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ENYI OBO, ETC.
V.
OFEM EGE, ETC.
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
19TH DAY OF APRIL, 1940
2PLR/1940/58 (WACA)
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OTHER CITATION(S)
2PLR/1940/58 (WACA)
(1940) VI WACA PP. 70 – 71
LEX (1940) – VI WACA PP. 70 – 71
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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:
ENYI OBO ON BEHALF OF HIMSELF AND PEOPLE OF ENOSOKWE COMPOUND OF EDIRA – Plaintiff-Respondent
AND
OFEM EGE ON BEHALF OF HIMSELF AND PEOPLE OF ABOKWA COMPOUNO OF OSUMUTONG – Defendant-Appellant
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ORIGINATING COURT(S)
APPEAL FROM JUDGMENT OF HIGH COURT
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REPRESENTATION
C. W. Clinton — for Appellant
L. N. Mbanefo — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- 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
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CASE SUMMARY
Individuals were sued for trespass and no evidence was given of any act of trespass by any of them.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
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.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA; PETRIDES, C.J., GOLD COAST; AND GRAHAM PAUL, C.J., SIERRA LEONE.
In the first of these consolidated suits, No. E/15/38, Enyi Oho of Anosukwe compound of Ediba sued Ofem Ege and 35 others of Abokwe compound of Osumutong for £150 damages for trespass, in the second, No. E/20/18, Ofem Egbe on behalf of Abokwa compound Osumutong, sued Chief Enyi Oho for himself as representing the people of Enosokwe compound of Ediba 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 25(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 of title and that for an injunction with 30 guineas costs. The trial Judge rejected the evidence of Appellant’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/20 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 trespasses 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 law 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 any one of them.
For this reason the action must fail.
The appeal, therefore, in so far as it affects suit No. E/16, 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.
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