Edward Attah & Ors V Obi Chukwurah Nnacho & Ors (1964)

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IDIGBE,J.S.C. 

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 palm wine 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 [1964] 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. [1897] 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-Ugwoji-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 f

Other Citation: (1964) LCN/1118(SC)