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CHIEF WALTER BOB MANUEL, ETC.
V.
FRED QUAKER DOKUBO
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
31ST DAY OF JANUARY, 1944
2PLR/1944/17 (WACA)
OTHER CITATION(S)
2PLR/1944/17 (WACA)
(1944) X WACA PP. 47 – 66
LEX (1944) – WACA PP. 47 – 66
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
BAKER, J.
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BETWEEN
CHIEF WALTER BOB MANUEL ON BEHALF OF HIMSELF AND THE BOB MANUEL FAMILY OF ABONNEMA — Plaintiff-Appellant
AND
FRED QUAKER DOKUBO — Defendant-Respondent
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REPRESENTATION
S. B. Rhodes — for Appellant
T. E. Nelson-Williams — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROEPRTY LAW:- Trespass to land — Proof of — Person in occupation of land leasing same out to third parties — Whether suffices
REAL ESTATE AND PROEPRTY LAW:- Sale of real estate — When would not constitute sale of land and appurtenances upon which erected — Relevant considerations — Legal effect
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. To establish the Defendant-Respondent’s right of occupation, it is unnecessary to go back further than the Green judgment of 1920, though if the pleadings alleged acts of trespass prior to the Pearson judgment no doubt the Defendant-Respondent would seek to show that he or his privy was in lawful occupation long before 1920. It is perfectly clear that upon the expiration of three months from the date of the Green judgment, when no agreement had been reached and no referee appointed, Quaker Bob Manuel became in lawful occupation of the whole area edged red in Ex. B1 The suggestion of Appellant’s Counsel that the purchase of the building at a public auction some four years later was payment of compensation under the Green judgment is too absurd to be taken seriously. In the 1938-1939 suit it was “common ground that no compensation was in fact paid,” (the West African Court of Appeal judgment). From the 23rd June, 1920, at any rate, Quaker Bob Manuel had the right to occupy and build upon the site and to enjoy it for the use, of himself, his House members and successors. The present Defendant-Respondent is within those categories.
2. The Green judgment does not of itself give to the present Defendant-Respondent any rights of which his predecessor-in-title (Quaker Bob Manuel) could not be divested during his life-time.
3. The Defendant-Respondent’s predecessor (Quaker Bob Manuel) in title did not lose his right over the property when Gladstone Bob Manuel bought at public auction the right, title and interest of Quaker Bob Manuel in the house, that is all the rights of Quaker Bob Manuel not only to the house but also to the whole area of land. To say that Gladstone acquired a whole area of land thereby was wrong, the purchase of the house carries with it the right to occupy the area covered by the house at any rate so long as the house stands and the right of access to the house but was not effective to cancel other rights of occupancy to various parts of the whole area.
4. The Defendant-Respondent has not committed trespass as alleged by the Plaintiff-Appellant and therefore the Plaintiff-Appellant is not entitled either to damages or to an injunction and his claim fails and is dismissed.
DISSENTING OPINION (Per Graham, C.J.)
1. In 1924, when the Defendant-Respondent was still a schoolboy, by a sale by public auction under a writ of Fi. Fa. and Certificate of Purchase Gladstone Bob Manuel on behalf of the Bob Manuel Family acquired all the right title and interest formerly held by Quaker (the judgment debtor and predecessor-in-title of Defendant-Respondent) in the house which he built. Quaker at this time was still alive so nothing had then passed to his “successors”.
2. What was sold under the Writ of Fi. Fa. was all the right title and interest formerly held by Quaker in the building. Sale of real property under a writ of Fi. Fa. is not of course possible under English law, and in Nigeria such a sale is governed by our Rules of Court under which it is the right title and interest of the judgment debtor in the property which is sold.
3. The learned Judge misdirected himself when he held that it was “only the house, the structure, which was sold. This is plain from the Certificate of Sale of the District Officer and the receipt for the money “. From that passage it is apparent that the learned Judge ignored altogether that it was all the right title and interest of Quaker in the house that had been sold.
4. The Appellant’s Statement of Claim founded upon trespass committed by the Respondent “acting under a judgment … of 8th March, 1939.” It is not an adequate defence to that claim for the Respondent to show that the trespass alleged did take place but that it started before and continued and continues after the date of the judgment of 8th March, 1939. Trespass, is in its nature, a continuing tort. Even if the Appellant had brought action and obtained judgment for the full damages suffered by the Respondent’s trespass up to 8th March, 1939 he could still bring another action for the continuation of the trespass after that date.
5. The Respondent’s present case appears to be substantially that he is and has been on the land in question by leave or licence of the undoubted and admitted titular owners, the Bob Manuel Family. Even accepting that as the real position, anything done by the Respondent in excess of the rights given by the leave or licence is in law a trespass. I can find no suggestion in the pleadings or in the evidence or in the judgment of the learned trial Judge that the Bob Manuel Family ever gave to the Respondent, to Quaker himself, or to anyone else leave or licence to put rent-paying strangers on the land or collect the rents.
6. The trial judge ignored the well-established difference between a right of occupation of a tenant under native law and custom (by himself and his family and servants or house members) and the right to put strangers on the land and collect rents from them.
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MAIN JUDGMENT
The following judgments were delivered:-
KINGDON, C.J., NIGERIA.
There is a long history of litigation between the parties to this appeal. The Plaintiff-Appellant is the Paramount Chief of the Bob Manuel Family of Abonnema and the Defendant-Respondent is the Chief of one of the Bob Manuel sub-houses, namely, the Quaker Bob Manuel House. The land with which the present appeal is concerned is a small area of Owusari land with a frontage of 118 feet to the Sombriero River shown edged red on the plan (Ex. B1 otherwise WBI) put in by the Plaintiff in the suit. This plan was not made for the purposes of the present suit, but for an earlier one in 1938 when the position of the parties was reversed. Sometime between 1902 and 1904 Owusari land was partitioned out, for sanitation purposes, amongst six Bob Manuel Houses. The area now concerned fell to the Quaker Bob Manuel House.
The first litigation took place between 1918 and 1922 when Gladstone Bob Manuel (present Appellant’s predecessor) representing the Bob Manuel Family sued Quaker Bob Manuel (present Respondent’s predecessor) representing the Quaker Bob Manuel House in the Supreme Court. The case was heard by Green, J. and in his judgment of 23rd March, 1920 (hereinafter referred to as “the Green judgment”) he sets out the dispute as being “whether Plaintiff or Defendant is entitled to the site upon which Defendant has erected a large brick building”.
He held –
“that no such right or title as defendant alleges was given to him by plaintiff or the Bob Manuel house when the Division of the land for the purpose of apportioning the duties to keep Owusari land clean was given.”
and the latter part of his judgment is as follows:-
“I am satisfied that plaintiff with full knowledge that defendant was erecting the brick house in exercise of a right of building on the land in question which he claimed unreasonably stood by whilst defendant continued to do so, and in equity is liable to compensate defendant for the expenditure which he incurred in building the house in question.”
“In the event of the parties not being able to agree, there must be an enquiry as to the amount reasonably expended to this date by defendant Quaker Bob Manuel in building the brick house erected by him on the land in question, and there will be leave for either party to apply to the Court to appoint a referee or referees with or without an umpire, and to fix the terms of reference for such an enquiry.”
“In the event of an amount being agreed upon in writing between the parties as compensation, or of the amount of expenditure of defendant as above mentioned being ascertained by the referees, then on payment of the sum so agreed or ascertained, the plaintiff shall be entitled to a declaration in the terms claimed by him in the action and to recovery of the said site together with all buildings thereon.”
“But if no amount can be agreed upon between the parties and no application for the appointment of a referee or referees has been made to this Court within three months from this date, or if within three months from the date when an amount has been agreed between the parties or ascertained by the referees or within such further time as this Court may order-plaintiff has not paid into Court the sum so agreed or ascertained then in such case defendant shall assume or resume occupation of the said site of the brick house erected by him together with the portion· in front of the house as far as the river and the appurtenances thereto belonging and hold the same upon the same terms and conditions of native law and customs as if he had applied to and received from plaintiff permission to occupy and build upon the same site for the use of himself, his house members and successors.
No amount was agreed upon as compensation, and no referee was ever appointed and no sum was ever paid by way of compensation, so that the Defendant resumed occupation in accordance with the terms of the judgment. The Defendant however appealed against the Green judgment to the Full Court. That Court dismissed the appeal on the 18th January, 1922, pointing out that the Defendant Appellant “has been well treated and has got the right to occupy the land in dispute subject to Native Law and Custom and will be able to complete his building thereon which was all he could possibly claim.”
In 1924 Quaker Bob Manuel became a judgment debtor and his right title and interest in a building was sold by public auction and bought by Gladstone Bob Manuel. The Public Notice advertising the sale was in the following terms:-
“IN RE COMPANY OF AFRICAN MERCHANTS, ABONNEMA
versus
CHIEF QUAKER BOB MANUEL OF ABONNEMA
“Notice is hereby given that the two storied brick building situate in Abonnema and belonging to Chief Quaker Bob Manuel, will be sold by public auction after fourteen days from the date of this Notice in execution of the decree of the Supreme Court against the above-named Chief Quaker Bob Manuel, in accordance with Supreme Court Ordinance Order ” Section Bob Manuel, 27, etc. Sequitur.
Sgd. J. COOK
Acting A. D. O.
for District Officer.
“Dated this 15th day of May, 1914.
DEGEMA.”
and the certificate given by the District Officer was as follows:-
“This is to certify that under a Writ of Fi. Fa. granted by His Honour Judge Webber in the Divisional Court one house built of brick and corrugated iron situated at Abonnema waterside and immediately outside the land occupied by the Company of African Merchants was sold on June 2nd to Chief Gladstone Bob Manuel for two hundred pounds.
“The said Chief Gladstone Bob Manuel has thereby acquired all the right title and interest therein formerly held by Chief Quaker Bob Manuel the Judgment debtor.
(Sgd.) F. B. ADAMS
District Officer.”
DEGEMA
16th June, 1924.
Subsequently the house was transferred to Anthony Karibi Bob Manuel.
Early in 1938 the house was blown down in a tornado, whereupon Anthony Karibi Bob Manuel started to rebuild it. The present Defendant-Respondent (who had by that time succeeded the deceased Quaker Bob Manuel as head of the Quaker Bob Manuel House) thereupon, in his capacity as such head, commenced a suit in the Native Court of the Judicial Council of Kalabari against Anthony Karibi Bob Manuel and Chief Walter Bob Manuel (the present Plaintiff-Appellant) as head of the Bob Manuel House in which position he had succeeded Gladstone Bob Manuel. That suit was transferred to the High Court and tried by Pearson, Asst. J., in 1939. In that suit Fred Quaker Dokubo clearly laid claim to the land edged red in Ex. B1 as his and Pearson, Asst. J., in a judgment dated the 8th March, 1939 (hereinafter called the Pearson judgment “) gave him judgment. Against that judgment the two Defendants in the case appealed to this Court. On the 2nd November, 1939, this Court (constituted entirely differently from its constitution today) allowed the appeal and entered judgment for the Appellants stating that the effect of the Green judgment was to give Fred Quaker Dokubo a right of occupancy under native law and custom only. That judgment is hereinafter referred to as the West African Court of Appeal judgment.
That dictum of course is not strictly accurate; it should have said “to give Quaker Bob Manuel, the privy of Fred Quaker Dokubo, a right of occupancy,” etc.
Then followed the present suit instituted by the Plaintiff-Appellant also in the Kalabari Native Court and also transferred to the High Court, in which the Plaintiff-Appellant claimed damages for trespass and an injunction.
It is necessary to examine carefully the wording of the Writ and the Statement of Claim in order to ascertain exactly what the-Plaintiff-Appellant claimed. The writ is worded as follows:-
“The plaintiff’s claim is the sum of £200 being damages for trespass committed by the defendant, in that the defendant without the consent of the Bob Manuel family entered upon the Bob Manuel beach land and erected a shed thereon.
“An injunction to restrain the defendant his heirs assigns and successors from any further interference with the said Bob Manuel beach land.
It is agreed that the land referred to is shown edged red in Ex. B1. Paragraphs 3-6 of the Statement of Claim are as follows:
“3. The Plaintiff as the Head of the Bob Manuel Family has been in undisturbed possession of the land in dispute up to the 9th day of March, 1939.
4. The Defendant acting under a judgment of this Honourable Court in Suit No. IK/29/38 delivered on the 8th day of March, 1939, in his favour entered into possession of the land in dispute erected a house thereon and collected land rents from wood splitters on the said land.
5. The said judgment was on the 2nd day of November, 1939, set aside by the West African Court of Appeal and judgment entered for the Defendant who is now one of the Plaintiffs in this action.
6. The Defendant despite the judgment of the West African Court of Appeal which will be founded upon and contrary to the Kalabari native law and custom has refused to give up possession of the said land in dispute,”
It will be observed that there is a considerable and important discrepancy between the wording of the Writ and the wording of paragraph 4 of the Statement of Claim. Both complain of “entry” but apart from that the complaints are entirely different; the Writ mentions only the erection of a shed, there is no mention of the erection of a house (and the distinction between a shed and a house is well recognised and well understood) and there is no suggestion about the collection of land rents; the Statement of Claim on the other hand is silent as to the erection of a shed but complains of the erection of a house and the collection of land rents from wood-splitters. It is patent that at that stage the Plaintiff-Appellant was not quite sure what claim it would pay him best to put forward. This fact is not calculated to impress a Court with his bona fides.
But there is one thing quite certain and definite about his claim and that is that he is only complaining of action taken by the Defendant-Respondent “under” the Pearson judgment, i.e. after the 8th March, 1939, and in pursuance of rights which the Defendant-Respondent supposed himself to possess until the Pearson judgment was reversed. He himself avers in paragraph 3 of his Statement of Claim that he has been in undisturbed possession of the land in dispute up to the 9th March, 1939. The Plaintiff-Appellant is quite definitely not complaining of any act of trespass committed before the 8th March, 1939, nor is he complaining of any continuing act of trespass commenced before the Pearson judgment and continuing after it. He is complaining only of acts taken m pursuance of the Pearson Judgment and it is only such acts that are in issue in the present suit.
In reply to these pleas the Defendant-Respondent pleaded in paragraphs 3 and 5 of his defence as follows:-
“3. The Defendant denies paragraph 4 of the Statement of Claim and says that the houses on the land are rightfully in the occupation of Defendant and were not in dispute in the Suit mentioned in paragraph 4 of Statement of Claim. The portion of the land then in dispute is edged green on the plan filed in the said suit,
“5. Defendant will plead he is rightfully possessed of the portion of the land in dispute occupied by him and that such occupation was previous to the judgments referred to by the Plaintiff and is in accordance with the Judgment of the Supreme Court of the 23rd March, 1920, in a Suit between Gladstone Bob Manuel versus Quake, Bob Manuel, Defendant’s predecessor.’
It will be seen that in paragraph 4 the Defendant-Respondent claims to be rightfully in occupation of houses which were not in dispute in the 1938-39 case and in paragraph 5 he claims to be in rightful possession of only a portion of the land in dispute and bases his right on the Green judgment.
Now let us examine what evidence the Plaintiff-Appellant led in support of his allegation of trespass. Here is his own evidence:
“The present defendant’s father was alive at the time of the sale and was the owner of the building; he died about six years after the sale to me. During these six years he did not build any other house on the land edged red in W.B.I. After I bought, he did not exercise or attempt to exercise any rights of occupancy over the land edged red; When I bought the house on this land, there was only the house I bought on it and also a shed made of cane. The defendant’s father did not own the shed: I remember the action brought in 1939 against me by the present defendant (in W.B.4). The defendant got judgment; the action related to the land edged red in W.B.I. An appeal was made to W.A.C.A. Between the date of the judgment and the appeal, no one built on the plot edged red in W.B.I. and no one has built on it since the appeal. The shed is the only building on the land now; the house I bought was blown down; it was half repaired and is not completed and is unoccupied. The defendant trespassed on my land. I am the Paramount Chief and he cannot enter on my land without my permission. He uses the waterside as a ferry; he also built a shed a long one-on the land; he started to do these things after Mr. Justice Pearson’s judgment in 1939. There were some sheds on the land which I had erected before 1939 and they were rented to traders who paid me the rent. After the judgment in 1939 the defendant started collecting the rents. I was collecting about 26s, per month. Since the defendant has collected and he is still collecting them, I have collected nothing.”
There are two flagrant contradictions in this short extract from the Plaintiff-Appellant’s evidence.
First he says that no one has built on the land between the date of the Pearson judgment and the appeal from it or after the appeal, then that Defendant, inter alia, built a shed and started to do these things after the Pearson judgment.
Again he says “The shed is the only building on the land now” and immediately afterwards refers to one shed built by the Defendant and to other sheds from which he alleges the Defendant is still collecting rents. Small wonder that the learned trial Judge attached little credence to his evidence. But apart from the contradictions, it is noteworthy that the Plaintiff-Appellant gives not a little of evidence to support either of the two allegations in paragraph 4 of his Statement of Claim viz.:
(1) that the Defendant had erected a house on the land, and
(2) that the Defendant had collected land rents from wood splitters on the said land, instead he introduces a fresh alleged act of trespass, viz.:-The collection from traders of rents for sheds. Since this alleged act is not pleaded it cannot be founded upon.
Apart from his own unconvincing evidence the Plaintiff-Appellant called only one other witness to give evidence as to the alleged acts of trespass, namely his predecessor Gladstone Bob Manuel. He said:-
“There is now one shop on the plot owned by one Sokari. It was built after the sale of the building, I bought. Sokari went to Chief Walter (the plaintiff) and got his permission. Quaker defendant’s father lived about eight years after his house which I bought at the auction was sold. During these eight years he never came back and exercise rights of occupancy over the land. The present defendant Quaker’s son, started to exercise rights of occupancy six years after Quaker died. The defendant instituted proceedings against the present plaintiff claiming the land. He also put up a long building of bamboo near the brick building; he was prosecuted and fined and the building demolished.
“By Court: It was demolished and he was fined because the defendant did not comply with the Township Building Regulations.
After Pearson, J’s judgment he also started to collect rent from three sheds erected by the present plaintiff. At times the plaintiff collected £1 or £1 5s. The defendant himself put up sheds and rented them. The rent which plaintiff has been collecting belongs to the Family. Quaker never lived in the house I bought; it is still uncompleted.
and in cross-examination :-
“Karibo is a son of Quaker; he built a shop on the land; it was erected long before Green, J’s. judgment. Sokari is a member of Quaker’s house; he was given permission from the Plaintiff to build. There were not any bamboo sheds besides the shop on the land Quaker built his house on. Defendant collected rents from persons who brought wood for sale to the land. I can’t remember Quaker, defendant’s father, collecting rents”.
He also failed to give any evidence as to the Defendant erecting a house on the land “acting under” the Pearson judgment. And now what is the evidence of the Defendant-Appellant and his witnesses. The Defendant-Appellant himself says:-
“Under Green, J.’s judgment my father had the right to occupy the area on W.B.I. edged in red. He allotted portions of it to Karibo Quaker, Sokari Quaker and myself; Karibo and I are his sons, and Sokari a member of his house. He did this in about 1916. Karibo put up a shop and store on his portion; he also erected a wharf; he was a big trader, Sokari built a bamboo house on his portion; he demolished it and put up a brick building. I also put up bamboo sheds which are still there. I did not give Sokari permission. The shop Karibo put up was erected on the site which was later used for the brick building which figures in the case before Green, J. This building was also put up by Quaker. The house was sold; my buildings and Sokari’s buildings were not sold. The house was bought by plaintiff and another shop was bought by one Wariwest. After the sale of the house and the shop, I and Sokari continued to occupy our portions. I was never disturbed in my enjoyment of my portion by the plaintiff nor was Sokari; the plaintiff never demanded rent from me. I never paid rent to anyone.
“All buildings marked green in W.B.I were put up by Karibi; I have never collected rents from the ferry house (N.W. of W.B.I). I put up some bamboo sheds before 1939 and I’ve been collecting rents for them and still do so i.e., those on S.W. corner of W.B.I. The plaintiff never interfered with Sokari’s house or plot up to 1939; his house is the one opposite the Ferry house. The plaintiff has never disturbed me in my ferry service which I started before 1932 nor tried to stop me.
“Paragraph 4 of Statement of Claim is not right; I never put up any house. I collected rent from my tenants and from wood splitters.
“I started school in 1911: I am 42 years old. I first put a building on this plot in 1916 about. I spent most of my time in Lagos. In 1916 I was 16. I left school in 1919; I then traded in Abonnema. I went back again to school in 1922 and left in 1924; I again traded. I then joined the Government in 1927 and resigned in 1930. My father paid my school fees.
On the plot now there are only one shed erected by Karibi, the uncompleted building which was bought by plaintiff, and Sokari’s shop. The latter was built before Quaker, my father died. These are the only three permanent buildings on the land “.
It does not appear that there is any inconsistency between his statement that he put up bamboo sheds which are still there and his subsequent statement that three other buildings are the only three permanent buildings on the land. He evidently regards bamboo sheds as non-permanent. It will be seen that the Defendant-Respondent claims to have been in possession and occupation of a certain portion of the area edged red in Ex. B1 ever since it was allotted to him by his father in pursuance of the Green Judgment i.e. after 1920. His claim to have first erected a building on the plot in 1916 cannot be taken seriously.
He admits putting up bamboo sheds before 1939 and collecting rents from them and that he is still so collecting, and he admits collecting rents from wood splitters; but denies putting up a house. He denies ever having been disturbed in his enjoyment of his portion by the plaintiff (i.e. of course, till this action was brought).
In support of his evidence Sokari Quaker Bob Manuel stated:-
“I know the land in this case. Quaker built on it and gave a portion to his son Karibo: and a portion to me, and also the defendant in this case. I built a house on my share: the first was of bamboo: I lived in it; later I removed it and put up a brick building; it is now rented by me; and I collect rents. I did not go and get permission from plaintiff. I was never disturbed by any member of the plaintiff’s family. I remember a case in 1920; I had built my house before then. There is a shed erected by defendant: it is now rented. Karibo built the brick house which was sold and bought by plaintiff: the latter never interfered with me, and never asked me to quit. I pay him no tribute.”
and in cross-examination:-
“I never attended a meeting of the plaintiff’s family at which l asked for permission. If a man wants land belonging to Bob Manuel family, he must ask the permission of the Head of the Bob Manuel family. I would sell it now for £300: I did have money before 1920 to put up the house. I was not a canoe boy.
“An incomplete building is now on the plot Karibo was given by Quaker.
“Fred, the defendant has got sheds on his portion of the land given him by Quaker.
“There is nothing on the land now which belonged to Quaker except the uncompleted brick building.”
It is abundantly clear that according to the evidence of the Defendant-Respondent and his witness, Sokari, any acts done upon the land or in connection with the land were done before the Pearson judgment in 1939 or are a mere continuance of acts done before that date. There is a repudiation of any fresh act done “under” the Pearson judgment. The learned trial Judge accepted the evidence of Defendant-Respondent and his witnesses, and, so far as it is possible to judge only from the record and from argument of Counsel, I should certainly have done the same.
That appears to me to decide the case, the Plaintiff-Appellant failed to prove his case and his claim was very properly dismissed.
But since we have listened to argument at some length upon matters which appear to me to be not strictly relevant to the issues in this case, I think it desirable to place on record my views as to them.
In his argument in this Court, Plaintiff-Appellant’s Counsel, realizing, no doubt, that he could not possibly succeed upon the terms of his pleading namely to establish a trespass committed under the Pearson judgment, fell back upon the contention that the Defendant-Respondent had long been a trespasser on the land and never had any right of occupation: This in my view is merely a belated attempt to re-open a very old question, long decided in Defendant-Respondent’s favour. The whole of the Appellant’s grounds of appeal, are in my opinion, irrelevant to the real issues before the lower Court and before this Court.
To establish the Defendant-Respondent’s right of occupation, it is unnecessary, I think, to go back further than the Green judgment of 1920, though if the pleadings alleged acts of trespass prior to the Pearson judgment no doubt the Defendant-Respondent would seek to show that he or his privy was in lawful occupation long before 1920. It is perfectly clear that upon the expiration of three months from the date of the Green judgment, when no agreement had been reached and no referee appointed, Quaker Bob Manuel became in lawful occupation of the whole area edged red in Ex. B1 The suggestion of Appellant’s Counsel that the purchase of the building at a public auction some four years later was payment of compensation under the Green judgment is too absurd to be taken seriously. In the 1938-1939 suit it was “common ground that no compensation was in fact paid,” (the West African Court of Appeal judgment). From the 23rd June, 1920, at any rate, Quaker Bob Manuel had the right to occupy and build upon the site and to enjoy it for the use, of himself, his House members and successors. The present Defendant-Respondent is within those categories. But as to this I agree with the view that the Green judgment does not of itself give to the present Defendant-Respondent any rights of which Quaker Bob Manuel could not be divested during his life-time and I agree with ground 1 of the grounds of appeal that—
“The learned trial Judge has wrongly interpreted the words “for the use of himself, his house members and successors” in Mr. Justice Green’s judgment”.
The particular passage in this judgment to which I and ground 1 refer is as follows:-
“It is plain from Green J’s judgment that Quaker was not the sole grantee, if one may use that word: (and much of the evidence given and called by the plaintiff, is relevant only if the grantee were the sole grantee) the site of the building and the land appurtenant were to be held and enjoyed as if they had been granted in accordance with native law and custom “for the use of himself, his house members and successors,” The defendant claims to be Quaker’s successor – he is in fact his son – and in consequence has his own right of occupancy quite distinct from his father’s and that this right has not been lost because a house on the land has been sold, and that he is still entitled to occupy in accordance with Kalabari native law and Custom.”
But, although the Green judgment did not of itself give the Defendant-Respondent rights of occupancy, it did enable Quaker Bob Manuel to confer rights upon his house members and successors, and the evidence, accepted by the learned trial Judge is definite that Quaker Bob Manuel “allotted portions” to Karibo Quaker, Sokari Quaker, and the Defendant-Appellant. In my view it is beyond question that when the Defendant-Appellant went into occupation of the portion allotted to him he did so lawfully, and that nothing has happened since to deprive him of his right of occupation.
I do not accept the contention that he lost his right when Gladstone Bob Manuel bought at public auction the right, title and interest of Quaker Bob Manuel in the house: I think the view that that purchase bought out, as it were, all the rights of Quaker Bob Manuel not only to the house but also to the whole area of land edged red in Ex. B1 (rights which he had acquired by virtue of the Green judgment) is wrong. Pearson Asst. J.’s view of the effect of the sale was expressed in the Pearson judgment as follows:-
“In West Africa, buildings – fabric – do not attach to the realty, but remain distinct from it, as chattels. I hold that on that sale, only the fabric passed to the Defendants and not the land, or any property therein.”
and he was not overruled on appeal on this point.
The view of Manson, Asst. J., the trial Judge in the present case, is the same. He says “it was the house and the house alone which was sold and any, existing rights over the land were unaffected”.
I think that this view expressed in the last two quotations Manuel, goes too far in the opposite direction. The purchase of the house must have carried with it at least the right to occupy the area covered by the house (at any rate, so long as the house stood) and the right of access to the house, though not, in my view, effective to cancel other rights of occupancy to various parts of the whole area.
However this may be, it is now for the first time that the contention is put forward that Defendant-Respondent owing to the sale in 1924, lost any right of occupancy he may have had whether as allottee of Quaker Bob Manuel or as successor of Quaker Bob Manuel. The Plaintiff-Appellant did not put forward such a contention in his defence in the 1938-39 litigation, and the evidence is overwhelming that it is only now that he has sought to interfere with the Defendant-Respondent’s quiet enjoyment of the portion of the property in his occupation. The Plaintiff-Appellant did not even treat the action brought by the Defendant-Respondent in 1938 claiming ownership as a cause for forfeiture; he was content to establish his own ownership (which the Defendant-Respondent does not now contest) and to rebut the present Defendant-Respondent’s claim to possession of the whole area even the area then in occupation of the present Plaintiff-Appellant, a claim which the Defendant-Respondent no longer makes. So far as appears the Plaintiff-Appellant has never before complained of the use the Defendant-Respondent has made of the portion in his occupation, not even of his collecting rents from tenants and wood-splitters. Obviously if the question of the lawfulness of the Defendant-Respondent’s occupation and acts prior to the Pearson judgment had been put in issue by the Statement of Claim in this case, the Defendant-Respondent could properly have pleaded long possession, laches and acquiescence, and, in view of the trial Judge’s acceptance of the evidence for the defence, those pleas must have been upheld.
I think, however, that the learned trial Judge goes too far in his judgment when he says –
“As I hold that the defendant has a right to occupy this land (edged red in Ex. BI), no question of trespass can arise,”
and again,
“The plaintiff must allow defendant free and uninterrupted access to and full enjoyment of this land.”
That is to give to the Defendant-Respondent more than he is entitled to, and more than-he alleges he is entitled to.
The Defendant-Respondent does not now claim a right of occupancy to the whole land edged red in Ex. B1 but only to a portion thereof and he denies that he has been guilty of any act of trespass by the use to which he has put the portion of which he is in occupation. It is sufficient for the purposes of this suit to uphold this denial and to hold that the Defendant-Respondent has not committed trespass as alleged by the Plaintiff-Appellant and that consequently the Plaintiff-Appellant is not entitled either to damages or to an injunction and his claim fails and is dismissed.
For these reasons, and subject to the observations in the last two preceding paragraphs, I am of opinion that the appeal should be dismissed.
GRAHAM PAUL, CHIEF JUSTICE, SIERRA LEONE.
As I find myself in respectful disagreement with the learned trial Judge and with my learned brethren in this Court I find it necessary to express my views at considerable length.
The Plaintiff-Appellant is the head of the Bob Manuel Family and sued as such on behalf of the family. The Defendant-Respondent belongs to a branch of sub-house of the Bob Manuel Family known as the Quaker Bob Manuel Family which has its own land separate from that of the Bob Manuel Family’s. This suit was brought in the Kalabari Native Court but was transferred to the High Court where pleadings were ordered. The Appellant by his writ and Statement of Claim claimed damages for trespass committed by the Respondent on the Bob Manuel Family land; the trespass alleged being the erection of a shed or house and collecting land rents from wood splitters on the land in question. The Plaintiff-Appellant also claimed an injunction.
The Defendant’s case by his Statement of Defence paragraph 5 is as follows:-
“Defendant will plead he is rightfully possessed of the portion of the land in dispute occupied by him and that such occupation was previous to the judgments referred to by plaintiff and is in accordance with the judgment of the Supreme Court of the 23rd March, 1920 in a suit between Gladstone Bob Manuel versus Quaker Bob Manuel, defendant’s predecessor.”
By his Statement of Defence the defendant also pleaded that the plaintiff was not the head of the Bob Manuel Family and that the suit which started in the Kalabari Native Court was not by the order of transfer properly before the High Court, but both these points were abandoned by the defendant at the outset of the trial.
It is clear from the evidence at the trial that the origin of the dispute about this land was a Government-inspired sanitation scheme of about forty years ago under which the Bob Manuel Family land for the purpose of clearing bush, etc., and for that purpose alone, was divided into six parts so that each sub-house would attend to the Government health requirements in regard to a portion of the Bob Manuel Family land.
The land now in question is within the portion for the clearing of which the present Respondent’s sub-house was made responsible under that scheme. Some 17 or 18 years after that sanitation scheme the present Respondent’s father Quaker Bob Manuel built on this portion of the Bob Manuel land, and in consequence in 1920 the then head of the Bob Manuel House on behalf of the Bob Manuel Family brought an action in the Supreme Court against Quaker Bob Manuel for a declaration of title and recovery of possession of the land in question.
In that suit Quaker Bob Manuel pleaded that the terms of the health scheme division of land were that each of the Chiefs of the sub-houses should acquire on behalf of himself and his own members an absolute title to the piece of land apportioned to him, it having been given to him outright. He further pleaded that if no such absolute right to the land had been given to him by the head of the Bob Manuel House yet that the head of the Bob Manuel House stood by and allowed him to go to the very great expense incurred in erecting the building in question; and that it would be inequitable that the head of the Bob Manuel House should reap the benefit of this expenditure and that he was estopped in equity from recovering the land unless he recompensed the then defendant.
The Court in that case was satisfied on the evidence that no such right or title as Quaker Bob Manuel alleged was given to him by the Bob Manuel Family by the health scheme division, but the Court was also satisfied that the head of the Bob Manuel Family with full knowledge that Quaker Bob Manuel was erecting the building then in question, in exercise of a right claimed by him of building on the land in question, unreasonably stood by whilst Quaker Bob Manuel continued to do so, and that the head of the Bob Manuel House was by English principles of equity liable to compensate Quaker Bob Manuel for the expenditure which he incurred in building the house in question.
Upon that basis the judgment of the Supreme Court (Green, J. on 23rd March, 1920) proceeded as follows:-
“In the event of the parties not being able to agree, there must be an enquiry as to the amount reasonably expended to this date by defendant Quaker Bob Manuel in building the brick house erected by him on the land in question, and there will be leave for either party to apply to the Court to appoint a referee or referees with or without an umpire, and to fix the terms of reference for such an inquiry.
In the event of an amount being agreed upon in writing between the parties as compensation, or of the amount of expenditure of defendant as above mentioned being ascertained by the referees, then on payment of the sum so agreed or ascertained, the plaintiff shall be entitled to a declaration in the terms claimed by him in the action and to recovery of the said site together with all buildings thereon.
But if no amount can be agreed upon between the parties and no application for the appointment of a referee or referees has been made to this Court within three months from this date, or if within three months from the date when an amount has been agreed between the parties or ascertained by the referees or within such further time as this Court may order-
Plaintiff has not paid into Court the sum so agreed or ascertained then in such case defendant shall assume or resume occupation of the said site of the brick house erected by him together with the portion in front of the house as far as the river and the appurtenances thereto belonging and hold the same upon the same terms and conditions of Native law and customs as if he had applied to and received from plaintiff permission to occupy and build upon the same site for the use of himself, his house members and successors.”
Quaker Bob Manuel appealed to the Full Court against the judgment of Green. J. The Full Court dismissed the appeal on 19th January, 1922 and the judgment of Green, J. therefore stands and is founded upon by both the present parties who are respectively the successors of the parties in the 1920 case.
I find myself in agreement with the learned Judge when he said in his judgment:
“This case is decided, as it must be, upon the particular words of the grant in Green J.’s judgment where house members are mentioned specifically”
but I regret that I must definitely part company with the learned Judge in his construction of that judgment of Green J. and I therefore find it necessary to consider that judgment at some length.
The first point to note about that judgment is that it is based fundamentally not on native law and custom at all but expressly on the English principles of equity. Quaker Bob Manuel in that case had a two-fold defence: (1) that he was the absolute owner by virtue of the health scheme of division”. That part of his defence did involve native law and custom but it was completely rejected by Green, J. in his judgment so that Quaker had to fall back on, (2) that the plaintiff was “estopped in equity from recovering the land unless he recompenses the defendant.”
This part of the defence was not based on native law and custom at all but on English principles of equity and Green, J. upheld this part of the defence which was the basis of his judgment.
It is important to observe that apart from the English principles of estoppel (which have no place in native law and custom) as applied in the Green judgment, neither Quaker, nor any member of his family, nor any of his house members, nor any successor could claim any right title or interest whatever in the land in question. What then was the effect of the Green judgment as regards Quaker, his children, his house members and his successors?
First of all, as to the children or house members. To my mind it is absurd to suggest that by virtue of the Green judgment any separate individual right title or interest in the land vested in any one of Quaker’s children or his house members. That would be contrary to the whole tenor and reasoning of the judgment. Under the judgment, if the owners of the land, the Bob Manuel Family, paid to Quaker what he Quaker had spent on the land they were to get an order for possession of the land “together with all the buildings thereon.”
It was never suggested that any of Quaker’s children or any house members had any right title or interest in the land for which compensation was to be paid. It was never suggested that anyone other than Quaker himself was entitled to the benefit of the English principles of estoppel; and Quaker claimed and obtained from the Judge the benefit of these principles in regard not only to the structure of the house he built but also as an incident of his right title and interest in the house, these principles were extended by the Judge to cover ”the portion in front of the house as far as the river and the appurtenances there belonging.” That defined the right title and interest of Quaker in the house he had built at his own expense. It is most important to note that it was only because of, and in respect of, Quaker having built the house that Green J. gave him any right title or interest at all, that is to say that the right title and interest of Quaker as defined in the Green judgment were his right title and interest in the house.
It is true that Green, J. said that Quaker was to “assume or resume possession” of all that land “as if he had applied to and received from the plaintiff permission to occupy and build upon the said site for the use of himself, his house members and successors.” In adding that to his “grant” Green, J. was in my view simply ensuring that Quaker would not get any higher right over the land than that given by the ordinary well-known and judicially recognised tenancy under native law and custom, namely that the occupation was to be confined to himself, his family, his house members and successors and that he could not put strangers on the land – the right to put strangers on the land or collect rents being the well-known right of the absolute owner and not of the tenant under native law and custom. This is fundamental and recognised throughout West Africa.
After the Green judgment there was nothing to prevent Quaker moving himself, his family and his house members away from the land. He could sell his buildings subject again to the condition that if he sold to a stranger such stranger would get only the structure of the buildings, which he would have to remove unless he got permission of the Bob Manuel Family to occupy them. If he sold his rights to the Bob Manuel Family of course that point would not arise.
Here I may say that I disagree with the learned Judge when he said: “It is plain from Green J.’s judgment that “Quaker was not the sole grantee if one may use that word.” In my view Quaker was the sole “grantee” under the Green judgment, and the learned Judge was in my opinion wrong to reject as he expressly did, “much of the evidence given and called by the plaintiff “as irrelevant on the ground that it was relevant only if Quaker was the sole grantee.” Quaker in my view was under the Green judgment the sole grantee of the ordinary tenancy under native law and custom, the “grant” being restricted in the usual way.
I find it impossible to accept the suggestion that by virtue of the Green judgment a schoolboy son of Quaker acquired any right title or interest in this land separate from or independent of his father’s right. That however is one of the suggestions put forward by the present Respondent, and the Judge-wrongly in my view-accepted it, though at the same time apparently accepting the inconsistent suggestion that the Respondent was a “successor” of Quaker.
So much for the children and house members of Quaker. But what of the “successors”? The learned Judge in his judgment said:-
“The defendant claims to be Quaker’s successor – he is in fact his son — and in consequence has his own right of occupancy quite distinct from his father’s and that this right has not been lost because a house on the land has been sold, and that he is still entitled to occupy in accordance with Kalabari native law and custom”.
To my mind that passage shows a serious confusion of thought. The Respondent, as his father’s successor, manifestly could not acquire any right title or interest until his father’s death. If his father, instead of allowing his creditors to attach and sell all his right title and interest in this land as given to him by the Green judgment had retained that right title and interest up to his death the Respondent would doubt have succeeded to such right title and interest.
It is the moment of Quaker’s death which is the material time for investigating what, if anything, there was for Quaker’s successors to succeed to. In my opinion the learned Judge was wrong in holding as he did in the passage just quoted that the Respondent as his father’s successor obtained a “right of occupancy quite distinct from his father’s. On the contrary, as the “successor” of his father he could take no other right than his father’s. And if, as I propose to show, Quaker before his death had been divested of all the right title and interest which by the English principles of equity he had obtained under the Green judgment (as expressly defined in the Green judgment) then there was no right title or interest left in Quaker for the Respondent to succeed to.
In 1924, when the Respondent was still a schoolboy, by a sale by public auction under a writ of Fi. Fa. and Certificate of Purchase Gladstone Bob Manuel on behalf of the Bob Manuel Family acquired all the right title and interest formerly held by Quaker (the judgment debtor) in the house which he built. Quaker at this time was still alive so nothing had then passed to his “successors”.
It is perhaps relevant here to emphasize that what was sold under the Writ of Fi. Fa. was all the right title and interest formerly held by Quaker in the building. Sale of real property under a writ of Fi. Fa. is not of course possible under English law, and in Nigeria such a sale is governed by our Rules of Court under which it is the right title and interest of the ‘judgment debtor in the property which is sold. This fundamental fact is continually being overlooked and cannot be too emphatically stated.
The learned Judge clearly in my view misdirected himself on this very point when he said in his judgment:-
“There has been argument in this action as to what exactly was sold— whether the whole site of the house and the house or the house only. I have no doubt at all that it was only the house, the structure, which was sold. This is plain from the Certificate of Sale of the District Officer and the receipt for the money “.
From that passage it is apparent that the learned Judge ignored altogether that it was all the right title and interest of Quaker in the house that had been sold.
It is to my mind absurd to suggest that where the titular owners of the land bought at the Fi. Fa. sale all the right title and interest of Quaker they did not acquire all that right title and interest as the same had been expressly defined in a suit to which both they and Quaker were the parties. I cannot bring myself to agree that when they bought all the right title and interest of Quaker they acquired only a right to the “structure,” that is to say to only a small part of the right title and interest of Quaker as defined in the judgment to which Quaker and they were parties. In fact in estimating the value of Quaker’s right title and interest and buying at the Fi. Fa. sale the Bob Manuel Family were entitled to rely on the definition of that right title and interest in the Green judgment.
The next important part in the history was the death of Quaker which happened in 1932, that is eight years after the Bob Manuel Family had acquired all the right title and interest which Quaker had obtained on this site by the operation of the English principles of equity against them in the Green judgment.
The next step was a most important one, the importance of which was in my opinion not adequately realised by the learned Judge. The present Respondent in 1938 brought a suit against one Anthony Karibi Bob Manuel and the present Appellant, claiming damages for trespass and an injunction in regard to the same land. The case was brought in the Kalabari Native Court but was transferred to the High Court by the District Officer “Since the plaintiff states (1) the title was determined in a judgment of the Supreme Court in 1920 and confirmed by the Full Court therefore the case is too full of legal points for the Native Court to settle satisfactorily”.
In that suit by his Statement of Claim the present Respondent quite blatantly resuscitated the false claim of title based on the 1904 health scheme division. It is clear that the plaintiff claimed to be titular owner (and as successor in title of his father as head of the Quaker Bob Manuel House) of all the land marked with a red border in the plan W.B. I. In spite of the fact that the defendant in that suit pleaded res judicata and that both parties expressly relied on the 1920 judgment of Green, J., the High Court (Pearson, J.) gave judgment for the present Respondent in that suit. On appeal that judgment was very properly set aside by this Court which held that Pearson, J. had completely misunderstood the nature of the plaintiff’s claim which was based on the assertion that the land in question was the absolute property of his branch of the family. This is precisely the same issue as was litigated in 1920.
In giving judgment this Court said:-
“It is common ground that no compensation was in fact paid and the effect of the judgment was therefore to give the defendant (the present plaintiff) a right of occupancy under native law and custom only “.
As the question of the “right of occupancy” was not in issue before Pearson, J. that passage of this Court’s judgment was of course obiter dictum. But it was also most materially inaccurate as it expressly proceeded upon a serious mistake of fact namely that the defendant in the 1920 suit was the plaintiff-respondent in the 1938 appeal. In the passage quoted, the words “(the present Plaintiff)” were just absolutely wrong. No one doubts that the defendant in the 1920 suit/got “a right of occupancy under native law and custom only” but that defendant was Quaker Bob Manuel and not the present Respondent. In my respectful opinion that inaccurate obiter dictum was most misleading and unfortunate and by its mistake of fact begged the whole question in the present case.
The important point about the 1938 suit brought by the Respondent is that in it he based his claim to all the land edged red in W.B.I. on the title acquired by his predecessor Quaker Bob Manuel as head of and representing the Quaker Bob Manuel House to which he the Respondent had succeeded on Quaker’s death – not a hint or suggestion that any right to any part of the land had been acquired by the Respondent as an individual during the lifetime of Quaker Bob Manuel. The learned Judge in the Court below in considering the evidence did not, I think, fully appreciate the significance of the Respondent’s express attitude in the 1938 suit which to my mind makes it impossible to believe in the truth or bona fides of the story he now puts forward.
I find myself quite unable to accept or even to treat seriously, the suggestion, now for the first time put forward by the Respondent, that before the sale in 1924, at a time when he was a school boy, he acquired for himself individually any right title or interest whatsoever in any of the Bob Manuel Family land or that he is now rightfully in occupation of the Bob Manuel Family land. He does not plead in his defence ownership by long possession, acquiescence by the Bob Manuel Family, or estoppel in any form. He bases his defence on his rights under the judgment of Green, J. in his Statement of Defence, and in his evidence he seeks to eke out that plea with the inconsistent statement that at some unspecified time after the Green judgment Quaker “allotted” a portion of the land to him. This extraordinary statement is corroborated only by one of the Respondent’s house members whose interest to do so is obvious. If the learned Judge had properly appreciated the inconsistency between the Respondent’s claim in 1938 and his present story I cannot think that he would have accepted the present story.
If the judgment now under appeal stands it means that the Respondent is given the right to occupy part of the Bob Manuel Family land and to put rent-paying strangers on it, a right which even Quaker Bob Manuel himself was certainly not given by the Green judgment or by the Bob Manuel Family and could not “allot ” to his schoolboy son.
If in the present case the Respondent had pleaded acquiescence, or standing by, on the part of the Appellant, or any other estoppel, the Court might perhaps have done as was done by Green J. by holding on the English principles of equity (not, be it noted, by native law and custom) that the Bob Manuel Family could only get the injunction claimed on payment of compensation to the Respondent for the shed built by him. But the Respondent put forward no such plea so that the point does not arise.
The Appellant’s Statement of Claim founded upon trespass committed by the Respondent “acting under a judgment … of 8th March, 1939.” It is to my mind not an adequate defence to that claim for the Respondent to show (and in my view this was all he even attempted) that the trespass alleged did take place but that it started before and continued and continues after the date of the judgment of 8th March, 1939. Trespass, is in its nature, a continuing tort. Even if the Appellant had brought action and obtained judgment for the full damages suffered by the Respondent’s trespass up to 8th March, 1939 he could still bring another action for the continuation of the trespass after that date.
When it is analysed and stripped of the nonsense of his being a “grantee ” under the Green judgment, a “schoolboy squatter,” or an “allottee” of his father, the Respondent’s present case appears to be substantially that he is and has been on the land in question by leave or licence of the undoubted and admitted titular owners, the Bob Manuel Family. Even accepting that as the real position, anything done by the Respondent in excess of the rights given by the leave or licence is in law a trespass. I can find no suggestion in the pleadings or in the evidence or in the judgment of the learned trial Judge that the Bob Manuel Family ever gave to the Respondent, to Quaker himself, or to anyone else leave or licence to put rent-paying strangers on the land or collect the rents. Nor could Respondent’s Counsel refer to any evidence of this, Yet the Respondent in his sworn evidence expressly admits that he does collect rents -in respect of this land and that in my view is an admission by the defendant of the trespass alleged.
It may be that in spite of the misdirections to which I have drawn attention and in spite of the obvious and inconsistent lying of the defendant about his schoolboy squatting, “allotments,” and succession, the findings of fact of the learned trial Judge as to the occupation by the Respondent (other than his putting wood-splitters on the land and collecting rents) must stand. Although I am not myself satisfied with these findings on the evidence as recorded, there is no doubt that the plaintiff’s evidence as to the building by the defendant was unsatisfactory.
As regards that part of the trespass which consists of putting tenants on the land and collecting rents from them, I am however very definitely of opinion that upon the express admission of the defendant the judgment of the learned trial Judge ought not to stand.
To allow the Respondent to put tenants on this land or to collect land rents from tenants on it would be to give him the important practical right of the titular owner and so at last, to an important extent, enable this Quaker Bob Manuel House quite wrongly to get what Quaker wrongfully tried to get in 1920 and what the Respondent wrongfully tried to get in 1938. With all respect to the learned trial Judge and to my learned brethren in this Court I cannot bring myself to agree to what I regard as a deliberate, persistent, unscrupulous, and ingenious attempt by members of this sub-house to get rights to which they are not entitled. The learned Judge did not to my mind deal at all with this point. All he says in disposing of the whole claim of the plaintiff is:-
“As I hold that the defendant has a right to occupy this land (edged red in Ex. W.B.I.) no question of trespass can arise.”
From that passage it is clear that he completely ignored the well-established difference between a right of occupation of a tenant under native law and custom (by himself and his family and servants or house members). and the right to put strangers on the land and collect rents from them. Very many cases have come before the Courts in which persons given a tenancy under native law and custom have fraudulently attempted to extend that right to include things which are well-known to be excluded from a tenancy under native law and custom. In this case we have in my opinion just such an attempt by the Respondent and it ought in my opinion to be stopped.
In my opinion, which is of course not the judgment of this Court, the appeal should be allowed, the judgment set aside, including the order as to costs, and the case sent back to the Court below to assess the damages in respect of the Respondent’s collecting rent from wood-splitters on the land and to give judgment for the Appellant for such amount and for an injunction to restrain the Respondent from putting any strangers on the land or collecting any rents in respect of the land and from extending in any way his occupation of Bob Manuel Family land.
The Appellant would in my opinion be entitled to half the costs in the Court below.
BAKER, J.
I concur with the judgment delivered by the learned President.
Order
The appeal is dismissed, but it is ordered that the following two passages shall be expunged from the judgment of the lower Court, viz:-
(a) As I hold that the defendant has a right to occupy this land (edged red in Ex. W.B.1) no question of trespass can arise”, and
(b) The plaintiff must allow defendant free and uninterrupted access to and free enjoyment of this land “.
The Respondent is awarded costs in this Court assessed at 35 guineas.
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