this Court has expressed its regret at finding itself bound by previous decisions of its own and has stated in the clearest terms that the only remedy of the unsuccessful party is to appeal to the House of Lords are within the recollection of all of us and numerous examples are to be found in the reports.”

At page 729 Lord Green further observed:

“On a careful examination of the whole matter we have come to the clear conclusion that this Court is bound to follow previous decisions of its own as well as those of Courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience are here summarised:

(1) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow.

(2) The Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.

(3) The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.

For example, where the Court is satisfied that an earlier decision was given in ignorance of the TERMS of a statute or a rule having the force of a statute, “it cannot be right to say that in such a case the Court is entitled to disregard the statutory provisions and is bound to follow a decision of its own given when that provision was not present to its mind.” (page 729).

I shall come back to the effect of Young v. Bristol Aeroplane Co. Ltd. (supra) on the present appeal. Learned counsel then briefly touched on the Respondents’ brief which raised two fundamental issues:

(1) That the appellants having taken part in the proceedings from the beginning to the end without raising any objection to Dagogo Manuel, J. hearing the case after his transfer from Ahoada to Port Harcourt had waived their right to object at the Court of Appeal.

(2) That jurisdiction and the competence of a Court to hear a case is confused with regularity in the proceedings and the propriety of the Court hearing a case.

Learned counsel cited the cases of –

(1) Anyaegbu Ojiegbe & ors v. Gabriel Okwaranyia & ors (1962) 1 All NLR 605 at 608.

(2) R. Ariori & ors v. Muraimo B. O. Elemo & ors (1983) 1 S.C. 13, 69 para. (C)

(3) Western Steel Works Ltd. & anor v. Iron & Steel Workers Union of Nigeria & anor. (1986) 4 NWLR 617, 627-8.

(4) Ezeala Nnajifor & ors v. Linus Ukonu & ors (1986) 4 NWLR 505, 517, 525.

(5) Gabriel Madukolu & ors v. Johnson Nkemdilim (1962) 1 All NLR 587.

(6) Adeigbe & anar v. Salami Kusima & ors (1965) 1 All NLR 248, 252.

I shall consider the effect of these cases on this appeal when I come to consider the Respondents’ case.

Mr. Nwanodi however submitted that the breach of the practice and procedure provided in the High Court Law is fatal to the appeal; he therefore submitted that the case be remitted to the High Court of the Rivers State Yenagoa Judicial Division for re-trial because the hearing was properly commenced in the Ahoada Judicial Division in which the land in dispute was situate but the hearing was wrongly continued before the learned trial Judge when he had ceased to have jurisdiction in the said Ahoada Judicial Division.

Mr. Chike Ofodile, S.A.N. predicated his submission upon the premises that when the action was commenced on 18th April, 1972, at the Port Harcourt High Court in the Rivers State even though under the present Ahoada Judicial Division, Port Harcourt was then the only Judicial Division existing in the entire Rivers State.

As has been shown by Mr. Nwanodi, other judicial divisions were later created. At the very beginning of the proceedings and following the creation of more Judicial Divisions, the case was transferred to the appropriate Judicial Division, that is, the locus situ of the subject matter of the litigation. Hon. Justice D. G. Douglas, sitting at Port Harcourt High Court presided over the case till 26 October, 1976 and adjourned it to 28 March, 1977. On the next adjourned day, that is, 21 March, 1977, the case appeared before the Honourable Justice Dagogo-Manuel sitting at Yenagoa session of Ahoada Judicial Division. It is submitted that this transfer was an internal administrative arrangement of the High Court Registry not having any reference whatsoever to the parties in the case.

On taking over the case, the Honourable Justice Dagogo-Manuel conducted the proceedings at Yenagoa High Court until 8 May, 1978, when out of exigencies of convenience and upon a request made by the parties he transferred the case to the Ahoada High Court and continued with the hearing. The record for 8 May 1978 read –

“Nunieh for plaintiffs

Chief Gabriel- White for the defendants.

Writes for an adjournment on grounds of his engagement at Degema High Court.

Nunieh suggests in view of the age, for a hearing in Ahoada.

Adjourned 15th – 16th June for hearing at Ahoada.

(Sgd.) J. Dagogo-Manuel

Judge 8/5/78”

On the next hearing date 1/12/78, Mr. Justice W.O. Dappa presided. When however, it was suggested to Mr. Justice Dappa by the Respondents in open Court that the case be transferred to Mr. Justice Dagogo-Manuel who part heard it, he consented and made an order asking the Senior Registrar to transfer the case file to Mr. Justice Dagogo-Manuel who was then sitting at Port Harcourt High Court. It was submitted that hearing notices were issued to all the parties. The case came up for mention at the Port Harcourt High Court on 19 February, 1979, and hearing resumed on 25 July, 1979. Defendants/Appellants and their counsel, it is submitted, at no time objected to these transfers, not even on grounds of jurisdiction which they have now raised or on ground of convenience prescribed by the law dealing with transfers.

It is submitted that the appellants voluntarily participated throughout the proceedings until judgment. It is the judgment delivered on 17 June, 1985 by Dagogo-Manuel, J. that is the subject of this appeal.

The Respondents have formulated four issues for determination in this appeal namely:

“1. Whether or not there is more than one High Court in the Rivers State with distinct and exclusive jurisdiction vis-a-vis the clear provision of S.234 of the 1979 Constitution and in view of the decision of the Supreme Court in the case of Ukpai v. Okoro & Ors (1983) 2 S.C.N.L.R. 380 at 388-389.

2. Whether or not the transfer of the case from Ahoada to Port Harcourt Judicial Division on the orders of the Learned Trial Judge was or was not proper in the light of the provisions of S.46 (1) and (2) of the High Court Law of Eastern Nigerian applicable to the Rivers State.
3. Even if held improper, but without conceding, whether any of the transfers mentioned in paragraphs (2) and (3) above amount to such fundamental irregularity that affected the jurisdiction of the Learned Trial Judge sitting at the Port Harcourt High Court and or occasioned a miscarriage of justice.
4. Whether it is not too late for the Appellants at this stage to raise this issue relating to transfer when they had the opportunity at the trial but failed and or neglected to challenge the transfers.”

Mr. Chike Ofodile, S.A.N. submitted that the High Court is a creation of the Constitution of Nigeria 1979. Section 234(1) of the Constitution provides thus:

“There shall be a High Court for each State of the Federation.”

Section 236(1) provides that:

“The High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, privilege, interest, obligation or claim is in issue.”

Learned Senior Advocate submitted that the combined effect of sections 234 and 236 of the Constitution is that there is one High Court for each State with equal, common and unlimited jurisdiction. Although the State High Court has been divided into Judicial Divisions, the purpose is “for the more convenient dispatch of business” of the Court. It is further submitted that the contention of learned counsel for the appellants that –

“The learned Trial Judge had no jurisdiction to continue with the trial of the suit in the Court below without a valid or any order of transfer from the hand of the Chief Judge of the High Court of the Rivers State”

is misconceived and does not represent the true position of the law.

Learned counsel contended that the jurisdiction of a High Court is not ousted from trying a matter merely because the subject of a litigation falls outside the Judicial Division of the particular High Court.

Learned counsel relied on the case of S. O. Ukpai v. U. O. Okara & ors (1983) 2 SCNLR 380, where Eso, J.S.C., at page 388 stated the true position of the law thus:

“It is my well considered view that the High Court of a State is established by the Constitution. S.234 of the Constitution establishes a High Court for each State of the Federation. There is, therefore, only one and not more than that one High Court for each State. S. 236 of the Constitution gives the High Court an unlimited jurisdiction in any civil proceedings involving the existence of a legal right.

Eso, J.S.C. went further at page 390 thus:-

“There is no doubt that it is more convenient for this election petition to be heard in Afikpo, that is, in the Afikpo Judicial Division, that serves the Federal Constituency in question. But then, that is certainly not an issue of jurisdiction, which I have said, is taken care of by S.234…”

At page 391 Eso, J.S.C., continued:

“In my view, the High Court silting at Umuahia was right to have held it had jurisdiction in the matter as there is only one High Court in and with jurisdiction throughout the State. The decision of the Federal Court of Appeal to the effect that there are High Courts of the Judicial Divisions is entirely misconceived.”

Learned Senior Advocate contended that counsel for the appellants did not complain either at the Court below or in their brief and submission before the Court that the transfer amounted to a miscarriage of justice, rather the appellants relied on Order VII Rules 1 and 5 and section 41 of the High Court Law Cap. 61 Laws of Eastern Nigeria 1963 and the case of Okpara Okorji & anor v. Ezekiel Emenimaya & ors FCA/E/83/82 decided on 4 June, 1984.

It is submitted that Order VII Rule 5 is inapplicable to this appeal as it is common ground that at the time the action was instituted in Port Harcourt, the Port Harcourt Judicial Division was the only Judicial Division in existence for the entire Rivers State. The case was therefore commenced in the appropriate Judicial Division. Counsel further submitted that even though Order VII rule 1 specifies the Judicial Divisions in which suits relating to land shall be commenced and determined, the Supreme Court had decided in S.O. Ukpai v. U.O. Okoro & ors (supra) that the issue of Judicial Division is only a matter of convenience and not an issue of jurisdiction and that the decision of the Federal Court of Appeal to the effect that there are High Courts of the Judicial Divisions is misconceived.

It is further contended in the respondents’ brief that section 46 of the High Court Law is not made subject to section 47. In other words, a trial Judge has the power to transfer as Dappa, J. did on 1/12/78, independent of the powers of the Chief Judge. Whether the transfer is under seal or not is an administrative matter which does not invalidate the order of transfer and accordingly a matter of mere procedural irregularity which does not affect the merits of the case, nor does the transfer result in any miscarriage of justice.

Learned Senior Advocate refers to Chief Okumagba Eboh & ors v. O. Akpotu (1968) 1 All NLR 220 at 224 where the Supreme Court observed that:

“It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it is much too late for the other party to complain about such irregularity.”

At page 225 the Court observed as follows:-

“The parties were represented before the learned Chief Magistrate by counsel and counsel for the defendants raised no objection at any time to the procedure at the hearing”.

Another case relied upon by the learned Senior Advocate is Anyaegbu Ojiegbe & ors v. Gabriel Okwaranyia & ors (1962) 1 All NLR 605 at 608 where Brett, F.J. observed as follows:

“Having regard to their acquiescence (i.e. counsel) in the course followed by the Judge, and to the fact that their counsel invited the Judge to make use of his own observations we did not allow the appellants to argue a ground which complained that the Judge did not comply with the principles laid down for the conduct of a view in a criminal case in R. v. Dogbe, 12 WACA 184.”

Now, let me examine the submission of Mr. Nwanodi that Dagogo-Manuel, J. had no jurisdiction to hear and determine the suit at the Port Harcourt Judicial Division after his transfer from Ahoada where the land is situate.

Jurisdiction of a validly constituted Court connotes the limits which are imposed upon its powers to hear and determine issues between persons seeking to avail themselves of its process by reference (1) to the subject matter of the issue or (2) to persons between whom the issue is joined or (3) to the kind of relief sought, or to any combination of these factors. (See STROUD’S JUDICIAL DICTIONARY 4TH EDITION Vol. 3 p.1452).

The answer to Mr. Nwanodi’s submission is to be found in S.234 and S.236 of the 1979 Constitution. There is only one and not more than that one High Court for each State and that High Court is bestowed with unlimited jurisdiction in any civil proceedings involving the existence of a legal right.

There is no doubt that by virtue of section 41 of the High Court Law and Order VII rule 1 of the Rules of the High Court, it is more convenient for the land matter to be heard in Ahoada Judicial Division ‘but as Eso, J.S.C., observed in Ukpai v. Okoro (supra):

“then that is certainly not an issue of jurisdiction which …is taken care of by S.234.”

The case of Ukpai v. Okoro (supra) is, therefore, in point and covers this case even though the matter in controversy in that action was an Election Petition. Sections 234 and 236 of the Constitution are of general application whether land suit as in this case or an election petition as in Ukpai v. Okoro. There is a distinguishing feature in the case of Okpara Okorji & anor v. Ezekiel Emenimaya & 2 ors (supra) which Olatawura, J .C.A., noted at page 9 which for emphasis, I will reproduce again:

“It is not for a Judge to carry with him his part-heard case from his former station to a new station where he has just been transferred.”

Such an action creates suspicion of interest on the part of the learned Judge. This was the point emphasised by Kazeem J.S.C. when the matter reached the Supreme Court in (1987) 3 NWLR page 6 at page 17 when he observed that –

“It is inconceivable what would have been the interest of the trial Judge in carrying a part-heard matter from one Judicial Division to another, instead of letting the matter be commenced de novo after he had left Ahoada Judicial Division”.

Mr. Nwanodi’s submission that the breach of the practice and procedure provided in the High Court Law is fatal to the appeal is not supported by any authority. I have answered that submission earlier on that the provisions of sections 41, 42, 46 and 47 of the High Court Law are directory not mandatory. Dagogo-Manuel, J. may be blamable and punishable if he did not act upon those provisions, but his not acting upon them shall not invalidate what he had done, third persons having nothing to do with it.

(See Middlesex Justices v. R (supra).

Although the relevant sections of the High Court Law create a duty, there is no sanction for its breach, or the mode of compelling the performance of the duty. The provisions to which I have referred are directory and disobedience to the Act does not entail any invalidity.

The arguments canvassed and the discussions already advanced herein may be summarised thus in answer to the issues formulated by both parties.

The learned trial Judge had jurisdiction to continue the trial of the suit when he was transferred from Ahoada Judicial Division to Port Harcourt Judicial Division by virtue of the combined effect of sections 234 and 236 of the Constitution of the Federal Republic of Nigeria in that there is only one

High Court in the Rivers State. This Court is bound not to follow the decisions of its own in Okpara Okorji & anor v. Ezekiel Emenimaya & 2 ors (supra) though not expressly overruled, cannot, in my opinion, stand with the decision of the Supreme court in Ukpai v. Okoro (supra).

The irregularity of hearing and determining the suit at the Port Harcourt Judicial Division does not materially affect the merits of the case or engender a miscarriage of justice; in any case it is much too late for the appellants to complain about such irregularity.

As has been observed, in order to upset the learned trial Judge’s decision, there must be some miscarriage of justice or some violation of some principle or procedure. That miscarriage of justice means such a departure from the rules which permeates all judicial procedure as to make that which happened not in the proper sense of the word Judicial Procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if such proposition be corrected the findings cannot stand.

(See Ezekiel Nnajiofor & 5 Ors. V. Linus Ukonu & 2 ors (1986) NWLR 505, 517.)

The appellants have acquiesced in the course followed by the learned trial Judge by hearing the suit first at Ahoada and completing it at Port Harcourt all in the Rivers State. The parties were represented by counsel before the learned trial Judge and counsel for the appellants raised no objection to the procedure at the hearing. The appellants have waived any right not being a matter of jurisdiction to complain at this late stage. The question of waiver in the present suit does not relate to a right in the control of the State or in the sale control of the Court. It is a right which is in the sole control of the Appellants whether the suit should be heard in the Port Harcourt Judicial Division or in the Ahoada Judicial Division.

(See R. Ariori & ors v. Muraino B.O. Elemo & ors (1983) 1 S.C. 13, 69)

In the result, the appeal fails and it is accordingly dismissed. I award N400.00 costs to the respondents against the appellants jointly and severally.

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Other Citations: (1988) LCN/0058(CA)