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S. C. 428/1961

13TH NOVEMBER, 1962.

3PLR/1962/53  (FSC)






JOHN IDOWU CONRAD TAYLOR, F. J. (Read the Judgment of the Court)








(for themselves and on behalf of the people of ODAGA)



Customary Law-Eastern Nigeria-Trespass to land-Communal lands held under Native Law and Custom-Persons holding title to communal lands deemed in lawful possession-tight of Action for trespass.

Trespass to land-Trespass by several persons acting in concord-Liability joint and several.

Torts—Liability-Joint and several liability.

Customary Law-Eastern Nigeria-Communal Lands-Allocation-Effect.



Davies, Q.C., (with him Coker) for the Appellants.

Oputa (with him Whyte) for the Respondents.



TAYLOR, F.J. :- The plaintiffs / respondents suing for themselves and as representing the people of Odaga claim against the ten defendants jointly and severally as follows :-


£500 damages for trespass in that on or about the month of January, 1957, the defendants and their people did break and enter into the plaintiffs’ land known and called “Ema” and therein cleared the bush made farms therein, collected palm fruits there from and did diverse manners of work therein without the leave or license of the plaintiffs and their people. The defendants and their people still continue their several acts of trespass on the said land.


The defendants are admittedly natives of Agada No. 1. It is not disputed in this appeal that in consolidated suits P. 11 / 52 and P 15 / 52, the Plaintiffs have previously obtained a judgment against the people of Agada No. 1 for a declaration of title to and injunction in respect of the land in dispute, called by the plaintiffs “Ema” and by the defendants “Ipiolock”. The Learned Trial Judge after hearing evidence on both sides held, inter alia that:-


I am satisfied and I find as a fact from the evidence before me that the land in dispute in this case before me is the land in dispute in the 1952 case.


I am satisfied and I also find as a fact from the evidence before me that the defendants went and farmed on the land in dispute in January 1957 as alleged by the Plaintiffs.


For these reasons I must find for the plaintiffs. As regards damages I am satisfied from the evidence before me that the sum of £500 claimed by the plaintiffs is reasonable for the trespass alleged.


I therefore give judgment for the plaintiffs against the defendants jointly and severally for the sum of £500 damages for trespass committed by them on plaintiffs’ land called “Ema” and 120 guineas costs.


The only grounds of appeal argued at the hearing of the appeal against this judgment of Savage, J., of the High Court of Port Harcourt, were the six additional grounds contained in the application of the 13th October, 1962. Grounds 4 and 5 of such grounds may be disposed of in the following manner:-


The former alleges that:-


The Learned Trial Judge erred in law in giving judgment against the 9th defendant with the alleged acts of trespass.


There can be no doubt that the evidence of the second plaintiff witness under cross-examination by the 9th defendant filled the gap in his evidence in chief and implicated this defendant.


On Ground 5, Learned Counsel for the Appellants was under a misconception that the ground was one dealing with damages and not costs. It reads thus:-


“Costs awarded in the suit are excessive.” There is no substance in these two grounds of appeal and they are dismissed. Chief Davies, Q.C., for the appellants, rested his arguments on the following contentions contained in the first and second grounds of appeal, which urge that:-


(i)      The Learned Trial Judge erred in law in dealing with the defendants/appellants jointly instead of severally for the alleged trespass.


(ii)     The Learned Trial Judge erred in law in giving judgment for the plaintiffs when there was no evidence before him that the plaintiffs were the persons in possession of the area upon which the alleged trespass was committed.


Learned Counsel dealt with these two grounds together and referred us to various allegations contained in the evidence of the second plaintiff witness as to the acts done by each defendant on the land in dispute and compared them with the statements contained on the plaintiffs’ plan, exhibit “5”, and argued that each particular act of each defendant was a trespass for which he should have been sued separately. Further, contended Counsel, the person in possession of the particular area trespassed upon by one or more of the defendants is the person entitled to sue. These submissions, in my view, overlook the following important points –


  1. That by virtue of the fact, which is not contested, that the respondents have been declared the owners of the land in dispute, the latter is communal land.


  1. That throughout the evidence of plaintiff witness 2 he talks of the land of the people of Odaga, and the word “We” appears consistently throughout his evidence. There is therefore nothing on the record to show that any portion of the land has been “allocated” or “allotted” by native law and custom to any particular individual in the sense in which the word was used in the case of Tongi v. Kalil 14 WA.C.A. 331. Foster Sutton, P said at page 332 that:-


It is obvious that Counsel for the defendant and the Learned Trial Judge lost sight of the fact that under Native Customary Law, once land has been allocated to a member of the tribe by the Tribal Authorities such member acquires a right to occupy the land which is transmissible to his successors. Moreover trespass is only actionable at the suit of the person in possession, actual or constructive, at the time of the trespass committed unless the trespass has caused permanent injury to the land affecting the value of the inheritance when the person entitled in reversion may sue for the injury to his interest………………….


This was a case dealing with Native Law and Custom in Sierra Leone, and though in some instances the custom is similar to that practiced in some parts of Nigeria, one must further give allowance to the fact that in many parts of the Eastern Region of Nigeria where rural land is concerned, shifting cultivation is practiced, with the result that an “allottee” or “grantee” rarely receives a grant of the identical area on each farming season.


The evidence by the second plaintiff witness supports paragraphs 4 and 7 of the statement of claim where it is averred that:-


(4)     The Plaintiffs are owners in possession of the land in dispute and have been so from time immemorial. This issue is also Res Judicata by reason of the suits set out above.


(7)     In or about January 1947, in utter contempt of the judgment aforesaid, the defendants broke and entered upon the land in dispute and therein uprooted boundary pillars, cleared the bush, made farms thereon, collected palm fruits there from, and did diverse manners of work without the leave and licence of the plaintiffs and thereby disturbed the peaceful possession and enjoyment of the land by the plaintiffs. The plaintiffs have suffered heavy damages.


The respondents have shown communal ownership and possession of the land in dispute, and have shown that this land has been broken into, and entered, by the ten defendants on the day in question, in the company of a large crowd. It seems to me that they are all liable jointly and severally. The Learned author of Halsbury’s Laws of England, 1st Ed., Vol., 27 says, at page 487, that :-


Where two or more persons have so conducted themselves as to be liable to be jointly sued, each is responsible for the injury sustained by reason of their common act. Where several persons so concur in some act or default which is tortious that each of them is responsible for the breach of duty, they are called joint tort fesors. A person whose legal right is injured by a tort so committed has a right of action against any or all of such joint tort fesors unless he stands in such a relation to one of them as to be responsible for his act of default.


These two grounds of appeal must, in my view, fail. There has been no ground of appeal filed on the issue of damages, and no matter what my view may be on this point, the sum awarded must stand. The only other ground which warrants any comments is 3 (c), which urges that:


The (Trial Judge) admitted the plan in evidence and acted on it when the surveyor was not called upon to explain the obvious contradictions on the face of the plan.


Chief Davis, in arguing this ground, referred to several passages in the evidence of the second plaintiff witness, and compared them with certain remarks on the plan to show that there was a conflict between the two. He laid great stress on the fact that the plan, exhibit “Y’, made on the 30th July, 1957, still showed the numbers on the pillars alleged to have been rooted out by the defendants in January, 1957. It was pointed out to learned counsel that the evidence of the second plaintiff witness showed that the surveyor was called to put pillars around the land in dispute shortly after the Judgment in W.A.C.A. 59 /55 delivered on the 9th December, 1955, in the consolidated suits to which reference has been made. He may have made field notes showing the numbers of the pillars at the time, which would later enable him to show these on exhibit “Y’.


The case in the court below, as can be seen in the cross-examination of the plaintiffs’ witnesses as well as in the evidence of the defendants and the address of Counsel, boiled down to whether the ten defendants before the court were among those trespassed on the land in question. It was a matter of identity; a matter of fact. The Trial Judge was satisfied that the defendants did so trespass, and their was evidence on which he could so find.


I would dismiss this appeal with costs at 17 guineas to the Respondents against the Appellants jointly and severally.


BRETT, F.J. : I concur


BAIRAMIAN, F.J. I concur.


Appeal dismissed


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