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AJAKA IZENKWE AND OTHERS
V.
ONYEMUCHE NNADOZIE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
5TH DAY OF NOVEMBER, 1953
APPEAL NO. 145/1953
2PLR/1953/45 (WACA)
OTHER CITATION(S)
2PLR/1953/45 (WACA)
(1953) XIV WACA PP. 361 – 363
LEX (1953) – XIV WACA 361 – 363
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J. A.
DE COMARMOND, S.P.J., NIGERIA
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BETWEEN:
1. AJAKA IZENKWE
2. EZEKWE AMAESHI
3. ABAKWAM AZIKE
4. ASHARA AKANZU
5. AKANEME EBOSHIE REPRESENTING THE PEOPLE OF UMUOKUKO-AKAOKWA – Appellants
AND
ONYEMUCHE NNADOZIE REPRESENTING THE PEOPLE OF UMUAKPAKA OFEKE OSINA – Respondent
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ORIGINATING COURT(S)
Appeal by defendants against decision of Supreme Court
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REPRESENTATION
J.I.C. Taylor, with Ibekwe and Ojiako — for Appellants
F.R.A. Williams, Emejulu with — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Trespass on communal land – Claim for damages and an injunction – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
JURISDICTION:- Supreme Court Ordinance, section 11 and Proviso to section 12 – Whether claim in trespass raises issue of title to land – Plaintiffs with judgment for title
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CASE SUMMARY
(For the purposes hereof, the above section 11 confers complete original jurisdiction on the Supreme Court but the proviso to section 12 forbids its exercise where the suit raises an issue of title to, or an interest in, land which is subject to the jurisdiction of a Native Court, unless the Governor otherwise orders or the suit is transferred from the Native Court.)
The plaintiff (respondent above) sued in the Supreme Court in trespass claiming damages and an injunction and averring a trespass on land of the plaintiff and his people known as “Alaike” and awarded them in a certain suit against the first defendant (first appellant above) and others, the area trespassed on being shown on a plan. The defendants (above appellants) denied the claim and averment and reserved to themselves the right to raise every pertinent defence possible.
The evidence for the plaintiff left no doubt that he and his people owned “Alaike”, which had an ancient ditch as boundary separating it from the defendants’ land. The evidence for the defendants did not deny that the plaintiffs had won about the “Alaike” land but they said that the ditch marked the plaintiffs’ southern boundary and that the area on which the plaintiffs complained of trespass was within the defendants’ land known as “Kpokokpo”. The trial Judge held that the defendants were calling by another name an area which was part of “Alaike” land and gave judgment for the plaintiffs.
The defendants appealed and argued that though they had not pleaded to the jurisdiction, the trial Judge ought to have declined to hear the suit when it became apparent that they disputed the plaintiffs’ ownership of the land mentioned in the claim.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
The defendants had not pleaded to the jurisdiction, nor could they have raised any genuine issue as to title, as that had been settled in earlier litigation. The sole issue was one of fact-whether the area on which the plaintiff complained of trespass was or was not part of “Alaike” land for which he had obtained judgment of ownership.
Case cited:-
(1) Abotche Kponuglo and Others v. Adja Kodadja, 2 W.A.C.A. 24 (P.C.).
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
This appeal raises the question whether the Supreme Court rightly exercised jurisdiction in an action for damages for trespass and an injunction to restrain further trespass or whether the proceedings and judgment in the plaintiff-respondent’s favour are a nullity for want of jurisdiction. By his writ of summons which was instituted in the Supreme Court, Aba Judicial Division, the plaintiff-respondent claimed damages and an injunction to restrain further entry upon the land the subject of the trespass. Paragraph 3 of his statement of claim sets out the trespass complained of ” upon land of the plaintiff and his people of Osina known as Alaike Uhuogwugwu awarded to them in the Mbanasa Native Court suit No. 86/46, Onyemuche Nnadozie of Osina (the plaintiff) v. Ajoka Izekwe (the first defendant) and others of Akorkwa “. Paragraph 4 states that the area trespassed upon is described on a plan filed in the suit. The defendants-appellants by their defence denied paragraphs 3 and 4 of the statement of claim and put the plaintiffs to strict proof of every allegation therein contained and concluded in these words: “The defendants deny the plaintiff’s claim and aver that they are not entitled to their claim. And the defendants reserve to themselves the right to raise any legal or equitable defence pertinent to the issue”.
The plaintiff testified in support of his claim to the existence of an Ekpe, an ancient trench or ditch which separates his land from the defendants’ land. He produced judgments of the Native Courts against the defendants, the first in date having been confirmed by the District Officer and finally by the Chief Commissioner, placing beyond question the plaintiff’s title to Alaike land and the boundary at the trench or ditch referred to.
The defendants’ evidence amounted to an admission that they had contested with the plaintiff unsuccessfully the title to Alaike and that they had then left the land but they contended that the trench or ditch set up by the plaintiff marked the plaintiff’s southern boundary of Alaike with the defendants’ and that what the plaintiff alleged was a trespass on Alaike land was the lawful occupation by the defendants within their boundary of their own land which they called Kpokokpo land. On the evidence before him the trial Judge had no difficulty in holding that what the defendants called Kpokokpo was in fact Alaike land; ” the same old argument,” he found, ” is adopted by the defendants calling the land of plaintiff’s theirs, by giving it another name”. When in 1948 the plaintiff had sued the defendants in the Native Court for an order of ejectment from the same land (exhibit E) the Native Court, after inspecting the land, held it to be the Alaike land which the plaintiff had already established title to in the action commenced in the Native Court in 1946 (exhibit B) and which had terminated in his favour in the Chief Commissioner’s Court in 1948, and further that the defendant had told lies to the Court by calling the land by another name. The learned trial Judge referred to these proceedings in his judgment. He found the trespass proved, awarded £10 damages against each of the second, third and fourth defendants and granted the injunction prayed.
From this judgment the defendants appeal on the ground that the Supreme Court had no jurisdiction to hear and determine the suit because the issue of title to land was raised by the defendants.
By section 11 of the Supreme Court Ordinance, the Supreme Court of Nigeria possesses and exercises all the jurisdiction, powers and authorities which are vested in or are capable of being exercised by His Majesty’s High Court of Justice in England. So far as it is relevant to the issue section 12 of the Ordinance prohibits only the exercise of that original jurisdiction in any suit which raises any issue as to the title to land or as to the title to any interest in land which is subject to the jurisdiction of a Native Court.
It is submitted for the appellants that it is clear from the claim, the pleadings and the evidence at the hearing that an issue as to title to the land was raised and that it was therefore obligatory on .the trial Judge, even though the defendants did not plead to the jurisdiction of the Court, to decline jurisdiction and to refer the parties to the Native Court as soon as it became apparent to the Court that the defendants disputed the plaintiff’s ownership of the land in the writ of summons mentioned. In support of his argument that title to land was in issue the appellant’s counsel cites a passage in the judgment of the Privy Council in Abotche Kponuglo and OtheYs v. Adja Kodadia (1) which reads, “The respondent’s claim being one of damages for trespass and for an injunction against further trespass, it follows that be bas put bis title in issue”.
The statement cited cannot be questioned as a proposition introductory to the legal principle which is stated in the next passage of the Privy Council’s judgment, namely “that the onus is upon the plaintiff to demonstrate beyond reasonable doubt that the title to the disputed land is in him”.
In the present case however, the position is, in our opinion, entirely different not only owing to the litigation that bad already taken place between the parties but also owing to the issues actually before the Court. In the first place it is a fundamental principle that jurisdiction is determined by the plaintiff’s demand and not by a defendant’s answer which, as in this case, only disputes the existence of the claim, but does not alter or affect its nature. In other words, ordinarily it is the claim and not the defence which is to be looked at to determine the jurisdiction.
Is there anything then in the present suit which should override this principle and compel the Court to hold that the prohibition in section 12 of the Supreme Court Ordinance is a bar to the exercise of the Court’s jurisdiction? The point is, was a bona fide issue of title raised by the defence? Looking at the pleadings it will be observed that in support of his claim in trespass the plaintiff pleaded the fact that his title to the land had been settled, but he did not set out his title in the Supreme Court so that it would be put in issue.
A perusal of the defence filed satisfies us that while the fact that the plaintiffs had obtained the judgment in the Native Court pleaded in paragraph 3 of the statement of claim was denied by the defence and the defendants reserved to themselves “the right to raise any legal or equitable defence pertinent to the issue”, they not only failed to plead a title in themselves, but they also failed to plead the jurisdiction of the Court, either in the defence as they should have done, or at the trial.
It seems to us that the defendants raised one issue of fact only in the course of the hearing, namely whether the land for which the plaintiffs had obtained a judgment determining title was Alaike land as the plaintiff claimed, or Kpokokpo land as the defendants suggested. This was decided against them. By the defence filed they traversed two issues only, firstly the fact that the plaintiff had obtained the judgment referred to in the Supreme Court and secondly the trespass alleged. On both these issues the Court also found against them.
It is clear from the earlier litigation that the issue of title had been settled. No issue of title appeared on the face of the pleadings and no bona fide claim of title was raised or could genuinely be raised at the trial. The action was as much a suit in personam as an action for damages for nuisance to property and for an Injunction to restrain the nuisance. It would be a farce to oblige the plaintiff upon each trespass to re-establish his title to the land.
We therefore hold that the Supreme Court properly exercised its original jurisdiction over the suit in the form in which it came before the Court and we dismiss this appeal with costs.
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VERITY, C. J.
I concur.
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DE COMARMOND, S. P. J.
I concur.
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Appeal dismissed.
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