3PLR – DOMINIC AGBA AGOCHUKWU V ESIA NWOSU & 3 ORS.
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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DOMINIC AGBA AGOCHUKWU
V
ESIA NWOSU & 3 ORS.
FEDERAL SUPREME COURT OF NIGERIA
3PLR. 26/1961
22ND FEBRUARY, 1962.
BEFORE THEIR LORDSHIPS
SIR LIONEL BRETT, F.1. (Presided)
JOHN IDOWU CONRAD TAYLOR, F.J.
SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)
MAIN ISSUES
LAND LAW – Declaration of title – Requirements in native court – Right to bring subsequent action in the High Court.
PRACTICE AND PROCEDURE – EVIDENCE – Res judicata – Decision of native court- Whether binding on parties.
REPRESENTATION:
Chief F.R.A. Williams, Q.C. (with him, M.T.C. Umeziuwa) -for the Appellants.
- Balonwu -for the Respondents.
BAIRAMIAN, F.J. (Delivering the Judgment of the Court): In this appeal the plaintiffs complain against the judgment given by Betuel, J., in the High Court of the Eastern Region on the 7th November, 1960, in Suit No. 0/349/ 1958, in which the plaintiffs claimed declaration of title to a piece of land shown and edged pink on the survey plan No. GA 133/1958 (in evidence as exhibit 24). For convenience, the plaintiffs, now the appellants, will be referred to as the Isiekes, and the defendants as the Dikenafais.
In litigation between them before the Native Court – Suits No. 38 and No. 39 of the year 1938 in the Native Court of Northern Isu- the judgment of Mr. S.P.L. Beaumont, Assistant District Officer, who presided at the hearing in the Native Court, given on the 13th April, 1939, is as follows:
“I agree with the majority decision that the trench claimed by Ekesiobi in Suit 38/38 is not the boundary and dismiss his claim. Also I agree with the majority that the boundary shown to the Court by Uzoigwe is more likely to be the correct boundary and that judgment should be entered for him (Uzoigwe) for Nduru land up to the boundary, which is a line approximately at rightangles to the Main Road, extending from an Ogilisi tree on alleged boundary with Umuawube (Isiekenesi) in a fairly straight line across the road until it joins Umudi land in a valley about 400 yards from the road. This line is approximately 100 feet to 200 feet on the Dikenafai side of No. 3 trench (see map at page 164), on the Umuawube side of the P.W.D. road. From the P.W.D. road to the Umuawube boundary it runs approximately at rightangles to the road.”
The map referred to is a sketch which shows the road, and there is a line running across the road to the north, with which we are not concerned, and to the south, with which we are concerned, as far as the approach to the bank of a deep ravine; on the other side of the ravine the note is “probable boundary with Umudi”; and the distance between the road and the bank of the ravine is given as 400 yards.
In the evidence for the plaintiffs in the case in hand, their third witness, Charles Osumone, said in chief:
“I remember a District Officer called Beaumont, after the 1938 case, he made a sketch of the boundaries of this land and planted pillars on the boundaries between ourselves and Dikenafai, the boundary pillars are still on the land.”
Those boundary pillars appear on the survey plan, exhibit 24, with the letters “C.P.”; they stop just before the bank, below which runs the Ulasi river.
It is fair to add that when cross-examined the witness said as follows:
”After 1938 case we inserted pillars, the first C.P. north of the boundary of the disputed land on the Ulasi stream. The District Officer did not finish putting up the pillars.”
That is the explanation he gives of why Mr Beaumont put pillars only as far as the Ulasi stream.
In 1947 there was a suit of trespass, No. 16 of 1947, between the people of Isieke and those of Dikenafai; for the appeal a plan was made, which is in evidence now as exhibit 9. The District Officer who looked at the appeal from the Native Court was of opinion that the judgment given by Mr Beaumont did not concern itself with the portion of land in dispute, since it was beyond the ravine marked on the right hand side of the sketch plan, and was marked thereon as “probably belonging to Umudi”; and, he went on to say: “since the title of the land now in dispute has not been settled, it will be necessary for plaintiffs to take action for title to this land”; and he adjourned the appeal for that to be done. The Isiekes brought an action, No. 363/49, in a Native Court, and that went up on appeal before Mr. Bex, an acting District Officer. The plan, exhibit 9, was tendered in evidence by both parties, and the Dikenafais put in copies of the proceedings in Suits 38 and 39 of 1938 (which resulted in the Beaumont judgment), and Suit 61 of 1947. Mr. Bex decided as follows:
“Lest there be any misconception concerning the area in dispute, it should be stated categorically that it is contiguous to, but is not a part of the land disputed in Suits 38 and 39/1938. The Court did not cross the Ulasi valley in the course of those proceedings, and drew a boundary only up to the Northern lip of that valley. Mr. Beaumont, Assistant District Officer, made a mistake when he remarked that the boundary terminated at a point where it joined Umudi land in a valley 400 yards from the road. The Ulasi valley is 400 yards from the road. It is certain that the land on the other side of the valley is not owned by Umudi. The plaintiff has sought to convince the Court that Mr. Beaumont meant that the boundary continued in a straight line until it met Umudi land. Mr. Beaumont’s remarks cannot bear this interpretation. In his judgment on appeal in Suit 56/41, Mr. Brown, Assistant District Officer, remarked upon this error. I think it is clear that the boundary terminated in the valley. That place is the terminal point exactly.”
It is a little difficult to understand the statement that the Ulasi valley is 400 yards from the road. Measured on the plan on the assumption that it is all flat land from the road as far as the Ulasi valley, it is just a little more than 200 yards. It could only be 400 yards if one was walking the distance and the road went uphill and down dale. It may be that Mr. Bex said, or had meant to say, that “the Ulasi valley is not 400 yards from the road.” Be that as it may he is absolutely definite that the Beaumont boundary went as far as the Ulasi valley and did not cross it, but extended only up to the Northern lip of that valley; and Mr. Bex went on to say that:
“Plaintiff has based his claim upon allegation that it was the intention of the Court which heard Suits 38 and 39/38 that the boundary marked with cement pillars continued imaginarily to the Ulasi river and beyond it till land of Umudi people was reached.”
The important thing is that there was before the Court a survey plan, namely exhibit 9, and the Court definitely declared that the land of the Isiekes stopped at the bank before the valley of the Ulasi stream.
There is no need to go into the further cases before the case in hand was instituted in the High Court of the Eastern Region. The plaintiffs were relying on the Beaumont judgment of 1939, the defendants on the Bex judgment of 1950. The learned trial Judge said, with reference to the Bex judgment (which was upheld on appeal by the Lieutenant-Governor):
“All these proceedings contain a finding of fact that the last cement pillar just below it is the furtherest” (farthest) “south-eastern boundary of Nduru, plaintiffs’ land, in my view the decision in exhibit 1″ (the Beaumont judgment) “and the placing of the cement pillars was open to that interpretation, which I also believe to be the correct one. I do not regard the statements made as to that boundary as being merely obiter dicta, the plaintiffs claimed a declaration to the portion of land in dispute, they failed because it was held that Ugwu did not belong to them. The issue raised in this Suit appears to me to be res judicata, and to attempt to raise it, once more, amounts to an abuse of the process of this Court.”
It is perhaps worth adding at this point that following some litigation in the Native Court, the surveyor who later made exhibit 24 was asked in 1958 by the administrative officer concerned to demarcate the land, and was given the Bex judgment and exhibit 9; and he demarcated a line of E.J. pillars beginning with No. 3,300, and running westwards as far as E.J. 3,317, along the approach to the bank of the Ulasi stream, with the result that the land shown to the south of the road as belonging to the Isiekes stops just before that stream. The surveyor was not given the Beaumont judgment. The plaintiffs did not like what the surveyor was doing, and left the place, and the present action was begun shortly afterwards in the High Court.
The grounds of appeal are, briefly put:
(1) That the decision is unreasonable on the evidence;
(2) That the Judge erred in treating the issue raised in the Bex judgment as res judicata: for the Court there had no jurisdiction, as the area of land had been settled in the Beaumont judgment in the Isiekes’ favour, so the Bex judgment was a nullity;
(3) That the demarcation of 1958 was not binding, for it was not based on the Beaumont sketch;
(4) That the Judge’s demarcation, which followed the 1958 E.J. pillars, did not conform with the Beaumont judgment.
Exhibit 24, the survey plan of the Isiekes, shows a green line running south from the P.W.D. road; it touches the Ulasi valley, goes on to what looks like a gully with an unnamed rill, and ends at what is called the Nwaduruduru stream, as the terminal point of the area claimed under the Beaumont sketch. Measuring by his scale on the plan, Mr. Obianwu, the surveyor, said that 400 yards would take one as far south as the unnamed rill. The argument advanced for the Isiekes, under their grounds of appeal, is that they are entitled under the Beaumont judgment as far as the unnamed rill, and that Mr. Bex misinterpreted the Beaumont judgment.
The argument for the Dikenafais is that the Isiekes are bound by the interpretation given to the Beaumont judgment and sketch in the subsequent case; that it was only a rough sketch, with approximate distances, and that Mr. Beaumont was wrong about the boundary going as far as Umudi land. The reply for the Isiekes recognises that the sketch shows only one valley, but the argument is that Mr. Beaumont was only concerned with where the boundary began and ended.
When a Native Court of competent jurisdiction gives a decision, it is binding if left unchallenged; if it is challenged, then the decision on appeal is binding.
The trouble about a good many of the Native Court decisions is that they are not precise. Names of localities are apt to be migrant: one side shows one place as the place which bears a given name, the other side shows another place. If the name of a people is given as a boundary, there may be no agreement on where that boundary is on the ground. The trouble arises from the fact that the judgment in a given case is not tied to a survey plan which can be referred to later for locating the boundaries on the ground. Often enough one party or the other sues in the High Court for a declaration of title to land shown on a survey plan, and bases his claim on the Native Court judgment already given in his favour; at times the defendant uses the Native Court judgment to defeat the claim.
In strictness a plaintiff who has a declaration in a Native Court judgment should not sue again for a declaration: in practice it is recognised that the Native Court judgment when not tied to a survey plan is not precise, and that a declaration which is tied to a survey plan may be sought; and the suit is entertained in the High Court.
Learned Counsel for the Isiekes said in his opening address that the Beaumont judgment and sketch were not easy to understand, and conceded in reply that only one valley was shown in the sketch to the south of the road. There was also the significant fact that Mr. Beaumont placed pillars only as far as the bank before the Ulasi valley. There was dissension about the land to the south of that valley, and the Isiekes sued for a declaration that the land was theirs, relying on the Beaumont judgment. They claimed then about three times as much land as they are claiming now; they won by majority, but they lost on appeal, and the decision of Mr. Bex on appeal was upheld later by the Lieutenant-Governor of the Region. That decision has been quoted; it was tied to a survey plan.
Be it assumed that the Isiekes, instead of going to the Native Court, had gone to the High Court for a declaration of the Beaumont boundary with a survey plan; also that the High Court decided that the boundary extended as far as the Ulasi bank only: it is, consequently, not open to them to sue afresh in the High Court. There is no suggestion that the Native Court of Northern Isu was not competent, or that the decisions on appeal in Suit No. 363/49 of that Court were not competent; so the decisions on appeal in that suit are binding. In effect what the Isiekes did by suing in the High Court later was to appeal from the decision of the Lieutenant-Governor; but that was not possible in law.
Whichever way one looks at it, the submission that the Bex decision is binding is sound. Although the core of the grounds of appeal is that his decision (and that of the Lieutenant-Governor who upheld it) was a nullity, no argument was advanced to show that it was.
I would dismiss the appeal with twenty-one guineas to the respondents.
BRETT, F.J.: I concur.
TAYLOR, F.J.: I concur.
Appeal Dismissed.
