CHFE EFIONG ENEBIET EFIOMDUKE AND 2 ORS
V.
ETUBOM GEORGE DUKE HENSHW & ANOR

JELR 80598 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
 · 
Other Citations
1940 6 WACA 200
CORAM
BLACKALL, P., VERITY, C.J. (NIGERIA), LEWEY, J.A.
Core Terms Beta
plaintiffs
court
costs
defendant
judgment
order
pleadings
representative capacity
suit
authority
claim
dismissal of the claim
evidence
first onus
future date
parties
yellow duke house
amount
calabar-aba
calabar native court
case
concluding part
country
duty of the court
gold coast
high court
judicial division
learned trial judge
members of yellow duke house
nigeria
outset of the hearing of the case
present case
question
share of rents of lowood beach
sierra leone
state of the plaintiffs
supreme court judgment of 19th april

 KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.,J., SIERRA LEONE. In this case, which was commenced in the Calabar Native Court and transferred to the High Court and heard in the Calabar-Aba Judicial Division, the plaintiffs, suing “for themselves and members of Yellow Duke House” originally claimed from the Defendant “£96 being their share of rents of Lowood Beach (according to Supreme Court Judgment of 19th April, 1920) received by Defendant from 1917 to about 1925.” This claim was amended to read “£120 from 1917 to 1927.”

There were no pleadings, but at the hearing the Defendant by his Counsel pleaded simply” Not liable.” After hearing evidence the learned Trial Judge gave a judgment the concluding part of which is as follows :-- “The plaintiffs have established their claim to the amount of £72-£12 rent per annum 1922-1927.

“The state of the plaintiffs’ house must be seriously considered before entering judgment in their favour. It is split into at least two factions and is in disorder. It is at present not recognized by the Native Authority. its representatives are suspended. I am unable to determine, after calling evidence, who are its responsible representatives.-

“I declare that the Defendant is liable in the sum of £72: order that execution do not issue until. Yellow Duke House is set in order, and the Court is satisfied as to who is entitled to receive moneys on their behalf.

“Judgment for Plaintiffs accordingly. “Costs to Plaintiffs 15 guineas suspended on same terms as above.” This amounts to a finding of fact that the Plaintiffs had not shown their authority to sue in the representative capacity in which they did sue. In other words they had failed to discharge the first onus upon Plaintiffs who purport to sue in a representative capacity. It is clear that they should have been non-suited and that the judgment, which is really nothing more than a judgment in favour of some person or persons unknown, cannot be allowed to stand.

There should be a non-suit rather than a dismissal of the claim because it is conceivable that the Plaintiffs may at some future date be in a position to bring an action in identical terms.

The question then arises as to costs.

Now it is well established that in this country, where there are no pleadings ordered, it is the duty of the Court at the outset of the hearing of the case to ascertain the real points in issue between the parties and it is the duty of both parties to state clearly the points upon which they rely. Both the Court and Defendant failed in this duty in the present case. The plea of “Not liable” is too vague and should not be either put forward or accepted. The Defendant never raised, either by his pleading or by his cross-examination of the Plaintiffs, the question of their authority to represent the Yellow Duke House. For these reasons we think that he is not entitled to costs in the Court below. He must however have his costs in this Court.

The appeal is allowed, the judgment of the Court below, including the Order as to costs, is set aside, and it is ordered that in the Court below the Plaintiffs shall be non-suited and the parties shall bear their own costs.

The Appellant is awarded costs in this Court assessed at 40 guineas to be payable by the Plaintiffs personally.