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FRANCIS D. BANIGO
V.
JOHNSON O. BANIGO AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
24TH DAY OF OCTOBER, 1942
LEX (1942) – WACA PP. 148 – 151
OTHER CITATION(S)
2PLR/1942/22 (WACA)
(1942) VIII WACA PP. 148 – 151
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BEFORE THEIR LORDSHIPS
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN
FRANCIS D. BANIGO — Plaintiff-Respondent
AND
1. JOHNSON O. BANIGO
2. FRANK P. S. BANIGO
3. OSWALD KALADA
IN RE:
1. JOHNSON O. BANIGO
2. OSWALD KALADA — Defendants-Appellants
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REPRESENTATION
A. Alakija — for Appellants
L. N. Mbanefo — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Trespass — Damages for trespass to land — Where right of use and occupation proved to be rested in plaintiff — Evidence of possession
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CASE SUMMARY
ORIGINATING FACTS
The land in dispute was occupied by certain members of Swiss Banigo family of which, by custom, the plaintiff was the Head. They were authorized to occupy the land on behalf of the whole family. Among them was Walter Banigo. He died in 1930. After his death some of the members, who are now the defendants-appellants, sought to take and use the land as if it were the private property of Walter Banigo. In course of the scheme certain acts of trespass were committed, which are now the cause of this action. At no time, in the Court below, was it suggested that there was no evidence of possession by the plaintiff. The Referee to whom certain questions of fact were referred found that the plaintiff was entitled to the use and possession of the land. Acts of trespass admitted in Statement or defence.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal):-
Possession of land has been uninterrupted from date of occupation and that acts of trespass had been committed.
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MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE.
This action started in a Native Court but it was transferred by the District Officer to the High Court for the reason that “the case concerns Bonny Customs of which the Ugwunagbo Native Court has no knowledge.” When the case came into the High Court the claim was amended to read as follows:
“The plaintiff claim the sum of £120 being damages in that the defendants wrongfully defendants wrongfully broke and entered the land of the plaintiff known as NSULU at Abayi, Aba District being in the possession of the plaintiff and there tapped the Rubber Trees, removed the plaintiff Canoes, zinc sheetings and Tapping instruments without the consent and/or concurrence of the said plaintiff.
“2. An injunction to restrain the defendants their Agents or Servants for any further interference with the plaintiffs rights and title of the said land.”
Pleadings were ordered and Statement of Claim and Statement of Defence were filed. On the pleadings it is clear that the plaintiff was claiming as Head of the Banigo Houae of Bonny which was apparently founded by Squiss Banigo who died in 1924, and is called in the pleadings “the Big House.” One Walter Banigo succeeded Squiss Banigo as the Head of “the Big House” and he died in 1930. The first defendant-appellant is a member of the late Walter Banigo, the second is, Walter’s brother and the third is Walter’s son.
As often happens in these land cases the pleadings were inaccurate in naming the land to which the claim related but eventually after some discussion certain issues were fixed and by consent an order of reference was made referring the agreed issues to an Administrative Officer as referee. The Court finally ordered that the Referee should enquire and report on the following issues:-
“(a) Who is entitled to the use and occupation only and not ownership of Chief Squiss Banigo’s Janel called ‘Nsulu’ marked on the plan attached hereto.
(b) If the Referee is satisfied that the plaintiff is entitled to the use and occupation of the said land. Whether any acts of trespass have been committed by the defendants on this land.
(c) The Referee shall take any necessary evidence on oath and give proper notice to parties concerned.”
A most exhaustive enquiry was made by the Referee and from the proceedings before him certain things appear clearly:-
(1) That the parties knew quite well, and sufficiently defined, the land about which they were in dispute.
(2) That the acts of the defendants about which the plaintiff complained were not denied by the defendants. These acts could not indeed be denied in the proceedings before the Referee for they were admitted by the defendants in their Statement of Defence.
(3) That the main issue between the parties was whether the land in question belonged to “the Big House” of which the plaintiff is Head or to the family of the late Walter Banigo to whom the defendants maintain the land belongs. The plaintiff claimed that he was entitled to the use and occupation as the land belonged to the Big House. The defendants contended that they were entitled to exclusive use and occupation because the land belonged to the late Walter Banigo.
The Referee’s Report was received in evidence by the Court below and his findings of fact were as follows:-
(a) Walter Banigo was appointed Head of the family Squiss Banigo in 1903.
(b) That the land now in dispute between the parties was acquired by Walter Banigo after the date.
(c) That Walter Banigo acquired this land for Squiss Banigo and that therefore
(1) The Banigo House is entitled to the use and occupation of such areas of land with the marked Chief Squiss Baniso’s land called Nsulu marked on the plan attached to the Order of Reference as are in dispute between plaintiff and defendants.
(2) The first and third defendants have been trespassing on those areas of land since the death of Walter Ranigo in 1924.
(d) That the signatures of all the parties to Exhibit G are genuine and were not obtained under duress.”
(The date “1924″ in (c) (2) is an obvious mistake for “1930”).
Counsel were heard in the Court below on the Referee’s Report and further evidence called in the Court below and it must be noted that the appellants’ counsel raised in the Court below only three points:-
(1) The plaintiff could not sue without taking out Letters of Administration. This point was one of the Grounds of Appeal but was quite rightly abandoned by appellants’ counsel in this Court as of no substance.
(2) The land was miscalled in the Statement of Claim. There is nothing in this point as when the parties eventually got before the Referee they had no doubt about the land to which the dispute referred.
(3) The plaintiff’s title had been challenged and therefore he must prove title before his action could succeed. The Referee’s findings settled that question very definitely and the appellants’ counsel in this Court has expressly abandoned the ground of appeal that the verdict is against the weight of evidence.”
It was never suggested by counsel for the appellants in his argument in the Court below that there was no evidence of possession by the plaintiff or of the specific acts of trespass complained of, nor was it suggested, by pleading or argument, that by native law and custom the defendants as members of “the Big House” had an inherent right to use and occupy the land along with the other members, but in this Court curiously enough, these are the main grounds of appeal.
As regards the acts of trespass no evidence was necessary as they went admitted by the defendants in their Statement of Defence. As regards the plaintiff’s possession sufficient to base an action for trespass the matter is quite clear on the evidence. The plaintiff brings this action in a representative capacity on behalf of the Big House, i.e., the Squiss Banigo House. Squiss Banigo sent Walter and others of the Big House people to take possession and “open” this land on behalf of “the Big House”. On Walter’s death in 1930 some of these representatives and the defendants tried to oust “the Big House” and take and use the land as if it was the private property of Walter Banigo and his people and his descendants. In the Course of his scheme the defendants committed the acts of trespass complained of but they were only a few of the people or descendants of people or descendants of people whom Squiss Banigo had sent to take and keep possession of this land on behalf of “the Big House”. The possession by the Big House has been interrupted. When the defendants on the death of Walter in 1930 started using and occupying the land not on behalf of the Big House but on their own behalf or on behalf of the late Walter’s family only, they were clearly committing trespass and the Court below has rightly so found.
In regard to the submission put forward for the first time in this Court that defendants could not be trespassers because by Native custom they had the right, as members of the Big House to take and occupy the land along with other members, it is sufficient to say that no evidence was led as to the native law and custom applicable, and the question of what it may be in any particular area is usually a matter of difficulty and controversy.
We could not possibly find in the appellants’ favour on such a point not raised in the Court below and not supported by any evidence.
All the grounds of appeal fail.
We notice that the Court below did not deal with the second part of the claim before it, viz: the claim for an injunction. We have not been asked to amend the judgment by granting the injunction prayed, so we refrain from doing so. The appeal is dismissed with costs assessed at thirty-five guineas.
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