OKOKON INUA (APPELLANT)

                                                      v.

                              EKE EFIONG NTA (RESPONDENT)

        AND BY ORDER OF SUBSTITUTION: OKOKON INUA (APPELLANT)

                                                       v.

                                BASSEY ASUQUO (RESPONDENT)

                                           (1961) All N.L.R. 600

Division: High Court (East)

Date of Judgment: 28th July, 1961

Case Number: Appeal No. C/12A/1961

Before: Idigbe, J.

Appeal from magistrate's court.

Eke Efiong Nta successfully brought an action for trespass to lands against the appellant at Ikot Omin Native Court.

The appellant appealed to the Calabar Native Court of Appeal. One of the grounds of appeal argued in the Calabar Native Court of Appeal was that the trial court had refused to hear witnesses offered by the defendant. The Calabar Native Court of Appeal reversed the Judgment but made no ruling on the ground of appeal based on the Native Court's refusal to hear Defence witnesses. Eke Efiong Nta then appealed to the magistrate's court against the reversal of the Judgment, but died before the appeal was heard. Bassey Asuquo, Heir-at-Law and successor in interest of the deceased, applied for an order that she be substituted for the deceased plaintiff to prosecute the appeal; which application was granted by the magistrate. The appeal to the magistrate was subsequently heard but the attention of the court was not drawn by Counsel on either side to that ground of appeal which alleged refusal on the part of the trial court to hear some of the defendant's witnesses. The Magistrate allowed the appeal on other grounds, and restored the Judgment and order of the trial court. The appellant appealed; contending, inter alia, that, the action being a personal action, the magistrate was wrong in allowing Bassey Asuquo to be substituted for Eke Efiong Nta. In the course of the argument the court's attention was drawn to the ground, made before the Native Court of Appeal but not before the High Court, that the Judgment should be reversed because the trial court refused to hear witnesses offered by the Defence.

HELD:

(1)     An action for trespass to lands is not such a strictly personal cause of action as to abate on the death of the deceased plaintiff, since a trespass to lands committed during the deceased's lifetime is an injury to the estate of the deceased, and the cause of action therefore survives his death.

(2)     An appellate court will, of its own motion, consider a substantial point of law arising on the record; even though it is not included as one of the grounds of appeal by the appellant; nor referred to by the appellant at the hearing before the lower court.

(3)     Refusal of a trial court to hear witnesses amounts to a substantial miscarriage of justice which will justify the setting aside of the Judgment of the trial court by the appellate court.

(4)     The Civil Procedure Act, 1883, did not apply to Scotland or Ireland, but, on 1st January 1900, it was an Act of general application in England, and, therefore, it applies in the Eastern Region of Nigeria.

Appeal Allowed.

Judgment of Magistrate set aside. New trial ordered.

Cases referred to:-

Kobina Ababio v. Priest-in-charge, Catholic Mission, Ampenyi, 2 W.A.C.A. 380.

Nana Ofori Atta II v. Nana Abu Bonsra Agyeiraru II, (1957) 3 All E.R. 559; (1958) A.C. 95.

Wytcherley v. Andrews, (1871) L.R. 2 P. and D. 327; 40 L.J.P. and M. 57; 25 L.T. 134; 35 J.P. 552; 19 W.R. 1015.

Hodge v. Marsh, (1936) 1 All E.R. 848; 80 Sol. Jo. 364.

Twycross v. Grant, (1878) 47 L.J.Q.B. 676; (1848) 4 C.P.D. 40.

Pulling v. Great Eastern Railway Co., 51 L.J.Q.B. 453, (1882) 9 Q.B.D. 110; 46 J.P. 617; 30 W.R. 798.

Knight v. Halliwell, (1874) L.R. 9 Q.B. 412; 43 L.J.M.C. 113; 30 L.T. 359 38 J.P. 470; 22 W.R. 689.

Ex Parte Markham, (1869) 34 J.P. 150; (1869) 21 L.T. 748; 18 W.R. 258.

General Medical Council v. Spackman, (1943) 2 All E.R. 337; (1943) A.C. 627; 112 L.J.K.B. 529; 169 L.T. 226; 59 T.L.R. 412; 87 Sol. Jo. 298.

Board of Education v. Rice, (1911) A.C. 179; 80 L.J.K.B. 796; 104 L.T. 689; 75 J.P. 393; 27 T.L.R. 378.

Emerson v. Amell, (1672) 3 Salk. 160; (1672) 1 Freem. K.B. 22; Keb. 874; 1 Ventr. 187; 89 E.R. 20.

Thomas v. Nebham, 12 W.A.C.A. 229.

Acts and Ordinances referred to:-

Law Reform (Miscellaneous Provisions) Act, 1934 (24 and 25 Geo. 5, C. 41

Civil Procedure Act, 1833 (3 and 4 Will. 4. C. 42) secs. 2, 45.

Administration of Estates Act, 1925 (15 Geo. 5 C. 23).

Conveyancing Act, 1881 (44 and 45 Vict. C. 41).

Statute of King Edward, 1351-1352 (25 Ed. 3 C. 5).

E.R. High Court Law, 1955 (E.R. No. 27 of 1955) section 14.

Native Court Ordinance, Cap. 142, (1948 Ed.) section 401(b).

Orders and Rules referred to:-

Rules of the Supreme Court of Judicature (England), 1875 Order 50, rule 4.

Rules of the Supreme Court of Judicature (England), 1883, Order 17, rule 4.

E.R. High Court Rules, 1955, Order 3, rule 4(1).

APPEAL from Magistrate Court.

Okon for the Appellant.

Arikpo for the Respondent.

Idigbe, J.:-This is an appeal against the Judgment of the learned Chief Magistrate, Calabar, sitting on an appeal from the Judgment of the Calabar Native Court of Appeal. The present appellant was sued in the Ikot Omin Native Court, Calabar by the respondent who died while the appeal was pending and he claimed as follows:-

£50 special and general damages from the defendant in that the defendant did wrongfully tap or authorised the tapping of plaintiff's palm wine trees (3) at Ikot Nsisuk and made use of the wine therefrom without the knowledge and permission of the plaintiff discovered on 30-3-58.

The Ikot Omin Native Court having heard the case found in plaintiff's favour, by its majority Judgment and made in his favour an award of £5 as damages and £4-4s inspection fees and 17s costs.

The defendant then appealed to the Calabar Native Court of appeal which reversed the finding of the Native Court of Ikot Omin, and in a unanimous Judgment allowed the appeal in favour of the defendant who was also awarded a total of £4-9s-6d costs. The plaintiff then appealed to the magistrate's court, Calabar. Before the hearing of the appeal, the plaintiff died and an application by a woman, Bassey Asuquo for an order of substitution in order to continue the appeal was on the 31st of March, 1960, ordered as prayed in spite of opposition from the defendant. Subsequently the appeal was heard and the learned Chief Magistrate, Calabar, on the 21st of January, 1961, allowed the appeal and restored the Judgment and order of the Ikot Omin Native Court, Calabar. It is against this Judgment that the defendant has now appealed to this Court and his grounds of appeal settled by his Counsel are set out at 35 of the record of proceedings.

The facts of the case may be summarised as follows:-The plaintiff claims, that the palm trees involved in the dispute belonged to his brother one Okon Orok (also admitted on both sides to be Effiom Orok) who died in 1956. He claimed that he became the owner of the trees by inheritance. The trees according to him were planted on Nsisuk's land he belonged to the Nsisuk family. He further claimed that the palm trees were planted by his brother Okon (Effiom) Orok in 1943. His witness who described himself at first as Ekpenyong Okon of Idiba (but later, as James Ekpenyong Okponnaya) said that he knew when the trees were planted-at first he said it was in 1949, and later he said they were planted in 1948, 1951 and 1954 by the deceased brother. This witness first said that he knew the deceased planted the trees because one Efanga who actually planted them as agent of the deceased frequently left the seedlings in the front of his house and from time to time reported to him the progress of the planting operation. Later however he said that he actually accompanied the deceased "three times to plant the wine trees, once a year." Perhaps by the phrase quoted from his evidence witness meant that he accompanied the deceased Okon Orok once in each occasion in 1948, 1951 and 1954. The plaintiff's other witness-Itong Ubok of Ikot Eyo claimed that he tapped the palm trees during the lifetime of the plaintiff's brother and that was in 1957 but as already stated, the plaintiff himself said that his brother Okon died in 1956, and that he took care of the trees for three years from the death of his brother Okon before allowing them to be tapped.

The defence was spearheaded by one Mesembe Otu Ekpenyong of Efiong Nta family, who on his own application was joined by order of Court. His case was that the trees belong to the Efiong Nta family who own the land on which the trees are planted. He put in a document exhibit 'A' which was a case by one Archibong against the Efiong Nta family. He alleged that the plaintiff and his brother knew of this case and testified in court at the hearing of the case. Exhhibit 'A', he said related to the land on which the palm trees are situate and that it was a claim for declaration of title to the land against his family. Judgment was in favour of the Efiong Nta family and that on appeal, the Calabar Native Court of Appeal confirmed the Judgment and dismissed the appeal by Archibong-Exhibit 'B' refers. It may be noted here that exhibit 'A' does not confer title to the land involved in that suit on the Efiong Nta family but is strong evidence of act of possession of the land by the Efiong Nta family-Kobina Ababio v. Priest in-charge Catholic Mission, Ampenyi, 2 W.A.C.A. 380 and if it can be shown that the land involved in exhibit 'A' is the same as the land on which the palm trees and the subject matter of this claim are situate-that Judgment could (if the other requirements for the operation of estoppel are present) operate against the plaintiff as estoppel (by conduct) as regards appellant's assertion of ownership to the land in dispute-See Nana Ofori Atta v. Nana Abu Bonsra Agyei (1957) 3 A.E.R. 559 at 561, and Lord Penzance in Wytcherley v. Andrews (1871) L.R. 2 P & D at 328, who said.... If a person knowing what was "passing was content to stand by and see his battle fought" by somebody else in the same interest, he should be bound "by the result, and not be allowed to reopen the case."

Continuing his evidence, defendant called two witnesses-one a 60-year old farmer who claimed to have been present when Ndarake of Efiong Nta family planted the trees, and one Ekpo Ekpo Okon who generally corroborated the evidence of Mesembe Ekpenyong. The case of the parties in a nutshell is as stated above.

Shortly after the appeal in the magistrate's court had been filed, plaintiff died and the learned Chief Magistrate on the 31st day of March, 1960, granted the prayer of Bassey Asuquo for substitution of the deceased plaintiff. Counsel for appellant contended before the learned Chief Magistrate,-and in this Court, has pursued his contention-that the action being a personal action there ought not to be a substitution of the dead party. In support of his contention he cites the maxim of the law, "Actio personalis moritur cum persona", and also the case of Hodge v. Marsh, (1936) A.E.R. 848.

The above maxim was strictly applied at Common Law but today in England the effect has, to a very large extent,

been reduced by the Law Reform (Miscellaneous Provisions) Act, 1934. That Act does not apply to this Region....Section 14 of the High Court Eastern Region Law 1955. But even before 1934 the effect of its strict application was considerably reduced by remedial statutes. At Common law:-

Executors and Administrators cannot maintain an action for an assault upon or false imprisonment of their deceased testator or intestate ... not ending in death. So, formerly, when damage done to real property accrued wholly in the lifetime of the testator, the heir-at-law, devisee or remainder man), could not sue in respect of it; neither could the personal representative in consequence of the old maxim of common law actio personalis moritur cum persona. Thus, if trespassers entered upon the land and cut down trees, or carried away and sold growing crops and fruit, or set fire to buildings...the heir-at-law could not sue, because the damage was sustained in the lifetime of the ancestor, and the personal representatives could not recover the damages that had been sustained, because they were personal to the deceased, and the remedy died with him.

Addison on the Law of Torts 8th Edition at 86 et seq.

By statutes remedy was gradually given to the personal representatives of a deceased who had such cause of action in his lifetime.

By a statute of King Edward in 1351-2 (25 Ed. 3 C. 5) executors were allowed to sue for goods of the testator's which were carried away in his lifetime and so in Emerson v. Amell (Annison, Emerson) 1672, 3 Salk 160 it was held that trespass lies at the suit of an executor for cutting and carrying away growing corn in testator's lifetime. Later, in 1833, a statute of King William, Civil Procedure Act 1833 (3 & 4 William 4, C. 42), section 2, carried the remedy further when it provided a right of action to the executors and administrators of a deceased for injuries to the real estate of the deceased committed in the lifetime of the deceased for which an action might have been maintained by such a deceased person provided the injury was committed within six months before his death and provided such action was brought within 12 months after the death of such person. The Civil Procedure Act 1833 was by section 45 of that Act, until the Administration of Estates Act 1925 when most of its sections were repealed, of general application throughout England although it did not apply to Scotland and Ireland. In Thomas v. Nobham, 12 W.A.C.A. 229, the Conveyancing Act 1881 was held to apply to Nigeria although it did not apply to Scotland. In my view by section 14 of the High Court Law, Eastern Nigeria, the Civil Procedure Act 1833 applies to the Eastern Region as it was of general application in England in January 1900.

That statute being remedial in its nature, very liberal interpretations have been given to it. So that when an application was made, to substitute a party in a case pending on appeal, under the provisions of Order 50, rule 4 Rules of the Supreme Court of England 1875, in a matter which affected the Personal Estate of a deceased person, order for substitution was made.... Twycross v. Grant (1878) 47 L.J.Q.B. 676.

Order 50, rule 4 of 1875 R.S.C. (England) is in substance repeated in Order 17, rule 4 of the present Rules of the Supreme Court (England). Order 3, rule 4(1) of the Eastern Region Magistrates' Courts Rules is substantially the same. Considering the application in Twycross v. Grant, Field J. observed as follows:-

In this case we are called upon to construe the terms of Order 50, rule 4 of the Rules of Court 1875. This is a new provision in the nature of an equitable regulation, intended to prevent the scandal of actions becoming fruitless after having reached an advanced stage. It is quite true that actio personalis is still a maxim of the law. £but the principle of the matter is entirely in favour of the order made by Master Bennett. I should be content to take my stand upon the Judgment of Lord Ellenborough in Chamberlain v. Williamson (2 M & section 508). The principle of that Judgment is that executors and administrators are the representatives of the wrongs of their testators, where those wrongs operate to the injury of the personal estate.....As far as regards the language of rule 4, I incline to think that the words "transmission of interest" must be limited to any other event and do not refer to the event of death. The point we have to determine is whether by reason of death it is desirable that any other person should be made a party to this action. I am of the opinion that this case falls within the meaning and words of the rule and that the order of Master Bennett is right.

But this does not mean that in all cases where a deceased person had a right of action in his lifetime the personal representative could continue. In Matrimonial Causes and pure torts, i.e., where the injury is strictly personal and does not relate to the estate, an application for such substitution may be refused as was done in Hodge v. Marsh (Matrimonial Cause) above cited and Pulling v. Great Eastern Rly. Co. 51 L.J.Q.B. 453 in which case at 454 Denman J. said "But no case has gone so far as to hold that when the original tortious act was the personal injury caused to the plaintiff so as to give rise to a strictly personal action such action can be maintained after death by an executor merely because some expenditure of money was incurred in consequence of the injury before death."

In the case which is the subject of this appeal the evidence makes it clear that the injury was not one that was strictly personal and the action was commenced by deceased within a month of injury. The personal estate of the deceased was affected, as was in the case of Emerson v. Amell (Emerson) (above cited). In my view the order of the learned Chief Magistrate substituting Bassey Asuquo, who by her Affidavit claims to be a person interested and the heir-at-law of the deceased plaintiff, is correct.

The appellant argued generally regarding the inadequacy of evidence to sustain the finding of the learned Chief Magistrate. I have earlier discussed the various aspects of the evidence before the lower Native Court and it may be that there was substance in this aspect of the argument on appeal. I however do not propose to make any decision on that ground of appeal for it appears to me that there was gross miscarriage of justice in the Native Court of first instance. In that court the Native Court in the course of the defence ruled that they did not wish to hear further evidence and apparently refused to hear other witnesses of the defendant. In the Native Court of Appeal the defendant made it a ground of appeal. That Court did not make any pronouncement on the point. As in the Native Court of Appeal, the Chief Magistrate's Court did not advert to that point which the appellant raised in the lower Court of Appeal. It is true, that the attention of the court was never drawn to it by Counsel on both sides as in this Court. But it being a point of law this Court can take it and did take it....Knight v. Haliwell, (1874) L.R. 9 Q.B. 416 and Ex Parte Markham, (1869) 34 J.P. 150. To my mind failure by that court to allow the defendant to call all his witnesses and to hear them amounted to a breach of the rules of Natural Justice. In General Medical Council v.