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

LawGlobal-Hub Lead Judgment Report

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.”