CaseLaw
Overseas Con. Co V. Creek Ent. Ltd (1985) CLR 12(a) (SC)
Judgement delivered on December 13th, 1985
Brief
Facts
The Plaintiff, now appellant, originally sued one defendant - Creek Enterprises (Nig.) Ltd. - claiming special and general damages for trespass and an injunction. The writ of summons dated 15/1/76 was filed on 16/1/76. On an application, the plaintiff was on the 9th February 1976 granted leave to join a further defendant, namely Nelphinco and Company Ltd. Pleadings were then ordered and a statement of claim and a statement of defence were accordingly filed on the 23/4/76 and 27/5/76 respectively. The case was however not tried on these original writ of summons and statements of claim and defence.
The trial court found as a fact that the respondent was in unlawful occupation of the appellant's premises, the property in dispute, but the court failed to find the respondent liable to the appellant for trespass and dismissed the claim because, although contrary to the evidence before it, the trial court also found the appel-lant's tenants, Wiedemann & Walters, were in possession. It held that, trespass being a wrong against possession, it was not the appellant who could sue.
Dealing with the issues of trespass against the 1st defendant, the trial court re¬lied on a proposed sublease of the premises by the plaintiff to Messrs. Wiedemann & Walters tendered as EX.N as "evidence of the fact that the plaintiff had already let the property concerned to Wiedemann & Walters by 4th January, 1971, when the 1st defendant was alleged to have committed the trespass" and found at p.91, lines 26 to 32 of the records of proceedings:"It is my finding therefore...... that as from 1st January 1971 the property con¬cerned was in the possession of Wiedemann & Walters as tenants and that as such the right of action for any trespass on it on 4th January, 1971 was not in the plaintiff but in Wiedemann & Walters".
Dissatisfied with this decision the appellant appealed to the Court of Ap¬peal which affirmed the High Court decision. Appellant appealed to the Supreme Court.
Issues
Whether it is proper for a Court or trial Judge to raise an issue that...