KINGDON C.J., NIGERIA PERIDES, C., J GOLD COAST AND GRAHAM PAUL C,.J, SIERRA LEONE. This action started in a Native Court but it was transferred by the District Officer to the High Court for the reason that “the “case concerns Bonny Customs of which the Ugwunagbo Native “Court has no knowledge.” When the case came into the High Court the claim was amended to read as follows:- “The plaintiff claims the sum of £120 being damages in that the “defendants wrongfully broke and entered the lad of the plaintiff “known as NSULU at Abayi, Aba District being in the possession of the “plaintiff and there tapped the Rubber Trees. removed the plaintiff'
*Page 149 “Canoes, zinc sheetings and Tapping instruments without the consent “and /or concurrence of the said plaintiff. “2. An injunction to restrain the defendants their Agents or “Servants for any further interference with the plaintiffs rights and “title of the said land.”
Pleading’s were ordered and Statement of Claim and Statement of Defence, were filed. On the pleadings it is clear that the plaintiff was claiming as Head of the Banigo House of Bonny which was apparently founded by Squiss Banigo who died in 1924, and is called in the pleading “the Big House.” One Walter Banigo succeeded Squiss Banigo us the Head of “the Big House” and he died in 1930, The first defendant-appellant is a “ member” of the late Walter Banigo, the second is Walter’s brother and the third is Walter’s son.
As often happens in these land cases the pleadings were in- accurate in naming the land to which the claim related but eventually after some discussion certain issues were fixed and by consent an order of reference was made referring the agreed issues to an Administrative Officer as referee. The Court finally ordered that the Referee should enquire and report on the following issues : -
“(a) Who is entitled to the use and occupation only and not ownership of Chief Squiss Banigo’s land called ‘Nsulu’ marked on the plan attached hereto.
“(b) If the referee is satisfied that the plaintiff is entitled to the use and occupation of the said land, Whether any acts of trespass have been committed by the defendants on this land.
“(c) The Referee shall take any necessary evidence on oath and give proper notice to parties concerned.”
A most exhaustive enquiry was made by the Referee and from the proceedings before him certain things appear clearly:- (1) That the parties knew quite well, and sufficiently defined, the land about which they were in dispute. (2) That the acts of the defendants about which the plaintiff complained were not denied by the defendants. These act could not indeed be denied in the proceedings before the Referee for they were admitted by the defendants in their Statement of Defence. (3) That the main issue between the parties was whether the land in question belonged to “ the Big House” of which the plaintiff is Head or to the family of the late Walter Banigo to whom the defendants maintain the land belong’s, The plaintiff claimed that he was entitled to the use and occupation as the land belonged to the Big House. The defendants contended that they were entitled to exclusive use and occupation because the land belonged to the late Walter Banigo
The Referee’s Report was received in evidence by the Court below and his findings of fact were as follows:-
“(a) Walter Banigo was appointed Head of the family Squiss Banigo in 1903.
(b) That the land now in dispute between the parties was acquired by Walter Banigo after the date.
(c) That Walter Banigo acquired this land for Squiss Banigo and that therefore
(1) The Banigo House is entitled to the use and occupation of such areas of land with the area marked “Chief Squiss Banigo's land called Nsulu marked on the plan attached to the Order of Reference” as are in dispute between plaintiff and defendants.
(2) The first and third defendants have been trespassing on those areas of land since the death of Walter Banigo in 1924.
(d) That the signatures of all the parties to Exhibit G are genuine and were not obtained under duress”
(The date “ 1924” in ( c) (2) is an obvious mistake for “1930”).
Counsel were heard in the Court below on the Referee’s Report and further evidence called in the Court below and it must be noted that the appellants counsel raised in the Court below only three points:-
(1)The plaintiff could not sue without taking out Letters of Administration. This point was one of the Grounds of Appeal but was quite rightly abandoned by appellants counsel in the Court as of no substance.
(2) The land was miscalled in the Statement of Claim. There is nothing in this point as when the parties eventually got before the Referee they had no doubt about the land to which the dispute referred
(3) The plaintiff’s title had been challenged and therefore he must prove title before his action could succeed. The Referee’s findings settled that question very definitely and the appellant’s counsel in this Court has expressly abandoned the ground of appeal that “the verdict is against the weight of evidence.”
It was never suggested by counsel for the appellants in his argument in the Court below that there was no evidence of possession by the plaintiff or of the specific acts of trespass complained of, nor was it suggested, by pleading or argument, that by native law and custom the defendants as members of “ the Big House” had an inherent right to use and occupy the land along with the other members, but in this Court curiously enough, these are the main grounds of appeal. As regards the acts of trespass no evidence was necessary as they were admitted by the defendants in their Statement of Defence. As regards the plaintiff’s possession sufficient to base an action for trespass the matter is quite clear on the evidence. The plaintiff brings this action in a representative capacity on behalf of the Big House,. i:.e.,. the Squiss Banigo House. Squiss Banigo sent Walter and others of the Big House people to take possession and “open” this land on behalf of “the Big House.” On Walter’s death in 1930 some of these representatives and the defendants tried to oust “the Big House” and take and use the land as if it was the private property of Walter Banigo and his people and descendants. In the course of this scheme the defendants committed the acts of trespass complained of but they were only a few of the people or descendants of people whom Squiss Banigo had sent to take and keep possession of this land on behalf of “the Big House.” The late Walter Banigo never at any time put forward any claim or suggestion that the land in question belonged to him. As long as he lived the ownership and the possession of the land by the Big House were clear and uncontested. The evidence shows moreover that there are still on the land some of the people whom Squiss Banigu originally sent to take and keep possession of the land on behalf of “the Big House.” The possession by the Big House has been uninterrupted. When the defendants on the death of Walter in 1930 started using and occupying the land not on behalf of the Big House but on their own behalf or on behalf of the late Walter’s family only, they were clearly committing trespass and the Court below has rightly so found. £120 was claimed as damages and the Court below awarded only £15. It is not quite clear how this very small figure was arrived at but neither party in this Court has quarrelled with the amount of damages awarded.
In regard to the submission put forward for the first time in this Court that defendants could nut be trespassers because by native custom they had the right, as members of the Big House to use and occupy the land along with other members,. it is sufficient to say that no evidence was led as to the native law and custom applicable, and the question of what it may be in any particular area is usually a matter of difficulty and controversy.
We could not possibly find in the appellants favour on such a point not raised in the Court. below and not supported by any evidence.
All the grounds of appeal fail.
We notice that the Court below did not deal with the second part of the claim before it) viz: the claim for an injunction.
We have not been asked to amend the judgment by granting the injunction prayed,. so we refrain from doing so. The appeal is dismissed with costs assessed at thirty-five guineas.