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SUPREME COURT OF NIGERIA
23RD OCTOBER, 1964.
SUIT NO. FSC 256/1963
BEFORE THEIR LORDSHIPS:
EDWARD ATTAH AND OTHERS
(for themselves and on behalf of
OBI CHUKWURAH NNACHO AND OTHERS
(for themselves and on behalf of
Chief F.RA Williams (with him At Iguh for the appellants.
REMEDIES – Damages – Defendants sued in trespass as representing community – Award
PRACTICE AND PROCEDURE – Civil Action – Practice and Procedure – Consolidation of suits – pleadings complete in one, not in the other – Trial without objection – Area of land in dispute – Pleadings and plan – Injunction against community, with exception of certain persons.
TORTS AND PERSONAL INJURY – Trespass – Defendants sued as representing community – Damages.
IDIGBE, J.S.C. (Delivering the Judgment of the Court): The respondents claim from the appellants a declaration of title to, and an order of Injunction in respect of, various parcels of land together verged pink on exhibit 2; they also claim £600 damages for the destruction by appellants of palmwine and Otosi trees on Ugwoji land. Ugwoji land is one of the several pieces of land within the area verged pink in exhibit 2. The first three appellants,. who are members of the Nnadi-Nsugbe community are sued as representatives of that community: (hereafter referred to as Nnadis); and the other four defendants, tenants of Nnadi-Nsugbe community are sued In their personal capacity.
Substantially, the case for the respondents is as follows. Pursuant to inter-tribal wars between the ancestors of the Nnadis and another community, known as the Eddas, the former were obliged to flee from their original home at Aria Onumili near Nteje and thereafter, some of them came to Nsugbe and were given shelter by the people of Ogbe Ndida in Offianta in Nsugbe. This happened several years ago. Later there was a disagreement between the refugee residents at Offianta and the people of Ogbe Ndida who then drove them away. These refugees from Afia Onumili, who later formed the nucleus of the Nnadis now involved In the present dispute, then sought refuge with respondents who allowed them a piece of land upon which they settled. That parcel of land is verged green on the plan Exhibit 2, and it adjoins the Eastern boundary of the land in dispute which respondents claim to be their exclusive property. Respondents also claim that they always farmed, and placed tenants, on the land in dispute; they also claimed that appellants always kept within the land verged green and were only allowed to farm on lands outside that area by permission of the respondents. In 1940 however, appellants entered the land in dispute without first obtaining the permission of the respondents and thereafter placed tenants thereon. When asked by the respondents to leave the [arid in dispute, appellants claimed ownership of it and consequently respondents brought this action in the Edomani Native Court, which action was transferred to the High Court and later became Suit 0/51/52. Thereafter the appellants brought a Cross-action against the respondents in the Edomani Native Court, claiming title to a large portion of the area verged pink in Exhibit 2, together with the area thereon verged green. This case which was also transferred to the High Court later became Suit 0/77/53.
Both suits-0/77/53 and 0/51/52-were later consolidated for trial and parties in suit 0/51/52 duly filed and delivered their pleadings. When, however, hearing in this case commenced, only the statement of claim in 0/77/53 was filed and no application for extension of time to file a statement of defence was made. In their defence to suit 0/51/52, appellants claimed ownership of the land in dispute alleging also that they always farmed and placed tenants thereon. Appellants, however, stated in one of the paragraphs of their statement of defence that the land in dispute was the area shown yellow on their plan, Exhibit 5, which indeed embraces “part” of the land verged pink on Exhibit 2 and the area thereon verged green. In another paragraph of their statement of defence, appellants denied “without reserve,” the respondents’ claim to the entire area verged pink on Exhibit 2: (paragraph (3) of the statement of defence in 0/51/52 refers). The learned Judge after reviewing the evidence before him, disbelieved the case put forward by the appellants and, in favour of the respondents, he made an award of (a) title to “the area of land verged pink’ on Exhibit 2 and (b) £300 damages for trespass; he further ordered that the appellants be restrained from “further interference with the area verged pink’ on Exhibit 2. Against this judgement appellants appeal to this Court.
One of the principal grounds of appeal strenuously argued before us was that the learned trial Judge erred in law by proceeding with the trial of suit 0/51/52 without trying also suit 0/77/53, since both cases had earlier been consolidated for trial. It has already been observed that when hearing began in the Court below, pleadings had not been completed in suit 0/77/53. At the hearing, appellants neither asked for a stay of proceedings pending delivery of statement of defence in suit 0/77/53, nor for judgement in default of pleadings; they however took part throughout the entire hearing. The substance of the submission urged in support of this ground of appeal was that in the circumstances of the trial of this suit, the learned trial Judge in effect “deconsolidated” the suits and that as he had no jurisdiction to “deconsolidate” the suits, his purported trial of the case was in error of law. Learned Counsel for appellants, Chief Rotimi Williams, referred us to the case of Lewis and another v. Daily Telegraph Ltd., and others  1 All E.R. 705 and particularly to the observations of Pearson L J. at 709- 710. We are unable to accept this submission in the form in which it has been put to us. In the first place consolidation of suits is a measure adopted for the convenience of parties and for purposes of saving expense in litigations; and, in any event, the facts in Lewis’s Case are hardly applicable to the facts of this case. In Lewis v. Daily Telegraph Ltd., the plaintiffs A and B brought consolidated libel actions against two newspapers. Later, an order for a new trial was made in respect of both actions. There then emerged differences between A and B about the conduct of the two actions and A applied for the actions to be “deconsolidated”. The Court of Appeal in dismissing an appeal by A from the order of Roskill, J., refusing the application, held that this was not a proper case for “deconsolidation” since there was no conflict of interest between A and B and since also the issues were substantially the same. There appears, however, a passage in the Judgement of Pearson L. J. which suggests that the proper mode of reversing an order of consolidation is by an appeal against such order but it was also conceded in that passage that If a new situation arises in which convenience or justice requires some “modification or adaptation of the original order to fit the new situation”, a variation of the original order can be made following the provisions of Rules of the Supreme Court (England) e.g., Order 15 r 5 which provides for the making of appropriate orders, in such circumstances, to avoid embarrassment or “delay.” In the case of Martin v. Martin & Co.  1 Q.B. 429 at 432 there appears an observation of Chilly L. J. which also appears pertinent to the submission of learned Counsel for the appellant.
“No doubt it was formerly the rule that a plaintiff could not apply for consolidation where the word is used … to denote the combination of actions so that thereafter they proceed as one action. It cannot be suggested that when the trial of the actions consolidated in this manner comes on, the Judge has no power to sever the case before him into its component parts for all purposes of justice whether in the matter of costs or otherwise.”
In Mbaegnusi Obiekweffe & Ors. v. Ikwuobodo Unumma & another (1957) 2 F.S.C. 70 at p. 71 Foster Sutton, F.C.J., held that an order for consolidation of actions is one of convenience, and either the Judge who made the order or any other Judge before whom the case comes for trial has a discretion to vary it.
As already observed, the parties in this appeal took very active part throughout the trial without raising any objection, and it is our view that it cannot in those circumstances be seriously argued that any miscarriage of justice occurred, or that the procedure adopted by the learned Judge was in error of law. For the reasons set out above, that ground of appeal fails.
Learned counsel for appellants argued next, that an award of damages for trespass against members of a community who were sued in a representative capacity is erroneous in law, and that (b) in so far as the award in this case now under consideration affects the second set of appellants i.e., the tenants of Nnadis, that order was not supported by the evidence before the learned trial Judge. Again, we were unable to uphold the general contention that damages for trespass cannot properly be awarded against named defendants who were sued as representatives of their community; for If the evidence given at the hearing of a civil claim for trespass clearly establishes that any set of defendants named on the writ were together with other members of their community responsible for the trespass, an award for damages can properly be made against these defendants in the representative capacity in which they were sued- see Adurumokumor of Bakokodia v. Sillo of Ornadino 14 W.A.C.A. 123 at 125. In our view, there was considerable substance in the second part of the above submission. The claim for trespass relates to cutting of palm-wine and Otosi trees in a particular parcel of land-Ugwojl-within the area verged pink in Exhibit 2. There was not a shred of evidence from the respondents in support of this part of their claim either in respect of the first set of appellants (representatives of the Nnadis) or the second set of appellants (tenants of Nnadis); and Counsel for the respondents, rightly in our view, conceded that part of the submission of counsel for the appellants. In our view the award in respect of damages for trespass was clearly not supported by the evidence before the learned trial Judge. That ground of appeal succeeds.
On the award in respect of declaration of title, learned Counsel for appellants argued that the claim before the Court was inconsistent with plan (Exhibit 2) put in evidence by respondents in support of it. In both their writ and the relief paragraph of their statement of claim, there appear six pieces of land- Ugwoli, Ochojelu, Amaluche, Ngasi, Agunego, and Owele-Oduga- for which the respondents asked for a declaration of title. The area verged pink In Exhibit 2 contains the names of other pieces of land in addition to all the pieces of land set out in the writ, with the exception of Agunego. Amongst these other pieces of land were Owelle Mkpalokun Ana Owu and Odo Otazi lands which, on the submission of Counsel for appellants, have not been specifically claimed by respondents. This submission overlooks paragraphs (3) and (15) of the statement of defence. Paragraph (3) of the statement of defence ‘denies’ paragraph 7 of the Statement of Claim which described the area verged pink in Exhibit 2 (which includes the names of all the pieces of land mentioned above) as the land in dispute claimed by the respondents; and paragraph 15 states: “save as is herein before expressly admitted the said defendants deny each and every material allegation of fact contained in the statement of claim as if the same were set out herein and traversed seriatim”. Now, it seems clear that the cumulative effect of these two paragraphs is that the appellants joined issue with respondents in respect of “all” the lands described in the pink area of Exhibit 2. By common practice a general traverse in the form of paragraph 15 of the statement of defence has always been accepted and when employed it puts the opponent to proof of the facts therein stated or alleged. In this connection it seems appropriate to refer to the observations of Denning L. J. in Warner v. Sampson [195912 W.LR. 109 at 114-115:
“Sometimes the pleader ‘denies’, sometimes he ‘does not admit’ each and every allegation; but whatever phrase is used it all comes back to the same thing. The allegation is to be regarded ‘as if it were specifically set out and traversed seriatim.’ In short it is a traverse, no more and no less… The effect of this general denial in an action to recover land Is therefore the same as the classic plea: ‘the defendant is in possession’. This plea of possession was good against everyone except against a plaintiff who could show a better title. “It nut the plaintiff to proof of his title as much as if the defendant had expressly denied or had expressly stated that he did not admit the whole and every one of the allegations contained in the plaintiff’s pleading.” (underline, by the Court).
It seems therefore beyond argument that by their statement of defence, the general trend of their evidence and conduct of their case in the Court below, appellants put in issue the claim of the respondents to the “entire” area verged pink in Exhibit 2. It is true that the single piece of land called Agunego contained in the claim in the writ of summons did not appear within the pink area of-Exhibit 2, but the judgement of the learned trial Judge clearly awarded title to the area verged pink on Exhibit 2. In our view that ground of appeal fails.
The only remaining ground of appeal relates to the order for injunction. In their statement of claim respondent admitted that the appellants entered the land in dispute in 1940 but maintained that appellants did so following their various acts of trespass. In anticipation of a plea of acquiescence on the part of the appellants, respondents averred in their statement of claim that many years ago their ancestors together with those of the appellants were pledged to peaceful coexistence under the sanctity of a special oath and further agreed that neither should take the other to Court over any disagreement. Respondents further pleaded that in consequence of the oath ceremony they were unable to take the appellants to court for these various acts of trespass until after 1948 when at a mass meeting of the Amumus the oath ceremony was annulled. In one of the paragraphs of their statement of claim, they further pleaded that only one member of the Nnadi community one Eta-Ali-was permitted to erect a “building” within the land in dispute. No evidence was given by any of the respondents’ witnesses of either the oath ceremony or its annulment; on the contrary the second respondent testified that the reason for delay in instituting proceedings against the appellants was due to “internal disagreement” amongst members of respondents’ family. The learned Judge accepted this evidence as to the cause for delay in instituting proceedings. Learned Counsel for appellants, rightly in our view, submitted that this evidence was inconsistent with the statement of claim and that it occasioned misdirection on the part of the learned Judge. This is particularly so as the second respondent admitted that the first and second appellant and also one Nwoye Ofokansi, a member of the Nnadi community, have several houses on the North Western portion of the land in dispute, known as Okwuanne land. No satisfactory explanation was given for the presence of these three members of the Nnadi community on the land Okwuanne. This evidence is relevant on the plea of acquiescence by the appellants, but only in so far as the order of injunction affects the right of some members of the Nnadi community to continue in occupation of their buildings on the land in dispute, since we are satisfied that there was abundant evidence before the learned trial Judge to justify his finding in favour of the respondents, in respect of the award of title and injunction generally. The appellants, however, failed to establish acquiescence on the part of the respondents in respect of the Nnadis as a community apart from the fact that three Nnadi people were proved to be in occupation of houses on the land In dispute in their personal capacity; and the onus was on the Nnadis to establish their plea of acquiescence.
In the final analysis the appeal will be allowed in respect of the award of damages for trespass, and in regard to the award of declaration of title and injunction, it will be dismissed; but we think, however, that the order of injunction should be varied to exclude three members of the Nnadi-Nsugbe community-Edward Attah, Chigbata Anoh, Nwoye Ofokansl and members of their respective households now resident in Okwuanne land, from its operation in so far as their right of continued occupation of their houses on the land verged pink on Exhibit 2 is affected by the said order of injunction. For clearness sake, it is proposed to replace the Judgement of the court below in suit No. 0/51/52, by the following:
Judgement is given for the plaintiffs (people of Amumu-Nsugbe) as follows:
(1) For a declaration of title to the land verged pink on plan No. EC/109/52 made on 31/12/52, marked Exhibit 2 in these proceedings.
(2) (a) Subject to paragraph 2(b), the defendants and/their people of Nnadi-Nsugbe, their servants and or agents are hereby restrained from entering the land verged pink on plan No. EC/109/52 (Exhibit 2), without the permission of the plaintiffs.
(b) Each of the following members of the Nnadi-Nsugbe community-Edward Attah (1st defendant), Chigbata Anoh (2nd defendant), Nwoye Ofokansi and members of their respective house- holds-may continue in occupation of their respective houses and other buildings now on the land verged pink on plan No. EC/109/52 (Exhibit 2) but may not erect any other buildings without the permission of the plaintiffs.
(3) The plaintiffs are non-suited In respect of their claim for damages for trespass.
As the appellants have succeeded in part, the costs payable to respondents are fixed at 100 guineas whereof £54-16s-0d represents respondents’ out-of pocket expenses.
Appeal allowed as to award of damages; dismissed as to declaration of title and injunction.