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18TH JUNE 1935

3PLR/1935/8 (WACA)






  1. M. KODILINYE – Defendant-Appellant





  1. Alakija with Montacute Thompson and A. Soetan for appellant.
  2. W. Clinton with A. Kayode for respondent



LAND LAW:– Declaration of title to land – onus on plaintiff with regard to same – failure of plaintiff to discharge onus – consequence of.

PUBLIC LAW AND JURISPRUDENCE – FAIR HEARING:– Parties to a suit – Need to afford them fair and impartial hearing

PRACTICE AND PROCEDURE – APPEAL:– Finding of fact of lower court – When can be interfered with on appeal – Misdirection – How determined

PRACTICE AND PROCEDURE:– Joinder of parties – Refusal of court to join a named party – When plaintiffs are deemed prejudiced by refusal

PRACTICE AND PROCEDURE – RULES OF COURT:– Order 39 rule 1 Supreme Court Rules – Whether applicable to this case.




WEBBER, CJ., (Delivering the leading judgment of the court):

This is an appeal from the decision of Mr. Justice Graham Paul, who gave judgment for the defendant representing the Onitshas in a case in which the appellant, the Head Chief and Eze of Obosi, sought a declaration of title to a piece or parcel of land known as the western portion of Anaisiowuru situate in the Onitsha Province.


The learned Judge in the court below dealt exhaustively with all the aspects which a claim of this nature presents – after hearing both parties and their witnesses he delivered his final judgment. He had already dealt with the plea of res judicata raised at the initial stage of the case. In his judgment which is the subject of this appeal he deals first with the evidence generally, criticizing the evidence on both sides as conflicting and somewhat confused. Then he dealt fully with the rival traditional stories and concluded that there was little to choose between the two versions. He proceeded onwards and dealt with the occupation of the rival parties and finally he reviewed all the cases between the Onitshas and Obosi regarding the land in dispute.


Eleven grounds of appeal were filed. Five of these grounds deal with misdirection namely grounds 5, 6, 8, 9 and 10 and I can find no substance in any of them. In expressing the opinion that Major Leonard’s book is unhelpful in assisting the court to arrive at a conclusion as to the first settlers on the land in dispute the court cannot be said to be misdirecting himself nor is it a misdirection to say that the court is not satisfied that any of the plaintiff’s witnesses actually farmed on the land.


I also fail to see that the court misdirected itself as to the exact position of the 4th milestone. I agree with counsel for appellant that there was no justification for the conclusion arrived at by the learned Judge that the reason cases 12B of 1928 and 13 of 1931 were struck out was because the evidence available was not sufficient for counsel to file a statement of claim as ordered by the court – this erroneous deduction does not in my opinion vitiate the finding of the court. As to ground 1 that the plaintiffs were prejudiced by the refusal of the court to allow the application of the plaintiff that the Obi or King of Onitsha or his representative be joined as a co-defendant I can only say in answer that the plaintiffs were not at all prejudiced. For seventeen years litigation about this land was carried on and no thought of adding the Obi of Onitsha was conceived by the parties. The plaintiff could have made the Obi a co-defendant before issuing his writ. The learned Judge in my opinion was correct in disallowing the application.


The remaining grounds embrace the questions (a) as to whether the judgment should have been one of non-suit, and (b) as to the weight of evidences. Grounds 3 and 4 deal with the question of non-suit.

(3)     The court having arrived at the decision that the evidence adduced both for the plaintiff and defendant “was conflicting and somewhat confused” should have non-suited the plaintiffs instead of giving judgment for the defendants.

(4)     That the court erred in law in giving judgment for the defendants when the court was satisfied in its mind that there was little to choose between the rival traditional stories as advanced by the plaintiffs and as related by the defendants.


Appellants counsel refers us to order 39 rule 1 of Supreme Court Rules which reads as follows:-

“The court may in any suit, without the consent of the parties, non-suit the plaintiff where satisfactory evidence shall not be given entitling either the plaintiff or defendant to the judgment of the court.”


I do not think that this rule should be applied in this case which seeks for a declaration of title. The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant. Such a judgment decrees no title to the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.


As to the weight of evidence ground 11 with which may be added grounds 2 and 7, the principle has long been established that the appeal court will not interfere with the verdict of the Judge below unless such verdict is shown to be perverse or not the result of a proper exercise of his judicial discretion. That has not in my opinion been done in this case. It was for the learned Judge to select the witness whom he thought worthy of credit – he may have considered and obviously did consider the other witnesses inconclusive and there being conflicting evidence he came to the conclusion that the evidence as to ownership had not been proved or had not been proved under circumstances which resulted in establishing ownership. In his judgment on the plea of res judicata, the learned Judge stated that the effect of a long series of cases will make it extremely difficult for the plaintiff to convince a court of the bona fides of his claim.


This obiter dictum was animadverted upon by counsel for the appellant in his address and he raised the question of the propriety of the Judge hearing the case on the merits, seeing that the learned Judge had at that early stage of the proceedings expressed a doubt as to the bona fides of the claim.


The judgment on the plea of res judicata was delivered in March, 1934, and the case was then adjourned. It came before the same Judge as the Assizes held in September, 1934 and no objection was raised to the same Judge’s sitting and continuing the case to its conclusion. I cannot bring myself to believe that this obiter dictum expressed by the Judge in March had any effect on the Judge’s mind in September when he proceeded with the case.


The care and exhaustive hearing given to both parties during the whole of the proceedings and the weighing of the pros and cons in the evidence given by them convince me that the parties were given a fair and impartial hearing throughout.


I think this appeal should be dismissed with costs.


KINGDON, CJ.: I concur.


BUTLER-LLOYD, J.: I concur.



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