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

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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)