de Comarmond, Ag. C.J. This is an appeal from a decision of Dove-Edwin, J. given at Aba, in the Aba Judicial Division of the Supreme Court.
The plaintiff, now appellant, acting on behalf of the people of Abatu sued the defendants as representatives of the Osu Obodo people claiming a declaration of title to a piece of land called Njachi, damages for trespass and an injunction. The suit was transferred from the Native Court of Oru Aguta to the Supreme Court and was heard and determined at Aba by Dove-Edwin, J.
The suit was dismissed with costs.
On appeal, Mr Okafor appeared for the appellant and Mr lbekwe for the respondents. Mr Okafor's chief argument was that the learned trial Judge had misdirected himself by taking the view that the plaintiff's evidence was “in complete contrast to the statement of claim.”
The evidence given by the plaintiff was, apparently at least, in direct conflict with the averments in the statement of claim. Thus it was averred in the statement of claim that the defendants' people had been allowed by the plaintiff's people to settle on a portion of Njachi land, and that in spite of various upsets, the defendants continued to farm the portion thus granted and pay tribute to the plaintiff's people until 1948 when the defendants ceased paying tribute and trespassed on the remaining part of Njachi land which had not been granted to them under the usual terms of customary tenure.
At the trial, the representative of the plaintiffs stated that no part of Njachi land had been granted to the defendant people. This evidence, if divorced from the rest of the plaintiff's evidence, constitutes a startling departure from the statement of claim. However, the plaintiff's evidence taken as a whole shows that the plaintiff's story is so complicated that the drafting of the statement of claim may well have been unsatisfactory and misleading. The confusion probably arose out of the fact that the plaintiff's story is, to put it briefly, that the original Ossu people who were allowed by plaintiff's ancestors to settle on part of the Njachi land did, after various vicissitudes, become split into the Ossu Obodo people and the Ossu Obahu people. The former were not allowed to occupy any part of Njachi land after 1914, whereas the Ossu Obahu were retained as customary tenants and are still on the land.
It is the Ossu Obodo people who are the defendants-respondents in the present appeal. The story told by the plaintiff is further complicated by the fact that, although the Ossu Obodo people were not directly customary tenants of the plaintiff people, yet, they did gain admittance to part of the 1and in dispute through the Ossu Obahu people to whom they paid tribute, which tribute was passed on to the plaintiff people by the Ossu Obahu people.
It is not surprising that the learned trial Judge was startled by the apparent conflict between the statement of claim and the evidence given by plaintiff. The first four lines of the last paragraph of the learned Judge's judgment reveal clearly the impression made on his mind. He said "I am now to decide whether on the plaintiff's evidence and that of his witnesses particularly with reference to the statement of claim, this Court could grant him a declaration of title.”
After hearing learned counsel this Court took the view that there was a possibility that the statement of claim failed to explain in sufficient detail the whole sequence of events set out 'above. The solicitor who drafted the statement of claim may have been imperfectly instructed, or he may have failed to appreciate fully the Importance of setting out clearly that, prior to 1914, the Ossu Obodos did hold part of the land in dispute as customary tenants but that, after 1914, the plaintiff people had direct dealings with the Ossu Obahu people only. This Court therefore decides that, in order to avoid a possible injustice, it is advisable to non-suit the plaintiff instead of confirming the order of dismissal. This view is strengthened by the fact that the defendants did not contend that they were entitled to the whole of the land in dispute.
The Court has given consideration to Mr Ibekwe's submission that the case of Kodilinye and Mbanefo Odu 2 W.A.C.A. 336 should be followed. It was held in that case that Order 39 Rule 1 of the Supreme Court (Civil Procedure) Rules, which empowers a Court to non-suit a plaintiff, should not be applied where a plaintiff fails to satisfy the Court that he is entitled to a declaration of title.
We do not wish to diminish in any way the authority of the said decision which has been followed on numerous occasions. We consider, however, that the present case can be distinguished on the ground that the plaintiff's evidence was disbelieved mainly on the ground that it conflicted with the statement of claim. If (as we think) it is not unlikely that the statement of claim failed to set out the case in sufficient detail it is more consonant with the ends of Justice not to debar the plaintiff from putting up his claim again, the more so as the I defendants did not dispute the plaintiff's claim in respect of a small portion of the Njachi land. It is interesting to note that in the case of Mustapha E. B. Dawodu and Sabina Gomez and another, W.A.C.A. 2579 (6th May, 1947) which was a claim for declaration of title, this Court stated that had the Court below entered a non-suit, the Court would have been prepared to distinguish that case from the case of Kodilinye and Mbanefo Odu.
The appeal is allowed. The decision of the Court below is set aside and it is directed that an order of non-suit be entered with costs against the plaintiff assessed at fifty guineas.
No order is made as to costs of this appeal. Foster Sutton, P. I concur. Coussey, J. A. I concur.
Appeal allowed. Non-suit entered.