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BEFORE THEIR LORDSHIPS:
OLUMUYI WA JIBOWU, AG. F.C.J. (Presided and Read the Judgment of the Court)
M.C. NAGEON DE LESFANG, F.J.
MYLES JOHN ABBOTT, AG. F.J.
LAND LAW – Trespass to land – Communal property – Who can sue.
PRACTICE AND PROCEDURE – APPEAL – Damages – Attitude of Appellate Court.
Mr. Abiodun Akerele -for Appellants.
Respondent not represented.
JIBOWU, AG. F.C.J. (Delivering the Judgment of the Court):
This is an appeal by the appellants against the judgment of Ademola, J., as he then was, dated the 11th May, 1954, whereby he entered judgment for the respondent, then plaintiff, for £50 damages for trespass committed by the defendants, now appellants, on Meleku farm in possession of the plaintiff with 100 guineas cost.
Three grounds of appeal were filed by the appellants but only the 1st ground was argued. The ground argued reads:
“The learned trial Judge erred in law in holding that the plaintiff who sued in a representative capacity was in possession and thereby awarding him damages for trespass when evidence goes to show that the land was owned individually.”
The plaintiff in the case was the Bale of Togbunrin, Abigi, in Ijebu Waterside and he sued on behalf of himself and the people of Togbunrin on a claim which reads as follows:
“The plaintiffs claim against the defendants, jointly and severally the sum of £1,000 for trespass committed by the defendants on the 1st October, 1952, when they unlawfully entered Meleku farm at Togbunrin, Abigi Ijebu Waterside, the property of the Togbunrin people and in the possession of the plaintiff on behalf of the said Togbunrin people.
The defendants uprooted and removed the plaintiffs boundary pillars on the said farm, reaped and carried away palm fruits and destroyed other crops of the plaintiff.”
The statement of claim filed shows that the defendants were the inhabitants of Agodo Village and paragraph 6 thereof amplified the damage done in the following terms:
“The Defendants uprooted and removed the 3 boundary pillars reaped the plaintiffs palm fruits, destroyed the plaintiffs 14 drums of palm oil, each drum containing 48 gallons, seized and carried away some and then destroyed the remaining yam tubers, in the plaintiffs barn which held 140 rows of tubers, each row containing 30 tubers, uprooted a large area of cassava plantation, cut down and destroyed plants, seized fighting nets and fish traps in Meleku River and seized the fish trapped therein.”
Both parties agreed as to the land in dispute which was shown in plaintiff’s plan Exhibit “A,” and defendant’s plan Exhibit “B.”
The defendants denied the trespass and claimed the land in dispute. In a well considered judgment the learned trial Judge found that the defendants had trespassed on the land in dispute. The learned Counsel for the appellant himself agreed that there was evidence to support the finding of trespass made against the appellants, and in that view I concur. The learned trial Judge found the allegation that three concrete pillars marking the boundary between Togbunrin people’s land and Iyelu people were removed by the defendants proved. In my view this finding of fact is well supported by the evidence before the learned trial Judge.
The two affidavits supporting the application for an order of court that the plaintiff be allowed to bring the action on behalf of himself and of the people of Togbunrin show that, at a meeting of the people of Togbunrin held on the 9th October, 1952, a resolution was passed by Togbunrin people appointing the plaintiff their Bale to bring the action “for himself and on behalf of the entire people of Togbunrin.” There was evidence before the learned trial Judge to show that the land in dispute was communal land of Togbunrin people, that people farmed on it with the consent of the Bale, and that strangers, Urhobo people, were allowed to settle on the land for the purpose of cutting palm fruits and making palm oil on payment of annual tribute in cash and kind to the Bale, and that such tribute paid was shared by members of the community.
The evidence of Eyiowuawi, 3rd plaintiffs witness, was: “The plaintiff is the Bale of Togbunrin people and he holds the land for Togbunrin people.” The 7th plaintiffs witness, Raimt Ayimora, stated: “I have been farming in Togbunrin land for about ten years. I shift to different places every year… Each of us has his own farm land and his own hut. We are related to the plaintiff; he is our father and we own the land jointly with him.”
He stated further: “Any Togbunrin man can farm on portion of the land. He needs only the consent of the Bale as to where he should farm; other farmers would show him vacant land for farming. Any portion taken by him does not become his altogether but belongs to the community.”
The removal of boundary pillars of communal land and entry on communal land constitute a trespass to communal property for which the head of the community, the Bale, could sue. The teamed Counsel for the appellants also agreed that the Bale could sue for this trespass.
This admission, in my view, knocks the bottom out of the appellant’s first ground of appeal.
In awarding damages the learned trial Judge obviously did not take into account the special damages suffered by the plaintiffs tenants and other Togbunrin people who suffered individual losses. The award of £50 damages cannot be said to be excessive and will therefore not be disturbed by this Court. The appeal fails and I would dismiss it. As the respondent did not appear, I would make no order as to costs.
DE LESTANG, F.J.: I concur.
ABBOTT, AG. F.J.: I concur.