3PLR – BENJAMIN V. BANIGO

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BENJAMIN

V.

BANIGO

FEDERAL SUPREME COURT OF NIGERIA

23RD JUNE, 1959.

F.S.C. 86/1958.

3PLR/1959/33 (SC)

BEFORE THEIR LORDSHIPS:

MYLES JOHN ABBOTT, AG. F.C.J. (Presided and Read the Judgment of the Court)

LIONEL BRETT, F.J.

LOUIS NWACHUKWU MBANEFO, F.J.

BETWEEN

CHIEF BENJAMIN OF AGANNA & 13 OTHERS

(for themselves and on behalf of the Chiefs and people of Alabie and Ngo)

AND

1. CHIEF F.D.F. BANIGO
2. CHIEF B. EZEKIEL HART

(for themselves and on behalf of the Chiefs and People of Bonny)

MAIN ISSUES

EVIDENCE – Admissibility – Plan not counter-signed – Effect.

PRACTICE AND PROCEDURE – Representative action – Failure to obtain leave – Effect.

GOVERNMENT/ADMINISTRATIVE LAW – SURVEY: Plan not counter signed by Director of Surveys – Section 23 Survey Ordinance, 1952. – effect on party’s assertion of title

REAL ESTATE: Declaration of title over land – plan of land not counter-signed by Director of Surveys – effect thereof

REPRESENTATION:

Mr. Briggs -for the Respondents.

Dr. Udo Udoma -for the Appellants.

MAIN JUDGMENT

ABBOTT, AG. F.CJ.(Delivering the judgment of the Court):

This is an appeal from the judgment of Dove-Edwin, J. given at the High Court, Port Harcourt, on 16th August, 1957. By that judgment the respondents were awarded a declaration of title to certain areas in the Degema Division of the Rivers Province of the Eastern Region. The respondents also claimed dam­ages for trespass and in this they were unsuccessful, the learned trial Judge not being satisfied that trespass was proved. The third head of the respon­dent’s claim was for an injunction to restrain the appellants from trespassing on the areas in dispute, and this was granted.

The areas in dispute, are ten in number and consist of “lands, islands, creeks, swamps and fishing ports.” They were referred to by the respondents and by the learned trial Judge in his judgment as “The Territory.”

The respondents are the Chiefs and leaders of Bonny and sued, for themselves and on behalf of the Chiefs and people of Bonny, the appellants who are the Chiefs and leaders of Andoni. In their statement of claim, the respondents sought to sue the appellants representing the Chiefs and people of Andoni, but as the appellant never sought or obtained leave to sue in a representative capacity, they must be regarded as having been sued in their respective personal capacity and the judgment of the Court below is effec­tive against them only in that capacity. Indeed, respondents’ Counsel con­ceded as much during the hearing of the appeal.

This concession arose from the first additional ground of appeal which correctly alleges that the title of the suit in the particulars of claim annexed to the writ says that the appellants were sued as representing the Chiefs and people of Alabie & Ngo while in the same place on the statement of claim they were said to be sued as representing the Chiefs and people of Andoni. From what I have said in the preceding paragraph it will be seen that this dis­crepancy, if indeed it is one, is quite immaterial.

Respondents’ counsel, in making the concession referred to, submitted that this point should have been raised in the Court below. With this I am in full agreement. Additional ground 2 reads as follows:­

“Inadmissible evidence was wrongly admitted and relied upon by the court to wit, the plaintiffs plan of the land in dispute which failed to comply with sec.

23(1) (ii) of the Survey Ordinance 1952.”

The appropriate part of the section reads:­

“23(1)         No map, plan or diagram of land –

(b)     …… shall, save for good cause shown to the court, be ad­mitted as evidence in any court, unless the map plan or diagram

(i)      has been prepared and signed by a surveyor….. and

(ii)     has been examined by the Surveyor Department and bears the counter-signature of the Inspector General.”

Appellants’ counsel had to concede that this point was not taken, as it should have been, in the court below, but submitted that the judgment ap­pealed from having been based upon the plan, he was entitled to raise the question on his appeal. We were not entirely satisfied of the soundness of this submission but, in order not to shut out the appellants from raising the respondents non-compliance with a statutory provision as to the admissibil­ity of evidence, we allowed the point to be argued. It was quite clear that the plan had not been counter-signed by the Director of Surveys, Eastern Reg­ion. It is also clear from section 23 of the Survey Ordinance 1952 that the counter signature is not a guarantee of the accuracy of the plan and the only reason for it, I imagine, is as stated by Mr. John the Surveyor, namely, as a counter check on the signature of the Surveyor. If the issue of counter signa­ture had been raised in the court below it would have been open to the trial Judge to adjourn the hearing in order to get the plan counter signed. In view of the expenses which would be occasioned by our having to send the case back merely for that reason and since no objection had been taken to the ad­missibility of the plan at the trial, we decided to adjourn the appeal in order to give the respondents the opportunity of having the plan counter signed by the Director of Surveys. This was duly done and on the resumption of the ap­peal we granted the respondents leave to call the surveyor, Mr. John, to re­tender the plan formally. It was then duly admitted. That disposes of addi­tional ground 2.

Counsel for the respondent was called upon only as regards additional grounds 1 and 2.

Additional ground 3 quotes two passages from the judgment of the court below and brackets them together, alleging that they together consti­tute a misdirection. A glance at the judgment shows that therein these two passages are widely separated. Appellants’ counsel said it was not his inten­tion to bracket them together but, it is my view that, taken either together or separately, they do not constitute any misdirection.

The original grounds, which were renumbered 4 and 5 were argued to­gether, but as above indicated, we did not find sufficient substance in the submissions of appellants’ counsel to require respondents’ counsel to ad­dress us thereon. In my opinion the learned trial Judge came to a correct de­cision on the facts before him.

I have now dealt with all the grounds of this appeal which I would dis­miss with costs to the respondents assessed at 2 50  .

It is only necessary to add, for the avoidance of doubt, that the judg­ment of the court below, which, as above ice, I would uphold, was given and is effective against the fourteen appellants in their respective per­sonal capacities, and that qualification applies also to the judgment of this Court.

Appeal Dismissed.