Appeal Court
19th April, 1940. Appeal from
judgment of High Court.
Consolidated suits claiming
damages for trespass and also a
declaration of title to land in
dispute--suits started in Native
Courts and transferred to High
Court-Consolidated after
transfer and claim for
injunction added.
Individuals
were sued for trespass and no
evidence was given of any act of
trespass by any of them.
Held that the
appeal relating to this suit
must be allowed; but the
dismissal of the claim for
declaration of title and
injunction in Court below is
upheld.
The facts of
the case are sufficiently set
out in the judgment.
C. W.
Clinton for Appellant.
L N;.
Mbanefo for Respondent.
The following
joint judgment was delivered :-
KINGDON,
C.J, NIGERIA, PETRIDES, CJ.,
GOLD COAST AND GRAHAM PAUL, C.J.,
SIERRA l.EONE.
In the first
of these consolidated suits, No.
E f1;j /38, Enyi Obo of Anosukwe
compound of Ediba sued Ofem Ege
and 35 others of Aboke compound
of Osumutong for £ I 50 damages
for trespass, in the second, No.
E /20/38, Ofem Egbe on behalf of
Abokwa compound Osumutong, sued
Chief Enyi Obo for himself as
representing the people of
Enosokwe compound of Ediha for a
declaration of title to the land
in dispute in the case.
Both suits
were started in the Native
Tribunal of Ediba and
transferred to the High Court
under section :W (1) (c)
of the Native Courts Ordinance,
1933 (No. 44 of 1933). After
transfer they were consolidated
and a claim for an injunction
was added in E /20.
The learned
trial Judge in his judgment
dealt with suit No. E /20 first
and entered judgment for the
Defendants in respect of both
the claim for a declaration d
title and that for an injunction
with 30 guineas cost,.;. The
trial Judge rejected the
evidence of Appel1ant's
witnesses in so far as it
conflicted with the Respondent's
and we see no reason to disturb
his findings. The appeal in so
far as it affects suit No. E
120 is dismissed.
In suit No. E
/15 the Judge recorded the
following finding :-
" In regard
to Suit No. E /15/1938, although
it is found that certain of the
people of Osumutong have
committed act of trespass and
that the defendants 36 in number
are natives of Osumutong-the
difficulty in assessing damage
and of establishing identity
arises from the fact that no
evidence has been adduced as to
specific acts of trespass or as
to the extent of the damage
caused by these acts or as to
the names of the trespassers."
and later he says :-
" It
is unfortunate that formal leave
to amend was not sought in order
to sue the defendant Ofem Ege in
his representative capacity in
which capacity he was actually
and in fact sued.
" Had this
been done the issue would have
been clarified; for it is a
finding of a fact that a large
number of the Chief's Ofem Ege's
(first defendant's) people (the
Osumutongs) have trespassed on
plaintiff's land over a period
of years.
"There are.
however, sufficient grounds to
warrant the assumption that the
first defendant, the Chief Ofem
Ege, was in law sued in his
representative capacity."
He entered
judgment for the present
Respondents for £12 and 30
guineas costs:
As to this we
are unable to agree with him
that Ofem Ege was actually and
in fact sued in his
representative capacity, it is
clear that actually he and 35
other individuals were sued. Nor
can we subscribe to the
assumption that Ofem Ege was in
.Jaw sued in his representative
capacity.
The plain
facts are that 36 individuals
were sued for trespass and no
evidence whatever was led of any
single act of trespass by anyone
of them.
For this
reason the action must fail.
The appeal,
therefore, in so far as it
affects suit No. E /15, is
allowed the judgment for £12
damages and 30 guineas costs is
set aside and it is ordered that
the claim do stand dismissed
with costs assessed at 30
guineas in the Court below.
As each party
has been partially successful in
this Court there will be no
order as.. to costs in this
Court.
