3PLR – ADANI & ANOR V. IGWE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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ADANI & ANOR
V.
IGWE
FEDERAL SUPREME COURT OF NIGERIA
30TH DECEMBER, 1957.
-
S. C. 27/1957
3PLR/1957/5 (SC)
BEFORE THEIR LORDSHIPS:
SIR STAFFORD FOSTER SUTTON, F.C.J. (Presided)
M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)
MYLES JOHN ABBOTT, F.J.
BETWEEN
AND
MAIN ISSUES
PRACTICE AND PROCEDURE – COURT – Jurisdiction – Absence of at the filing of action – Conferment of at the time of trial – Attitude of Court.
PRACTICE AND PROCEDURE – COURT -Jurisdiction – Issue of title – How determined.
PRACTICE AND PROCEDURE – JURISDICTION – Absence of at time of commencement of action- Conferment at trial – Attitude thereof
LAND LAW – Trespass coupled with injunction – Whether title in issue.
PRACTICE AND PROCEDURE – Issue of title – How resolved.
REPRESENTATION
- N. A. Okafor, for the Appellant.
Respondent not represented by Counsel.
MAIN JUDGMENT
NAGEON DE LESTANG, F.J.:
This is an appeal from a decision of the High Court of the Eastern Region at Port Harcourt (Betuel Ag. J.) striking out the plaintiffs’ action on the ground that the Court had no jurisdiction to try it, in the following circumstances.
In July 1955, the plaintiffs instituted proceedings in the Port Harcourt Judicial Division of the then Supreme Court of Nigeria wherein they claimed damages for trespass to land and an injunction. On the pleadings the plaintiffs’ case was that their father had pledged a piece of land to the defendant’s father, that in Elele Native Court Suit No. 1173/1950 between the first plaintiff and the defendant the Court declared the pledge redeemed, since when the plaintiffs have been in possession of the land, and that subsequently the defendant and his servants and agents entered upon the land and collected palm nuts thereon.
The defendant, by his defence, denied the pledge and alleged that the Elele Native Court judgment had been set aside. He claimed to be the owner of the land.
The learned Judge held that the pleadings raised an issue as to title to land subject to the jurisdiction of the Elele Native Court and that by virtue of the proviso to section 12 of the Supreme Court Ordinance (Cap. 221), he had no jurisdiction to try the suit. He accordingly struck it out and it is from this order that the plaintiffs have appealed.
It seems to me that generally speaking a claim for damages for trespass coupled with a claim for an injunction against future trespass does put the title to the land concerned in issue, but this is not always so. Whether it is or not depends on the particular circumstances of each case. For instance, in Ajaka Izenkwe and Others v. O. Nnadozie 14 W.A.C.A 361, it was held that a claim for trespass and for an injunction did not in that case raise an issue as to title. In every case it is necessary to examine the pleadings to ascertain what the real issue in the case is. Looking at the pleadings in the present case, which I have summarized earlier on in this judgment, it seems to me that the plaintiffs were not putting their title in issue. They were merely averring that title to the land concerned had been finally settled in the Native Court case. It is true that the defendant claimed ownership of the land and disputed the conclusiveness of the Native Court judgment, but nevertheless the real question which the Court had to decide was not whether the plaintiffs were the owners of the land, but whether their title to the land had been finally decided in the Native Court case. It follows, therefore, that the action did not fall within the ambit of the proviso to section 12 of the Supreme Court Ordinance.
There is another reason why, in my view, the Court had jurisdiction in the present case. The Supreme Court Ordinance ceased to apply to the Eastern Region of Nigeria on the 31st December, 1955, when the Eastern Region High Court Law came into force, It is not in dispute that under that law the High Court has jurisdiction to try cases involving title to land. Assuming that when the pleadings were closed, the then Supreme Court had no jurisdiction to try the action, it is clear that when the case came up for trial before the High Court in September, 1956, that Court was invested with jurisdiction to try ii. What is the Court to do in such a case? Is it to decline jurisdiction merely because it had no jurisdiction when the case was started and thus put the parties to the expense of beginning all over again? In my view, this would be not only unreasonable, but wrong in law. I have always understood the position to be that so long as a Court acquires jurisdiction before delivering judgment, its decision cannot be attacked on the ground of want of jurisdiction. Consequently, the time to decide whether the Court has jurisdiction or not is when the point is taken, which in the present case was at the trial, and since at the trial the High Court clearly had jurisdiction to try the case, the learned trial Judge erred, in my view in holding that he had no jurisdiction.
I will accordingly allow this appeal and set aside the decision of the court below, including the order for costs. I would remit this case to the court below with the direction to proceed with the trial thereof. I would allow the appellants the cost of this appeal fixed at £50.
Foster Sutton, F.C.J.: I concur.
Abbott, F.J.: I concur.
Appeal Allowed.
