The Learned Chief Magistrate after hearing the evidence dismissed the plaintiff's claim holding that:-

(1)     the plaintiff had failed to prove the items of special damages alleged, and

(2) that:-

"With regard to item 4 £100 for general damages I have found no legal authority which supports the view that general damages are recoverable in a case like that before the court and the claim for general damages is also disallowed."

Perhaps I should also have said earlier that there was also a claim for an injunction to restrain further trespass, and on this head the Learned Trial Chief Magistrate held that:-

"With regard to the claim for injunction it is a well established principle of law that where damages would compensate adequately injunction would not be granted ... but in this case which is the nuisance caused by projection of trees, I hold that an award of damages would compensate adequately from the abatement of such nuisance in a proper case and application for injunction is also rejected."

Learned Counsel for the appellant during the course of his argument rested his appeal wholly on this latter part of the judgment of the court below urging that having found that an award of damages would compensate the plaintiff the court should have proceeded to make an award. He abandoned the appeal on other heads of special damage.

The position is not however quite as simple as that for the crux of the matter before the court below and on appeal is, as urged by the defendant who argued his appeal himself, whether in an action for nuisance such as this proof of damage is or is not necessary to success.

In this respect my attention was drawn by Chief Okorodudu to the following passage in the 12th Ed. of Clerk and Lindsell on Torts at Page 656 Article 1244 where the learned authors say that:-

"The distinction between trespass and nuisance is the old distinction between trespass and case. Trespass is a direct entry on the land of another, but in nuisance the entry is only consequential ... Again trespass being an invasion of a legal right, is always actionable without proof of damage. On the other hand, in many cases nuisance is not actionable without actual damage.

It is a nuisance and not a trespass if the branches of a tree, whether planted or self sown, growing on the land of one man, overhang his neighbour's land, or if the roots burrow into his land and damage his buildings."

The learned authors of the same authority say earlier at page 646 Article 1225 that:-

"In nuisances of the second kind, namely, those causing physical damage to land, (damage of the type that took place in this present case on appeal is included at page 638: Art 1213) actual, not merely prospective, damage is essential to a cause of action. Until damage is caused no nuisance exists, only the potentiality of a nuisance."

There can therefore be no doubt that in an action of this nature unless the plaintiff can prove damage he has no cause of action for in the absence of such damage his remedy would seem to be a right to lop the branches which overhang his land. This right was stated by Lindley L.J. in the celebrated case of Lemon v. Webb 1894 3 Ch. I at page 12 in these words:-

"The right of an owner of land to cut away the boughs of trees which overhang it, although those trees are not his, is too clear to be disputed. This has been declared to be the law for centuries."

This is of course subject to there being no damage caused to the land of the neighbour by the overhanging trees, for where damage ensues, then, as Kennedy J. said in the case of Smith v. Giddy 1904 2KB 448 at 451.

"...I think there must be a right of action. In such a case I do not think the owner of the offending trees can compel the plaintiff to seek his remedy in cutting them. He has no right to put the plaintiff to the trouble and expense which that remedy might involve."

The Learned Trial Chief Magistrate having found against the plaintiff on the question of proof of damage ought then to have dismissed the action for damages and injunction leaving the plaintiff to his remedy of lopping off the branches. The consideration of the issue of injunction or no injunction would arise only if and when the plaintiff proved his claim or right to damages. The appeal was based solely on this point as to the alleged right of the plaintiff to general damages in the absence of proof of damages. The authorities are not in support of that view. The appeal must therefore fail and is dismissed. In view of the defendant's magnanimity in waving costs there will be no order as to costs.

Appeal dismissed.