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JOHANNES ENGLAND
V.
J. MOPE PALMER
WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
7TH DAY OF FEBRUARY, 1955
2PLR/1953/27 (WACA)
OTHER CITATION(S)
2PLR/1953/27 (WACA)
(1955) XIV WACA PP. 659 – 661
LEX (1955) – XIV WACA 659 – 661
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BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
SMITH, C.J., SIERRA LEONE
COUSSEY, J.A.
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BETWEEN:
JOHANNES ENGLAND – Appellant
AND
J. MOPE PALMER – Respondent
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ORIGINATING COURT(S)
Appeal by the defendant: No. 25/54.
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REPRESENTATION
C. Ziser — for Appellant
R. W. Abeoku-Betts — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Suit for trespass – Plaintiff averring ownership – Plaintiff not averring possession – Possession the issue – Amendment in appeal to aver possession
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeals in Civil Cases – Amendment to settle controversy – Proper treatment of
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CASE SUMMARY
In the Court below the plaintiff sued for trespass, alleging that he was the owner of certain land and that the defendant trespassed on it; the defendant denied these allegations; the trial Judge found that the plaintiff bad possession to support an action for trespass and that the defendant had committed trespass, and awarded damages. The defendant appealed on the ground that although the plaintiff had not averred possession, the Court below allowed him to prove possession and found possession in plaintiff’s favour. The Court of Appeal allowed the plaintiff to add the words “and in possession “after the word “owner” in his statement of claim.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal) that:
(1) In a trespass action an averment of ownership is consistent with and amounts to an averment of possession, for ownership may be proved by proof of possession.
(2) The allegation, in such an action, that the plaintiff is owner puts possession and not ownership in issue, as possession is all that he need prove.
Per curiam: It was right, though perhaps not necessary, to amend the pleadings for the sake of using the evidence to settle the real controversy between the parties.
Cases cited:-
(1) Browne v. Dawson (1840). 12 Ad. &- Ellis 624
(2) Whittington v. Boxall (1843), 12 L.J.Q.B. 318; 114 E.R. 1201, 1203
(3) Jones v. Chapman (1847), 2 Ex. 812
(4) Heath v. Milward, 132 Engl. R. 39
(5) Ababio IV v. Quartey and Another, P.C. Appeal No. 94 of 1914
(6) Seklin v. Little, G T.L.R. 366
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MAIN JUDGMENT
The following judgment was delivered:
COUSSEY, J. A.
This was an action of trespass for breaking and entering the plaintiff’s land situate at New England, Freetown, and removing therefrom a quantity of seynite boulders. By paragraph 1 of the statement of claim the plaintiff averred that he is the owner of the land and the boulders thereon; that the defendant occupied land on the opposite side of a stream which is the eastern boundary of the plaintiff’s land; that in and since the month of March, 1951, the defendant committed the trespass complained of; and the plaintiff claimed damages and an injunction. By paragraph 2 of his statement of defence the defendant denied the trespass alleged in paragraph 3 of the plaintiff’s statement of claim. Although the defendant did not specifically traverse the plaintiff’s averment that he was the owner of the land the subject of the suit, he did in paragraph 5 of the defence deny generally every allegation of fact in the statement of claim contained except those admitted by him.
In the course of a lengthy hearing the defendant contended that the land from which the seynite boulders were removed by his servants belonged to him, and evidence of title was gone into.The learned Judge who tried the action observed, in the course of his judgment, that from the nature of the pleadings the Court was not called upon to decide who was the owner of the land. He pointed out that the defendant had not pleaded ownership in himself and that the defence delivered amounted to a simple denial of the trespass alleged. Much of the defendant’s evidence went to ownership rather than to who was in possession of the land at the material time. The learned trial Judge having pointed this out, considered and commented adversely upon the case of ownership put up by the defendant. Addressing himself to the main issues whether the plaintiff was in possession of the land at the material time and.” if so, whether the defendant or his agents had trespassed thereon, the learned Judge in a full and reasoned judgment had no difficulty whatsoever, after inspecting the locus in quo and reviewing the evidence, in finding that the plaintiff had possession to support an action for trespass and that the defendant did trespass on the land and by his servants remove boulders whereby the plaintiff had suffered damage which was assessed and awarded, as to £80 special damage and £100 general damages.
From this judgment the defendant appeals on the grounds-
(1) that the Court erred in allowing plaintiff to prove possession when it was not specifically pleaded in his statement bf claim;
(2) that the plaintiff alleged ownership and not possession as his cause of action and the Court therefore erred in finding for the plaintiff on a possession which was not pleaded;
(3) that the plaintiff, being a trespasser on the land without any possessory right, had no possession to maintain an action in trespass.
In support of his ground learned counsel for the defendant-appellant submitted that if the plaintiff in his statement of claim had averred possession as distinguished from ownership of the land, the defence would have been different and other evidence would have been called. In support of his argument he cited Browne v. Dawson (1). In my opinion that case does not assist the defendant- appellant.
In a trespass action an averment of ownership is consistent with and in my view amount” .to an averment of possession, for ownership may be proved by proof of possession. ” As mere possession is sufficient to maintain trespass against anyone who cannot show a better title, the plaintiff’s’ allegation that the defendant broke the close of the plaintiff’.” (the use of the word’ close’ being an averment of ownership), “is satisfied prima facie by proof that the defendant broke a close in the possession of the plaintiff; and this is not only prima facie, but ultimately, sufficient against anyone who cannot avoid the effect of it by shewing that, notwithstanding the actual possession by the plaintiff he the defendant has a better right to it-per Lord Denman, C.J., in Whittington v , Boxall (2)-a proposition which is not affected by the later case of Jones v. Chapman (3).
It follows that as far as concerns him an allegation that the plaintiff is owner puts possession and not ownership in issue, for it cannot be supposed that the plaintiff means to take upon himself a larger amount of proof than the law requires for the purpose of an action in trespass-Heath v. Milward (4). And that is how this issue stood in the Court below when the action went to trial.
Although, on further reflection, I doubt if it was strictly necessary, this Court allowed the plaintiff-respondent to amend the statement of claim by adding the words ” and in possession ” after the word ” Owner ” in paragraph 1 of the statement of claim -4=he effect, however, was not to alter the character of the action for, as already pointed out, the plaintiff claimed, in effect, as owner in possession. As the case was fully contested on possession and all the same matters were then discussed, the amendment caused no injustice to the defendant-appellant. That this is so is apparent from the reply to the amended statement of claim which the defendant-appellant was granted leave to file in this Court and which does not raise any issue upon which relevant evidence had not already been fully given.
Their Lordships of the Privy Council laid down in Ababio IV v. Quartey and Another (5) that” the Court ought to have allowed all the necessary amendments that were required for the purpose of enabling the use of evidence that bad been obtained for the purpose of settling the real controversy between the parties “. And in Seklin v. Little (6) on a motion for a new trial, the Court, Denman, Charles and Vaughan-Williams, J J ., amended the statement of claim in an action for slander to conform with the words proved at the trial, which were not those set out in the statement of claim, although the Judge at the trial had offered plaintiff’s counsel an amendment of the pleadings and it had been refused.
The remaining grounds of appeal may be disposed of in a few words.
There was ample evidence to support the findings of fact of the learned Judge already referred to. Upon those findings the judgment appealed from is right. No satisfactory reason has been shown for interfering with the damages awarded and I would therefore dismiss the appeal with costs to be taxed.
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FOSTER-SUTTON, P.
I concur.
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SMITH, C. J.
I concur.
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Appeal dismissed.
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