Appeal Court, 26th Oct., 1940.

Failure by Plaintiffs-respondents to show their authority to sue in representative .capacity-necessity for a non-suit-failure by, defendant-appellant to raise issue results in deprivation of cost in Court below.

Held: The findings of fact by the Trial Judge show that the plaintiffs respondents have failed to discharge the first onus upon plaintiffs-respondents which, purport to sue in a representative capacity. There should be a non-suit rather that a dismissal of the claim because they may at some future date be in a position t bring an action in identical terms.

(2) As the defendant-appellant never raised either by his pleadings or by hi cross-examination of the plaintiffs-respondents, the issue of authority. he is not entitled to his costs below. He should have them in this Court.

The facts are sufficiently set out in the judgment.

Clinton for Appellant.

Anwan for Respondent.

The following joint judgment was delivered. :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COASr AND GRAHAM PAUL, C.J., SIERRA LEONE.

In this case, which was commenced in the Calabar Native court and transferred to the High Court and heard in the Calabar-Aba Judicial Division, the plaintiffs, suing "for themselves and members of Yellow Duke House" originally claimed from the Defendant "£96 being their share of rents of Lowood Bead (according to Supreme Court Judgment of 19th April, 1920) receive by Defendant from 1917 to about 1925." This claim was amended to read "£120 from 1917 to 1927."

There were no pleadings, but at the hearing the Defendant b his Counsel pleaded simply Of Not liable."

After hearing evidence the learned Trial Judge gave a judgment the concluding part of which is as follows :- .

 The plaintiffs have established their claim to the amount of £ 72-£r' rent per annum 1922-1927.

   The state of the plaintiffs' house must be seriously considered before entering judgment in their favour. It is split into at least two factions and is in disorder. It is at present not recognized by the Native Authority, its representatives are suspended. I am unable to determine, after calling evidence, who are its responsible representatives.

.• I declare that the Defendant is liable in the sum of £72: order that execution do not issue until Yellow Duke House is set in order, and the Court is satisfied as to who is entitled to receive moneys on their behalf.

•• Judgment for Plaintiffs accordingly.

" Costs to Plaintiffs 15 guineas suspended on same terms as above."

This amounts to a finding of fact that the Plaintiffs had not shown their authority to sue in the representative capacity in which they did sue. In other words they had failed to discharge the first onus upon Plaintiffs who purport to sue in a representative capacity. It is dear that they should have been non-suited and that the judgment, which is really nothing more than a judgment in favour of some person or persons unknown, cannot be allowed to stand~ There should be a non-suit rather than a dismissal of the claim because it is conceivable that the Plaintiffs may at some future date be in a position to bring an action in identical terms.

The question then arises as to costs.

Now it is well established that in this country, where there are no pleadings ordered, it is the duty of the Court at the outset of the hearing of the case to ascertain the real points in issue between the parties and it is the duty of both parties to state clearly the points upon which they rely. Both the Court and Defendant failed in this duty in the present case. The plea of" Not liable" is too vague and should not be either put forward or accepted. The Defendant never raised, either by his pleading or by his cross-examination of the Plaintiffs, the question of their authority to represent the Yellow Duke House. For these reasons we think that he is not entitled to costs in the Court below. He must however have his hosts in this Court.

The appeal is allowed, the judgment of the Court below, including the Order as to costs, is set aside, and it i3 ordered that in the Court below the Plaintiffs shall be non-suited. and the parties shall bear their own costs.

The Appellant is awarded costs in this Court assessed at 40 guineas to be payable by the Plaintiffs personally.