Coussey, J.A. This action originated in the native court of the Judicial Council of Itsekiri in a claim by two plaintiffs on behalf of themselves and the people of Omadinor against the defendant on behalf of himself and the people of Bakokodia for a declaration of title to land at Omadinor described in the Writ of Summons, the extent and limits of which would be more fully delineated in a plan to be filed in Court, and damages for trespass, the trespass being interference by the defendant with the plaintiffs’ fishing rights and the collection of rents from tenants using the land. By an order under the hand of the Acting District Officer, Warri, dated 7th November, 1949, the suit was transferred to the Supreme Court for trial. Pleadings were ordered and by the Statement of Claim the plaintiffs averred that they are Chiefs and elders of Omadinor in the Itsekiri clan of the Jekri-Sobo Division in Warri province and ,that they sued on behalf of themselves and the people of Omadinor and that the defendant is a Chief and elder of Bakokodia and that he was sued for himself and the people of Bakokodia. The defendant by his defence admitted the capacities in which the plaintiffs claimed to sue and in which sued the defendant.
After a lengthy trial involving the hearing of traditional evidence on the of plaintiffs and defendant and a submission as to whether the plaintiffs had the right to sue and whether they were entitled to a declaration of title having regard to plaintiffs’ evidence and the particulars of the land afforded by the plan which the plaintiffs exhibited, and whether any damage had been proved, the trial Judge awarded the plaintiffs the declaration of title sought and £20 damages. From this Judgment the defendant appeal
The main ground of appeal revives a submission which was made by the defendant both at the outset and at the conclusion of the trial, namely that the action was not properly before the Court in that the action was brought by the plaintiffs in a representative capacity, but that contrary to the provisions of Order 4, rule 3 of the Supreme Court (Civil Procedure) Rules they had not obtained the ,approval of the Court nor prove the authority of the persons they represent, to sue. Order 4, rule 3 provides.-
“where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the Court, be authorised by the other persons interested to sue or to defend in such suits for the benefit of or on behalf of all parties so interested.”
The learned trial Judge held that as the case came to the Supreme Court on an order of transfer it was not obligatory upon the plaintiffs to observe this rule and that the Court was bound, on the authority of Malm v. Wulff (1), to adjudicate upon the case in the form in which it had been transferred to the Court.
In support of this ground of appeal Mr. Williams has pointed out that Malm v. Wulff (1) was dissented from in the more recent decision of this Court in Ababio v. Ackumpong (2), and in his submission the correct view is that when a case comes to the Supreme Court for trial on an order of transfer, it is to be regarded as an action originally brought in the Supreme Court and the procedure throughout must be regulated by the Supreme Court (Civil Procedure) Rules. As a general proposition this in my opinion is correct.
But there is direct authority against the appellant’s contention that the approval of the Court under Order 4, rule 3 was necessary in the circumstances in which this action was transferred to the Court.
In Chief Ntuen lbok and Two Others v. Chief Douglas Macjaja (3), the plaintiffs sued on behalf of themselves and the Ibibio people and the defendant was sued for himself and the people of Opobo Town. On a similar argument the Court heId that the Writ, as originally laid, was in order and required no application for approval as the Native Court is not subject to the rules of the Supreme Court and that the rights of the parties could not be stultified by the transfer of the suit to the Supreme Court. This Court pointed out that it had held in Musa Apena and Others v. Ajose Oniku and Others (4), that the normal time to make e application would be immediately after the filing of the Writ, but on the other hand the writ had been properly filed in the Native Court which had jurisdiction to hear the case and that the procedure of the High Court can only come into operation with regard to matters subsequent to the filing of the suit and that the Writ must be deemed to be properly before the Supreme Court on transfer of the suit.
It seems just and reasonable to apply this reasoning in the present case and therefore this ground of appeal cannot be sustained. Moreover, as already stated, the appellants by their defence admitted:-
(1) that the plaintiffs are Chiefs and Elders of Omadinor and sue for themselves and the people of Omadinor, and
(2) that the defendant is a Chief and Elder of Bakokodia and was sued on behalf of himself and the people of Bakokodia.
Another ground of appeal is that the Court was wrong in granting the plaintiffs a declaration based upon a plan which showed boundaries quite different from the description in the Writ of Summons and in the Statement of Claim. This is not accurate. The land in dispute and described in the Claim can be identified clearly on the plan. There was no confusion on the part of the defendant or by the Court. The surveyor, however, failed to verge the area in dispute pink as he should have done and, for some unknown reason, represented as an inset verged pink an enlargement of a particular village on the land which was never contested by the parties as the only land in dispute. There is no substance in this ground, but to avoid any misunderstanding with the neighbouring owners alleged by the plaintiffs to be on the eastern side of the land, I think there should be added to he judgment a rider that the plaintiffs' declaration does not affect the determination of the true boundary between the plaintiffs and the people of Obodo if and when that question arises.
The last ground of appeal is that damages should not have been awarded against the defendant for trespass if he was sued in a representative capacity. This is mainly academic for I have no doubt that the defendant’s people who undertook with him the enterprise of asserting a claim by trespass will share with him the damages that have resulted. The evidence however shows that the defendant and the people of Bakokodia as a community are responsible for the trespass. That community is an entity defined and conceptually clear to the native mind. Although the award of damages is expressed to be against the defendant where, as in this case, he has been aided and supported in the trespass by his community, in my view the people of Bakokodia are responsible with their head for the damages.
This disposes of the grounds of appeal.
Foster-Sutton, P. I concur. de Comarmond, Ag. C.J. I concur.