Chief Okumagba Eboh & Six Ors V Oghotemi Akpotu (1968)

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COKER, J.S.C.

On the 1st August, 1964, the Chief Magistrate, Warri, gave judgment against the appellants in favour of the respondent for the sum of £100 general damages for trespass to rubber trees belonging to the respondent with costs. The appellants appealed against the decision of the Chief Magistrate to the High Court, Warri, but their appeal was dismissed by Prest. Ag. J., hence the present appeal.

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The appellants were the defendants before the Chief Magistrate and the plain-tiff’s (i.e. the respondent’s) writ was endorsed in part as follows:-

‘The plaintiff’s claim against the defendant is for the sum of £250 (two hundred and fifty pounds) being special and general damages suffered by the plaintiff for trespass committed by the defendants on the plaintiff’s rubber trees at Erejuwa Road, Warri in the Warri Magisterial District.”

After three appearances before the Chief Magistrate at which the hearing was repeatedly adjourned, the hearing started on the 19th May, 1964, and both sides called evidence. The plaintiff’s case was that he is the owner of some 24 rubber trees which he had planted on land in Warri “during the first German war, 1914-16” and that on the 21st July 1962, the defendants unlawfully felled the rubber trees. He claimed special damages of £120 being the value of the rubber trees at £5 each as well as general damages in the sum of £130. The case of the defendants was that the plaintiff had already been paid compensation of £20 for all his rubber trees including the 24 which he was complaining about. They also stated that the plaintiff had planted these rubber trees on a portion of family land. The learned Chief Magistrate in giving judgment for the plaintiff found that the plaintiff was in possession of the rubber trees and that the defendants did not sustain their defence. He took the view that the claim for special damages was not satisfactorily proved by the plaintiff but as stated before awarded him £100 general damages for trespass. On the merits of the cases of both sides the magistrate observed in his judgment as follows:-

“On the facts the defendants said the 24 trees cut in 1962 were part of those for which the plaintiff had been paid compensation. The plaintiff says they are not. I am satisfied that the defendants are lying. The plaintiff’s evidence and those of his witnesses satisfy me that in 1956 the plaintiff took family members to his plantation at the instance of Chief Okumagba, deceased and demarcated a portion of the plantation to his left as he stood facing the plantation from the road and a pillar was fixed to mark that boundary. Rubber trees to the left of the pillar had been cut down completely in 1956. Those were the trees for which the plaintiff was paid compensation. In 1962 the family wanted to carry out more development and wanted more land. Rubber trees attach to a land in the same way as a house does.

With the knowledge and implied consent of defendants the plaintiff had got that plantation on the land and that possession has been uninterrupted for over 20 years. The family had to come to some agreement with the plaintiff. They did not as they did in 1956.

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They just got into the land in the absence of the plaintiff and felled 24 of his rubber trees. That was what happened. The evidence of the only independent witness in this case a policeman supplies the key to the truth of the matter.”

A number of grounds of appeal were filed and argued on appeal in the High Court. Amongst these were complaints that the Chief Magistrate had no jurisdiction to try the case inasmuch as an issue of title to land had been raised and that the trial was a nullity inasmuch as the learned chief Magistrate failed to comply with the mandatory provisions of order 9, rule 4 (1) of the Magistrates’ Courts (Civil Procedure) Rules, 1958. Prest, Ag. J., expressed the view that no issue of title had been raised bona fide in this case and that therefore the jurisdiction of the Magistrate was not ousted. With respect to the complaint about noncompliance with order 9, rule 4(t) of the Magistrates’ Courts (Civil Procedure) Rules, the judge ex-pressed agreement with the view that the failure to comply with that rule renders the proceedings a nullity. He then ended his judgment as follows –

“I concur with the view that failure to comply with order 9, rule 4(1) of the Magistrates’ Courts (Civil Procedure) Rules by the learned magistrate renders the proceedings a nullity and the appeal on this ground therefore succeeds.

The appeal is allowed on this ground alone, and the judgment of the Chief Magistrate is hereby set aside.

Following however the precedent laid down in the case of David Nwaokoro v. Sapele Urban District Council cited supra, I find on the merits of this case that the plaintiff/respondent has proved his case against the defendants/appellants for trespass, and he is entitled to general damages which I assess at £100 with 15 guineas costs.”

One of the points taken on appeal before us is that the magistrate should have declined jurisdiction seeing that an issue of title to land was raised in the case. We have already set out the case of the parties. That was the basis on which the whole trial was conducted and it is useful to point out that as put the case of the defendants necessarily involves an acceptance that the plaintiff was the owner and person in control of the rubber trees. Title to the land on which the rubber trees were planted was not in dispute and that issue must be considered irrelevant to the case before the learned magistrate. An issue of title which will oust the jurisdiction of a court must be raised bona fide. See the judgment of this court in Bisiriyu Ajose v. H. A. Agusto and Ors F.S.C. 565/65, decided on the 11th January, 1968).

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Even if it can be said that the defendants at the trial raised an issue as to title it is easy to see that they did not raise it bona fide.

It was also contended before us that as the judge had concluded that non com-pliance with the provisions of order 9, rule 4(1) of the Magistrate’s Courts (Civil Procedure) Rules rendered the entire proceedings a nullity, he should not have given judgment for the plaintiff. If the judge was right in concluding that the proceedings were a nullity, the argument would have been unanswerable; but with respect the judge was in error in taking the view that the proceedings were a nullity. Indeed they are not a nullity. A reference was made to a decision of the Supreme Court in Nwaokoro v. Sapele Urban District Council F.S.C. 280/63 decided on the 25th June, 1965). We wish to point out that although a similar point was raised as a ground of appeal in that case the point was not argued before, let alone adjudicated upon by the Supreme Court. Counsel on both sides in that case agreed to argue the appeal on the merits and so it is fair to point out that the Supreme Court did not in that case decide this point. Now order 9, rule 4(1) reads as follows:-

“If on the day of hearing both parties appear the plaint shall be read to the defendant, and the magistrate shall require him to make his answer or defence thereto, and, on such defence or answer being made the magistrate shall immediately record the same and shall except where the court considers it necessary to order otherwise, proceed in summary way to hear and determine the cause, without further pleading or formal joinder of issue.”

It is not in dispute that the rule spells out the procedure to be followed by a magistrate at the hearing of a plaint. The magistrate is expected to comply with the procedure described in that rule. It is nowhere stated however that if the magistrate did not comply with the provisions of the rule the whole proceedings would be void. If, as indeed it is the case here, the magistrate heard the whole case and gave judgment without any reference to this rule it cannot be said that anything more than an irregularity in the proceedings before him had occurred. It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it was much too late for the other party to complain about such irregularity. Besides section 100 of the Magistrates’ Courts Law of Western Nigeria did not appear to have occurred to the judge or brought to his notice. That section provides as follows:-

“100. On any appeal from a decision of a magistrate’s court no objection shall be taken or allowed to any proceeding in such court for any defect or error which might have been amended by such court, or to any complaint, summons warrant, or other process to or of such court for any alleged defect therein in substance or in form, or for any variance between any complaint or summons and the evidence adduced in support thereof in such court:

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Provided, however, that if any error, defect, or variance mentioned in this section appears to the appeal court at the hearing of any appeal to be such that the appellant has been thereby deceived or misled, it shall be lawful for the appeal court either to refer the case back to the magistrate with directions to rehear and determine the same or to reverse the decision appealed from, or to make such other order for disposing of the case as justice may require.”

The parties were represented before the learned Chief Magistrate by counsel and counsel for the defendants raised no objection at any time to the procedure at the hearing. Before us learned counsel for the appellants conceded that his clients were neither deceived nor misled by the failure to comply with order 9, rule 4(1). For our part we are satisfied that this irregularity falls within the saving pro-visions of section 100 of the Magistrates’ Courts Law and it follows in consequence that the judge on appeal was wrong in deciding that the proceedings are a nullity. It is not arguable that If the learned trial judge had correctly directed himself on the effect of the non-compliance with order 9, rule (1) of the Magistrates’ Courts (Civil Procedure) Rules he would have come to the same conclusion to which he had eventually come. This ground of appeal therefore fails.

Yet another ground of appeal argued before us is that the general damages awarded are excessive. Counsel for the appellants based his argument on the ratio of the amount awarded i.e. £100, to the amount actually claimed by the plain-tiff, i.e. £130, and referred us to the cases of Rewane v. Okotie Eboh (1960) 5 F.S.C. 200 and Zik’s Press Ltd. v. Alvan Ikoku (1951) 13 W.A.C.A. 188. The principles on which an appellate court approaches the question of award of damages by the trial court are fully discussed in the case referred to by counsel and do not include an approach in the way counsel for the appellants submitted should be made. No argument has been advanced by him to convince us that the magistrate had followed a wrong principle of assessment or that the damages awarded are manifestly too high. We would therefore not interfere with the award. This ground of appeal must also fail.

Finally, it was sought by counsel for the appellants to argue that the judgment is against the weight of evidence. We are satisfied that the findings of the learned Chief Magistrate are abundantly supported by the evidence before him and that on a proper appraisal of the evidence which he accepted his decision is clearly supported.

In the event the appeal fails on all grounds and it is dismissed with 32 guineas costs to the respondent.

Other Citation: (1968) LCN/1591(SC)