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SIR ADETOKUNBO ADEMOLA, C.J.F. (Presided)
EDGAR IGNATIUS GODFREY UNSWORTH, F.J.
SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)
LAWANI OYEWOLE (for himself and other members of Onirokose family)
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
TORT – TRESPASS – DAMAGES:
PRACTICE AND PROCEDURE – APPEAL: Damages – Appellant not contesting amount of damages at the lower court – Effect on appeal.
PRACTICE AND PROCEDURE – DAMAGES: Where defendant does not give evidence as to value – Duty of Judge.
PRACTICE AND PROCEDURE – Impeaching the veracity of a witness – How done.
PRACTICE AND PROCEDURE – Parties – Joinder of – Effect of Plaintiff not serving amended statement of claim on the newly joined defendant.
A. Fani Kayode Q.C. (A. Duduyemi with him) -for the Appellants.
Chief F.R.A. Williams Q.C. (A.M.A.Akinloye with him) – for the Respondent.
BAIRAMIAN, F.J. (Delivering the Judgment of the Court):
In this appeal the defendants complain against the judgment given on the 17th December, 1959, in the High Court, at Ibadan, which granted the plaintiff £1,000 damages for trespass and an injunction.
The plaintiff began by suing the Ibadan District Council; he then asked the Court to join Lawani Amao as a defendant, and it was done; he next asked for leave to sue in a representative capacity, and was authorised so to do; then again, when he saw that the co-defendant Amao wrote in his Defence that the land belonged to one Lawani Babajide, he asked the Court to join Babajide as a defendant, and he was joined. When the case came up for hearing, the plaintiff asked for leave to withdraw the action against the Ibadan District Council, and the Council was struck out of the action; so, in the judgment of the trial court, the two remaining defendants, originally No. 2 and No. 3, are referred to as No. 1 and No. 2.
The plaintiff’s complaint was that the trees on a piece of land belonging to the Oniroko and Motunde families were cut, and the place was turned into a market. It has been objected in this appeal, that the order made on the 17th April, 1959, authorising the plaintiff to sue in a representative capacity, is that he do sue for himself and other members of the Onirokose family. The order was wrongly drawn up: the notice of motion was for an order to sue in a representative capacity; and one can see, from the affidavit of the plaintiff in support of his application, that he wished to sue on behalf of both families; the mistake cannot affect the proceedings. The learned Judge in his judgment says that “by plaintiff’s family” he refers to the Oniroko and Motunde families. I do not think it matters whether the two families own the land in question in common, or whether the Motunde family is the chief tenant of the Onirokos. The judgment is in favour of the two families as co-owners, and neither of them has complained in that regard. It is not a matter which concerns the defendants: so far as payment of the damages awarded is concerned, they pay the plaintiff, and it becomes his business to do with the money what is right; and the injunction is as useful to the Motunde family, whether as co-owner or as chief tenant, as it is to the Oniroko family, whether as co-owner or overlord.
A more serious objection to the judgment lies in the argument that:
(a) the Motunde community is not a party;
(b) no judgment can be given against the 3rd defendant himself because there is no pleading against him, and no amendment was sought.
This needs a review of the circumstances in which the 3rd defendant was brought in as a party.
Amao, the 2nd defendant, said in his Defence that Lawani Babajide acquired the land and gave it to the Motunde village community. The defence was delivered in May, 1959. When the case came up for hearing on the 21st September, 1959, plaintiff’s counsel referred to the defence and asked the Court to join the community as parties; and the Court adjourned the suit for the plaintiff to file a motion to join the newly disclosed parties. The motion was filed next day; it asked for “an Order that Lawani Babajide be joined as a defendant in the suit, and for such further order or other orders” as might be fit. The affidavit in support states in para. 4:
“That Lawani Babajide representatives of Motunde village community be joined as a defendant.”
On the 5th October, 1959, the Judge’s note is:
”Akinloye to move to join Lawani Babajide.”
There was no objection, and the note (in part) reads:
”Court: Order as prayed … The newly joined co-defendant is to be served with a copy of the pleadings and case to come up for mention on 26/11/59 …”
If it was the wish of the plaintiff to join Lawani Babajide as a defendant representing the Motunde village community, neither the notice of motion nor the oral application made that clear: in either case it seemed that the application was merely to join Lawani Babajide; and it must be taken that he was joined personally.
At the hearing on the 27th November, 1959, one and the same counsel appeared for defendants No. 2 and No. 3; and near the end of the cross-examination of the plaintiff, learned counsel stated that the 3rd defendant adopted the defence of the 2nd defendant. That defence was that Lawani Babajide had given the land in 1958 to the Motunde Village Community. There had been, in the order made on the 5th October, 1959, a direction that Babajide be served with a copy of the pleadings. The allegation in the Statement of Claim is, in para. 8 thereof:
“That in the month of November, 1958, the agents or servants of the 1st defendant (viz. the Ibadan District Council) and the 2nd defendant (viz. Amao) entered on the land in dispute (and) cut down the palm trees and kola nut trees without the consent or authority of the plaintiff.”
There is no allegation against the 3rd defendant, Lawani Babajide, having done anything either in his own right or on behalf of the Motunde village community. It seems to me that, by adopting the defence of Amao, all that Babajide was saying was this: the land was mine, and in 1958 I gave it to the Motunde village community, who in 1958 obtained the approval of the Ibadan District Council to establish a market on the land, and the market was established sometime in November, 1958: Defence, paras. 4 to 8.
On the pleadings, the dispute was between the Oniroko and Motunde families as plaintiffs and Amao and Motunde village community, but the Motunde village community was not a party. The learned Judge states:
“No application has been brought by Lawani Babajide to defend this suit on behalf of the Motunde Community but in view of the fact that this capacity is common ground between the parties, I do of my own motion and in order that there might be a finality in this suit empower him so to defend.”
Learned counsel for the plaintiff/respondent in this appeal concedes that the judgment should have been against Babajide personally. But this means that he should pay £1,000, when there is no allegation against him in the Statement of Claim, with which he was served. The evidence of the plaintiff:
“As a result of the letter the Ibadan District Council called me. The 2nd defendant was present but not the third. I explained to the Council that I was not pleased with their suggestion of making a market on my father’s land. The Council did not heed my warning. I later saw several people clearing the land and when I protested the 2nd defendant threatened to cut off my head. The 2nd defendant was holding a matchet and the 3rd defendant and they were ordering the people to continue with their work.”
It seems to me that, if the plaintiff wished to make a claim against Babajide personally, he should have served him with an amended Statement of Claim, making a specific allegation against him; or he should have amended his statement of claim by leave at the hearing, but he did not do so. On the pleadings, Babajide was concerned only with Amao’s defence that the land had been acquired by Babajide, who gave it to the Motunde village community. I think that the judgment against Babajide, as representing the Motunde village community, must be set aside; and, as a judgment against him personally, it must be set aside in so far as it is an order that he should pay £1,000, but it can stand in-so-far as the injunction is concerned: for Babajide belongs to Motunde Village, and the defence he adopted is that the Village community was entitled to the land and set up the market.
As regards the defendant Amao, there is the evidence of the plaintiff which I have quoted; and his witness Gbadamosi Akano, Motunde’s son, testified that:
“I saw the 2nd defendant in November last year. He came with one man Toki. They told me they had cut down some trees and that they wanted to put up a market. I asked them who gave them permission. They said the Ibadan District Council. I asked them about the cocoa and kola trees and they said they were told to cut down everything. They said they came to beg me to say that I gave them permission to do what they did. I did not give them permission.”
Lawani Amao denied that; he also denied cutting any trees himself; but he made it clear that he was a leader in the business of establishing a market; he said:
“I am one of those who established the market on the site. I did not clear the land. The young members of the community did the clearing. I did not cut any trees on the land.”
The learned Judge states in his judgment:
“On the whole I found the plaintiff and his witness reliable and have no hesitation in accepting their version.”
Learned Counsel for the defendants in this appeal has referred to the plaintiff’s affidavit in support of his application to join Amao as a defendant, where it says:
“That it has come to my knowledge that Lawani Amao has also trespassed on my land at the same time when the agents of the Ibadan District Council committed the trespass I complained of”.
Learned Counsel has argued that the plaintiff should not have been believed when he said in his oral evidence:
“and when I protested the 2nd defendant threatened to cut off my head.”
That was at the time when the plaintiff saw several persons clearing the land. It is not possible to base any argument on that passage in the affidavit: it was not put in evidence at the trial. A trial Judge has to decide on the evidence given before him; and, if a party wishes to impeach the veracity of a witness, it is up to that party to refer to a previous statement which the witness had made, and give him an opportunity of admitting it and of explaining what he meant.
I think that, on the evidence given at the trial, the learned Judge was entitled to make the findings he made, and it is only by reason of the pleadings and of the order of joinder of the 3rd defendant, that the judgment has to be varied. The Court cannot entertain argument on the amount of the damages awarded. It is true that the learned Judge thought the prices of the trees were inflated; but, as he rightly observes, there was no evidence on value from the defendant’s side; so, he had to go by the only evidence there was before him. The judgment of the Court below will be replaced by a judgment in these terms:
“The plaintiff Chief Lawani Oyewole, the Oniroko of Iroko, as representative of the Oniroko and Motunde Families, is granted £1,000 (one thousand) as special damages and £2 (two) as general damages for trespass against the defendant Lawani Amao of Motunde Village, and an injunction to restrain the said defendant Lawani Amao and the defendant Lawani Babajide of Motunde Village their agents and servants from entering the land edged red in the plan exhibit “A”, with costs in the Court below of £141.14s.0d. and of twelve guineas as costs of appeal against both the said defendants.”