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FSC. 295/1960

30TH JUNE, 1961.

3PLR/1961/28  (FSC)

                                                                                                                                                                  OTHER CITATIONS

3PLR/1961/28  (FSC)





JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Lead Judgment)














EVIDENCE – Admissibility – Relevant yardstick – Irrelevant evidence inadmissible.


EVIDENCE – Cross-examining witnesses of parties whose interests are not in conflict – Propriety of.


EVIDENCE -INTERPRETATION OF DOCUMENTS: Need to read documents together – Documentary evidence – Admissibility of memoranda of acts and oral transactions relating to land.


EVIDENCE: Onus of proof – Civil proceedings – Preponderance of evi­dence.


LAND LAW -DECLARATION OF TITLE: Whether Court can make a declaration over an undefined area of land in dispute – Elements of proof required to succeed in a claim for injunction


LAND LAW – TRESPASS: Alleged removal of pillars from land in dispute – Criminal connotation of allegation – Need to prove same.


PRACTICE AND PROCEDURE – COURT – CONSOLIDATION OF SUITES: Policy and guidelines governing consolidation of suits.

PRACTICE AND PROCEDURE -COURT: Application of wrong procedure – When it will not vitiate proceed­ings.


PRACTICE AND PROCEDURE – Parties – Interests not in conflict – Whether. they could cross-examine each other’s witnesses.


PRACTICE AND PROCEDURE-Rules of court- Purpose served by Rules of Court and need to aim for justice.


STATUTES – Surveys Ordinance – Section 23(1)(6) – Plans and sketches of land – Consideration for admissibility thereof.


TORT – TRESPASS: Onus of proof and standard of evidence required to establish it.



Chief F.R.A. Williams, Q.C. and R.A. Fani Kayode, Q.C. (E.O.Araka with them) – for the Appellant.

K.A. kotun (Messrs. F.O. Anyaegbunam and G.E. Ezeuko with him) – for 1st Respondent.

M.O. Oseni (N.N. Anah with him) for 2nd Respondent.



TAYLOR, F.J.: (Delivering the Lead Judgment):

This is an appeal from the judgment of Reynolds, J. of the High Court of the Onitsha Division. The appeal involves three suits which were consolidated at the trial, and it is as well to set out at this stage their history.


On the 14th February, 1957 an action suit No. 0/19/57 was instituted be­tween the following as plaintiffs and defendants, to wit: –


Ajana Enwelum Robert Nwekeze

(For themselves and on behalf of people of Agbudu Nando.)


Nnaegbo Akweze Chinweze Ejiofor Uzodigwe Malika

(For themselves and on behalf of people of Abube Nando.)


The claims were for (i) a declaration of title to land known as “Ago Okpu Am”; (ii) damages for trespass committed by the defendants and (iii) an injunction to restrain further trespass. Before the hearing date suit 0/31/57 was filed. This was an action between the following parties: –


Uzodigwe Nadika Udoli Igweze Nneli Anekwe Egwonu.

(For themselves and on behalf of Abube Nando)

Nnanwuba Aziegbu Ifediora Agbaziuno Emesim Enendu Anaefuna Onyekwe Obidigwe Uyamedu.


Though the defendants were, on the face of it, sued personally, it is pleaded in the Statement of Claim that they were sued “for themselves and on behalf of the people of Agbudu Nando and this paragraph of the Statement of Claim is admitted by paragraph 1 of the Statement of Defence. The claim was for the sum of £400 being damages for the trespass alleged to have been committed on the plaintiffs’ land known as “Ofia Abube”. An order for an injunction to restrain further trespass was also sought. On the 7th October 1958 the question of consolidation of the above two suits was considered and Mr.. Araka, who appeared for the people of Abube Nando, is recorded as saying that:­


“While I am not at the moment opposed to consolidation I should like an opportunity of further consultation with my clients……”


The matter came up again for mention on the 26th May 1958 and Mr. Araka stated that:­


“There is a cross action (0/19/57) and consolidation is possible.”


An order for consolidation was however made at a later stage, although it was by that time opposed by Mr. Araka on behalf of the defendants in 0/19/ 57.


On the 23rd March 1957 suit No. 0/32/57 was filed and the parties were as follows:­


Victor Ekwealor      (For himself and on behalf of Umuawu) (Family of Nando.)


Ajama Aduaka. Onwuegbuke Egenti Egwuonwu Egbili (For themselves and on behalf Nneli Anakwe (of the Abube Ibinagu Family Ekweoba Arinze (of Nando.) Uduobu Igweze Ogugua Ugboaja


The suit was for a declaration of title to land known as “Odo Ubiri” (or Ok­pobiri). On the 6th August, 1959 this suit was consolidated with the two al­ready consolidated, Mr. Araka still opposing on behalf of his clients, and the following are the recordings of the trial Judge as to the procedure to be adopted:-


“Agreed that plaintiffs in 0/19/57 should start and close his case; then plaintiffs in 0/32/57 to start and close and finally plaintiffs in 0/31/57 to start and close.”


The hearing then proceeded as recorded. I shall from henceforth refer to the parties as the people of Agbudu (plaintiffs in 0/19/57); the people of Umuawu (plaintiffs in 0/32/57) and the people of Abube (plaintiffs in 0/31/ 57), for they are the three principal parties to this appeal. The people of Abube are the appellants and the others are the respondents.


Against the judgment in favour of the people of Agbudu and Umuawu nine grounds of appeal were filed and leave was obtained at the hearing to file and argue four additional grounds. I shall deal firstly with the additional grounds and those of the original which touch on the same matter.


The first of both sets of grounds of appeal attack the order for consoli­dation of the three suits. Chief Williams for the appellants contended that consolidation should not have been ordered for the following reasons:


  1. That the cases were not such that each cause of action could prop­erly have been on the same writ.


  1. That the plaintiff in one action was the same person as the defen­dant in the other.


  1. That the order was prejudicial to the appellants for it was exer­cised in such a way as to enable opposing Counsel to ask leading questions from witnesses testifying favourably to that party and against the appellants.


  1. That consolidation was wrong in principle.


By Order 11 r.7 of the Eastern Region High Court Rules 1955 it is provided that:­


“Causes or matters pending in the same Court may by order of the Court be consolidated, and the Court shall give such direc­tions as may be necessary with respect to the hearing of the causes or matters so consolidated.”


This rule is substantially the same as Order 49 r. 8 of the Rules of the Sup­reme Court of England. The general principle, if one can say that such exists, for Slesser L.J. in Bailey v. Curzon of Kedleston, 1932 2 K.B. 392 at 401, quotes from the 1932 Yearly Practice of the Supreme Court to the effect that the cases disclose no principle, may be found in the judgment of Scrut­ton L.J. at page 399 of the same report where he says that:­


“Much greater latitude is allowed in making these orders, with the object of avoiding multiplicity of actions and, where various interests in one common subject matter are involved all the par­ties concerned, within reasonable limits, may now be joined as parties so that the Court may adjudicate upon their various rights and interests. Consequently Lee v Arthur 100 L.T. 61 has ceased to be a binding authority, together with a number of other cases which decided that certain parties and causes of action could not be joined in the same writ………..”


The same principle is stated in similar terms in the 1961 edition of the An­nual Practice at page 1185 as follows;­


“The main purpose of consolidation is to save costs and time, and therefore it will not usually be ordered unless there is “some common question of law or fact bearing sufficient importance to the rest” of the subject matter of the actions “to render it desirable that the whole should be disposed of at the same time.”


In the matter before us I would refer to some paragraphs in the plead­ings in all the suits as showing that it was desirable in order to save time and costs that consolidation should have been ordered, and that there was a com­mon question of fact running through all these three suits. It is averred in paragraphs 4 and 5 of the Statement of Claim in 0/19/57 as follows:­


“The plaintiffs and defendants are children of Ikenga Nando who had three children, Agbudu, Umuawo, and Abube. Of all the three children Agbudu was the eldest and took the first share, of the Ikengaland.”


“The plan filed by the plaintiffs in this action correctly shows the portions of Ikenga land acquired by the three children of Ikenga.”


As will be seen from these paragraphs, the parties to this appeal whether as individuals or groups derive their interest from their common an­cestor Ikenga. Paragraphs 9 and 10 as amended, and 11 and 12 show that from 1917 there have been disputes between all three branches of this family as to the area of Ikenga land rightly owned by them. The Abube people in their Statement of Defence admit that all the three parties are descended from Ikenga and they also refer to the disputes between them. Much the same facts are pleaded in 0/31/57 and I would here refer only to paragraph 10 of the Statement of Claim of Abube people which states that;­


“Quite recently, i.e. early this year, the defendants (Agbudu) acting in concert with Umuawu conspired with the plaintiffs’ ten­ants Achalla Nteje to dispossess the plaintiffs of the greater part of their land………..”


The same averment is contained in the Statement of Defence of the Abube people in 0/32/57. These actions in my view were to decide the extent of the boundaries of each of the three branches of this family and in my view no grounds have been shown for saying that the trial Judge exercised his discre­tion wrongly.


Chief Williams further contended that the procedure adopted by the trial Judge after consolidation was prejudicial to the appellants for the reason already stated. I have given this matter the full consideration it de­serves and can find nothing in the cross-examination by Umuawu of the wit­nesses of Agbudu that could be said to have in any way been prejudicial to the interests of the appellants. As I have remarked earlier Counsel agreed to the procedure to be adopted and it should be noted that throughout the case for Agbudu no objection was raised to the cross-examination of Agbudu people by Counsel for Umuawu. It was when Umuawu called their witnesses (two in number) that Counsel for Abube raised objection and then asked for the earlier cross-examination of witnesses for Agbudu to be deleted from the record. My remarks about there being no prejudice to the appellants from the cross-examination of Agbudu applies equally to the cross-examination of Umuawu by Agbudu. I do concede that the procedure adopted by the trial Judge in this matter was wrong. The proper procedure was to have directed that the parties whose interests were not in conflict, that is, the people of Agbudu and Umuawu, were not entitled to cross-examine each other’s witnes­ses, but must adopt them as their own witnesses if they wished to put ques­tions to them, and to allow the Abube people only, a right to cross-examine the witnesses of both Agbudu and Umuawu. As it is, considering the pro­ceedings as a whole, I am not prepared to say that any injustice has been oc­casioned thereby and this ground of appeal must be dismissed.


The second ground of the additional grounds alleges misdirection by the trial Judge in admitting exhibit “C” as an agreement between the parties because (1) such agreement did not comply with s.23 of the Survey Ordi­nance; (2) the people of Abube were not parties to it; (3) it did not comply with the Land Registration Ordinance and finally, because reliance was placed on it by the people of Agbudu in their Statement of Claim as an arbit­ration according to Native law and Custom. The first and third objections are also taken to the admission of exhibits “D” and “E” in grounds 3 and 4 of the additional grounds and it would be convenient to deal with these points at once in respect of all these documents. In the case of exhibit “E”, there is nothing in the wording of the deed to show or indicate that there was any transfer of land or interest in land to bring it within the definition of an in­strument as defined in s.2 of the Land Registration Ordinance Cap. 108. The words used clearly indicate that the document was no more than a written expression of a boundary demarcation made by the District Officer on the 7th April, 1917, and an agreement by the parties to be bound by such demar­cation. But, be that as it may, all these documents should be read together. They are all made on the 7th April, 1917 with the exception of the 2nd folio to exhibit “D”, which was made some fifteen months later by T. G. Lawton, another District Officer, confirming the boundary struck on the 7th April, 1917. These documents were also made by the same District Officer Mr.. Gardner. These two District Officers, on the notes of the trial Judge as to the admissions made by Counsel, are out of Nigeria, and the parties to the docu­ments, on the evidence of Ajana Enewelum in 0/19/57, are all dead. The documents are evidence of transactions which, like most dealings in land under Native Law and Custom at the time, of their making, were made or­ally, are admissible as memoranda of the past ads and oral transactions be­tween the parties, recorded by responsible officers relating to the ownership of Ikenga land dating back to 1914. Some of these documents bear refer­ences to Native Court cases and in one instance to admissions made by the warrant chief of Abube before the District Officer who prepared the docu­ments. They were all made with a view to their user in the Native Courts and to shut them out when they have been acted upon for the past 40 years would in my view work more injustice than prevent injustice. However, as I have said earlier, they were in law admissible for the reasons given. There is, how­ever, a further objection raised to these documents, for Counsel urged that the plans or sketches contained in “D” and “E” do not comply with the Sur­veys Ordinance and are therefore inadmissible in evidence. The relevant section of this Ordinance is 23(1)b) and it provides that:­


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


(b)     if prepared, in the case of land in the Eastern or the Western Re­gion, after the 20th day of October, 1997, or, in the case of land in the Northern Region, after the 16th day of May, 1918, shall, save for good cause shown to the Court, be admitted in evidence in any Court, unless the map, plan or diagram………….. is prepared and signed by a surveyor and countersigned by the Director of Surveys.


I am not here expressing an opinion that these sketches do come within this section of the Ordinance, but that if they do then the trial Judge has a discre­tion in the matter by the use of the words I have outlined above. I am of the view that if this objection had been taken in the lower Court the trial Judge could for good cause shown, admit the sketches on the documents. The good cause is the matters I have already dealt with when dealing with the admis­sion of the documents themselves.


I shall now deal with the separate matters raised in these three grounds, which are not common to all of them. In ground 2(c) it was argued that the Abube people were not parties to exhibit “C”, but, as I have said, exhibits “C” and “D” should be read together for the matter on appeal relates to the boundaries between these three related villages or groups. There is no sub­stance in this ground or in 2(a) which alleges, in effect, that the ground on which the trial Judge admitted exhibit “C” is different from that relied on in the Statement of Claim. The document was pleaded and the facts therein contained were also pleaded. For the reasons I have given as to the admissi­bility of this document, this ground of appeal no longer serves any useful purpose and it is dismissed. This also applies to ground 3(b). Finally, it is urged that exhibit “E” is irrelevant and should not have been admissible. With this I must agree and so it would appear did the learned trial Judge, for no mention is made of it in his judgment and therefore no reliance was placed on it in arriving at his decision.


I now come to the original grounds. Nos. 1 and 2 have been dealt with, 7 and 8 were abandoned and 9 was not given any separate treatment by Counsel. It was urged on ground 3 that the area of land awarded to the Umuawu people and known as “Odo Ubili” was not precisely defined. When one looks at the plan exhibit “A” one must concede that the western boundary of this area has no defined features. The trial Judge would seem to be of the same view, but granted a declaration of title for the reasons con­tained in the following passage of his judgment, where he says that:­


“With regard to Umuawu’s claim he (Mr. Araka) says that the Court has no jurisdiction to make the declaration of title sought because even if the Court accepts the eastern boundary as de­scribed by the witness and set out in exhibit “A” that the western boundary has not been accurately described in evidence or de­lineated in exhibit “A”. Mr. Emembolu for Umuawu relied on a recent decision in the Federal Supreme Court suit 171/58 for the proposition that where the area in respect of which a declaration of title was claimed is admittedly within land owned by a plaintiff such declaration may be granted even though the area is not pre­cisely defined. The case cited appears to support that proposi­tion; in any event I am prepared to hold that where the part of the boundary which is not precisely defined is admittedly within the land of the claimant he is entitled to a declaration of title.”


With respect to the trial Judge the judgment of this Court in suit 17/1958 in no way supports the contention of Counsel or the view held by the trial Judge. That suit was a case in which the area claimed and known as “Ogundo Umuokwe” and edged green on the plan tendered was larger than the area to which the declaration of title was granted. The extent of the larger area was not shown but that of the smaller area edged pink in respect of which the declaration of title was granted was shown. The judgment of this Court reads as follows:­


“On reading the plan, however, with the evidence in the Court below it was pointed out, and Counsel for the plaintiff/appellant agreed, that the claim for a declaration of title in this case was li­mited to the area edged pink on the plan, exhibit “I”, which is the area the defendants/respondents were disputing with the plain­tiff/appellant;…….”


“Mr. Mojekwu for the defendants/respondents admits the con­tention of the appellants that the Amagu people, including the present five defendants, who are sued personally, were “invited” by the appellant’s people to stay on different portions of their land shown in the plan, exhibit “A”. In view of this admission it was not possible for him to resist the appellant’s claim for a decla­ration of title to the land edged pink.”……………


“In the circumstances, this appeal will be allowed in so far as it re­lates to the matter of a declaration of title to the land edged pink in the plan, exhibit `I’.”


Apart from the point of differentiation already referred to above it will be seen from these passages that the respondent conceded the point in issue during the hearing of the appeal. In my judgment, the trial Judge erred in granting a declaration of title to the people of Umuawu in respect of an un­defined area of land. To that extent the judgment must be set aside.


On the claim for trespass and injunction the trial Judge held that:


”Although there is no direct evidence that Abube people re­moved the pillars they appear to me to be the only persons who could benefit by their removal and accordingly in the cir­cumstances I find that they did so remove them. I assess the dam­ages for such wrongful removal at £55 and make an order rest­raining the Abube people from interfering with Umuawu’s boun­dary pillars or other such boundary marks in the future.”


Chief Williams argued that the removal of pillars was a criminal act within s.457 of the criminal code and that the onus of proof had not been dis­charged by the people of Umuawu. The onus of proof is on the plaintiff to prove his case by a preponderance of evidence in civil proceedings. How can it be said that that was done when there was no evidence showing that any one from Abube was seen removing the pillars or seen in such circumstances that this is a reasonable inference to draw. The inference drawn by the trial Judge is not in my view one that can safely be drawn on the evidence before him. As to the order for an injunction, the learned author of Halsbury’s Laws of England 1st Ed. Vol. 17 at page 208 states as follows:­


“Where a plaintiff has established his legal right and the fact of its infringement and that further infringement is threatened to a material extent, he is entitled to an injunction to restrain such threatened infringement upon the ordinary legal principles upon which the Court acts in granting injunctions.”


The infringement of those rights must be by the defendant. In view of the fai­lure of the Umuawu people to prove a trespass by the Abube people, or to prove any threat by the Abube to infringe their rights in the future, there can be no justification for granting the order, and the appeal in this respect must also succeed.


The result is that the appeal against the Umuawu people is allowed and the order I would make is as follows:­


The judgment of the trial Judge is set aside and I would substitute in its place an order of dismissal of the claims for trespass and in­junction and an order of non-suit in respect of the claim for a de­claration of title. I would order a non-suit on the claim for a de­claration of title in view of the trial Judge’s finding that the larger area edged violet, though not claimed in the action, was owned by Umuawu, and the area to which they failed to get a declara­tion for failure to prove their western boundary is within it.


The appellants are entitled to their costs against Umuawu which I would assess at 70 guineas, bearing in mind the fact that the 100 guineas costs awarded Umuawu in the High Court included their expenses in issuing sum­mons. I would award costs in this Court in the sum of 42 guineas, and here I have taken into account the fact that the sum of £54. 6. 9d, the costs of this appeal, was incurred in respect of the whole appeal.


The remaining ground deals with the appeal against the judgment in favour of Agbudu. Ground 6 complains of the following portion of the judg­ment of the trial Judge which reads thus:­


“With regards to the Agbudu claim (0/19/57) I find that they are owners of all land verged pink in exhibit “A” with the exception of the shaded area shown in the sketch attached to exhibit “D”.


It was argued that the area shaded in exhibit “D” was not defined, with the result that the area granted to the Agbudu people is also undefined. I had at first thought that this award must suffer the same fate as that of the Umuawu people, but on further consideration and a closer scrutiny of the sketch on exhibit “D” it is clear that the triangular shaped and shaded piece of land is demarcated by pillars at its three corners. There are two pillars on the path to Achalla which forms the northern boundary of the shaded area at points marked “I” and “II” and there is a further pillar at the southern tip of the land. This becomes clearer still when one looks at the record made by the District Officer, Mr.. Lawton on the 2nd folio of exhibit “D” which reads thus:­


“On 19. 7. 18 I went with representatives of Agbudu, Enuyi, Umuawo, Igbariam, Amagu and put in concrete pillars supplied by Agbudu at the points marked I, II and III on the big map. The boundaries of Abube Enuyi in this part are now perfectly clear.


These three points all. lie on the Achalla road between the. two streams shown on exhibit “D”. Mathias Chukwura, the Licensed Surveyor for Ag­budu, having identified the northern boundary of this shaded area with the southern boundary of the area edged yellow in exhibit “A”, I would agree with the trial Judge that a surveyor could demarcate this area either on the plan exhibit “A” or on the land in dispute. This ground of appeal must also fail.


The appeal against the judgment in so far as it relates to Agbudu wholly fails and is dismissed, with costs which I assess at 30 guineas in favour of Ag­budu.




I agree, and I will only add that the inconvenience of the Rule of Court which denies the Court of trial the power to order named defendants to defend an action in a representative capacity could not be bet­ter illustrated than in the present case, in which we have the preposterous position that the very persons who plead that they sue in a representative capacity in suit 0/31/57 are able to say that they are not defending in a rep­resentative capacity in suit 0/32/57, although the two suits are so closely con­nected that the trial judge thought it expedient to try them as consolidated suits. I have used the word “inconvenience”, but in this case I am not sure that “injustice” would not be the more appropriate word.


In England, Order 16 Rule 9 of the Rules of the Supreme Court confers power on the Court to make an order on the application of the plaintiff, and similar provision is contained in Order 7 Rule 9 of the Western Region. I would express the hope that those who are responsible for making Rules of Court for the other High Courts in the Federation will consider amending their own Rules, in order to enable justice to be done, particularly in the suits involving title to land which provide such a large part of the civil busi­ness of the courts in at least two of the Regions and in Lagos.


Appeal Allowed in part




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