Johannes Englang V. J. Mope Palmer (1955)

Practice and Procedure—Suit for trespass—Plaintiff averring ownership—Plaintiff not averring possession—Possession the issue—Amendment in appeal to aver possession.
Appeals in Civil Cases—Amendment to settle controversy.

Facts

In the Court below the plaintiff sued for trespass, alleging that he was the owner of certain land and that the defendant trespassed on it; the defendant denied these allegations; the trial Judge found that the plaintiff had possession to support an action for trespass, and that the defendant had committed trespass, and awarded damages.

The defendant appealed on the ground that although the plaintiff had not averred possession, the Court below allowed him to prove possession and found possession in plaintiff’s favour. The Court of Appeal allowed the plaintiff to add the words ” and in possession ” after the word “owner ” in his statement of claim.

Held

(1) In a trespass action an averment of ownership is consistent with and amounts to an averment of possession, for ownership may be proved by proof of possession.

(2) The allegation, in such an action, that the plaintiff is owner puts possession and not ownership in issue, as possession is all that he need prove.

Per curiam: It was right, though perhaps not necessary, to amend the pleadings for the sake of using the evidence to settle the real controversy between the parties.

Appeal dismissed.