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3PLR/1956/12 (WACA)



[1956] VIII WACA 269












  1. I. C. Taylor for Appellants.
  2. N. Mbanefo for Respondents.



LAND LAW:- Dispute over title to community land and claim for damages in trespass – Three communities fighting over common/shared boundaries – Effect of past judgment s and arbitrations which did not involve all three as parties or privies – How treated

PRACTICE AND PROCEDURE – COURT:- Civil proceedings – Visit by trial judge to Locus in Quo after close of evidence – Need for Judge not to make himself a witness in the case – Irregularity in inspection – Whether fatal

PRACTICE AND PROCEDURE – JUDGMENT:- Order for a new trial based on amended, summons and pleadings – Whether technically the same as a a fresh action.



The following judgment was delivered:



This is an appeal from a judgment of Manson, J., in favour of the plaintiffs in an action for trespass to land.


The piece of land in question has been the subject of long dispute between three sets of parties resulting in arbitration, law suits, settlements, and judgments, not only of the Supreme Court but of this Court and the Judicial Committee of the Privy Council. Unfortunately, at no time in the course of these disputes have all three sets of parties come together in the same suit or settlement. The land or parts thereof have been claimed by the Orokwu, and the Umuori and the Adazi people, but never have all of them been parties to the same proceedings.


There is evidence that in 1916 there was a dispute between the Orokwus and the Adazi which is alleged to have been settled by arbitration, a common boundary being laid down between the two. This settlement, however, did not take into account the claim of the Umuoris, who were not parties to the proceedings, but who claim land lying within the holdings of the Orokwu and the Adazi which was therefore divided between the parties to the arbitration. It is clear that this did not dispose of the claim of the Umuori nor does it bind them in the present suit.


In 1938, however, the Umuori brought an action against the Adazi for trespass upon part of this land and were awarded substantial damages, in satisfaction of which the latter agreed to a demarcation of the boundary between them and the Umuori and the payment of £300. It appears from the plan exhibited in evidence that the boundary as laid down, whether it represented or not the cession to the Umuori of some part of the land hitherto held by the Adazi lay to the East of the land awarded the Orokwu by the 1916 settlement, though the trespass in respect of which damages were paid appears to have extended to such land. The Orokwu were not parties to the suit or the settlement and are not, therefore, bound thereby. There is nothing to show how far the Adazi s boundary was then moved eastward, if at all, but if they adhered to their agreement of 1916 it would not be further than from the line then agreed with the Orokwu. This would apparently have left a straight conflict between the Umuori and the Orokwu as to their rights to the land west of this 1916 line, with which it would appear the Adazi could be in no way concerned.


In 1940, however, an action was commenced between the Orokwu and the Adazi, described in the judgment of the Privy Council in later proceedings as “friendly enough”, and by the learned trial judge in the present proceedings as “most suspicious“ as a result of which the Orokwu, for some reason best known to themselves, succeeded in obtaining a consent judgment confirming the line of 1916 as the boundary line between these two parties. The Umuori having heard of this action sought to be joined, very properly, as they were certainly interested parties, but unfortunately, as the Privy Council held, their joinder was refused. The Adazi consented to a judgment which entirely ignored the claim of the Umuori which they had themselves acknowledged two years before.


In 1942, fortified [as] they considered themselves to be by the result of the 1940 proceedings, the Orokwu commenced an action against the Umuori, basing their claim not upon long possession but upon the consent judgment. For reasons which I must confess are not clear to me, both the Supreme Court and the Court of Appeal appeared to have held that the Umuori were privies and bound by the consent judgment to which they were not parties and from which they had been deliberately excluded at the instance of both parties to the proceedings. The Courts in West Africa both held, therefore, that the Umuori were bound by the judgment of 1940 and gave judgment in the 1942 suit against them. Upon appeal to His Majesty-in-Council, however, the judicial Committee set aside the judgment of these Courts, indicating clearly that in their Lordships’ view the Umuori were not bound by the consent judgment to which they were neither parties nor privies. In view of the fact, however, that the suit then before them had proceeded entirely on the basis of this judgment and not upon the rival claims of the parties to the land irrespective thereof, their Lordships did not direct that the claim of the Orokwu be dismissed but that they be given an opportunity of amending the summons and statement of claim in the suit, with leave for the Umuori to amend their defence also, and directed that if the Orokwu decided to follow this course a new trial should proceed in the ordinary way.


It is clear, I think, that their Lordships held the view that the issue between the Orokwu and the Umuori remained then at large, and that it was to be determined by a new trial, ff the Orokwu chose to take the necessary steps to ground a new trial by amendment of their summons and pleadings. Some seven months went by and the Orokwu took no such steps, but nevertheless, remained upon the land, their right to which as against the Umuori was still at issue. The Umuori, therefore, commenced the present proceedings claiming damages for trespass against the Orokwu. Pleadings were filed and thus, for the first time, issue was joined between these parties on their respective claims as owners “from time immemorial “ of the lands in dispute. The Umuori were bound neither by the arbitration of 1916 nor the consent judgment of 1940; the Orokwu were not bound by the judgment of 1931 nor the agreement of 1938.


In the suit of 1942, to which they were both parties, this issue has neither been joined nor determined.


It appears to me, therefore, that the issue at the trial of the present suit was a straightforward and simple one to which the earlier proceedings are largely irrelevant, that is to say, the conclusions arrived at therein in no way can be held to determine the present issue, though as evidence as to the history of the land, they have their relevance in relation to the conduct of the parties in the past and the bona fides therefore of their present claims.


The learned trial judge had before him all the evidence adduced by each of the parties in support of their claim to ownership from time immemorial, and after a most carefully considered judgment found in favour of the respondents, the Umuori.


His judgment has not been attacked either in the grounds of appeal or in the course of argument on the basis that there was no evidence to support his conclusion or that it was against the weight of evidence, but on certain alleged misdirections and certain alleged errors in law. It is to these grounds that I would now direct my attention. The first two grounds relate to alleged misdirection as to the nature and effect of certain observations in the judgment of the Privy Council in the 1942 suit. The alleged misdirection appears to be that the learned judge referred to the failure of the appellants to institute “any fresh action against the Umuori as they were advised by the Privy Council”, whereas the precise terms of their Lordships’ judgment directed a new trial of the same action if the present appellants amended the summons and statement of claim. This they have never done. I am at a loss to understand how there can have been any miscarriage of justice or in what way the present judgment can have been affected or the appellants prejudiced by the learned judge referring to a new trial on amended summons and amended pleadings as a fresh action. This may technically be a misdescription, but to all practical intents and purposes a new trial on fresh, in the sense of amended, summons and pleadings is surely a fresh action.


The third ground of appeal related to the description by the learned judge in several places in his judgment of the consent judgment as “suspicious.” Having considered the record of the 1940 case, I do not think a milder word could well be used to describe proceedings which, having passed through a process whereby interested parties were excluded from participation and all potentially dissident defendants were eliminated, proceeds to the adoption of a referee’s report in which I have looked in vain for any final conclusion on the main issue and the entering thereon of a judgment by consent of the sole remaining defendant, a man whom the referee in his report describes as “thoroughly dishonest .”


As I understand this ground of appeal its real purport is that the learned judge, having described it as “suspicious ” proceeded on that ground to treat it as if it were of no effect. I do not think he did so. It certainly is of no effect as binding upon the respondents in the present case, and the learned trial judge rightly so treated it, for as their Lordships held in their judgment in the 1942 suit, “whether collusive or not,” it is not binding upon the Umuori, who are neither parties nor privies thereto. I would, with respect, express the view that whether suspicious or not (a milder term) it is not so binding and the learned judge from that point of view rightly ignored it.


This would readily dispose of ground four also, but if I rightly understand him, Counsel for the appellant included under this ground a submission that the Adazi having by their agreement of 1916 divested themselves of their interest in all the land to the west of the red line on the plan exhibited in evidence, could not thereafter by their agreement with the respondents in 1938 confer any title upon them. This submission might have been attractive if in the first place the respondents based their claim primarily upon the 1938 agreement, and secondly, if that agreement purported to convey or cede to the respondents any part of the land previously granted by the Adazi to the appellants. But this is not so. The respondents claim that they have been owners of the land in dispute from time immemorial. The agreement of 1938, whether it involved any abandonment by the Adazi of land thereafter claimed by them or not (and this is by no means clear), did no more than fix the eastern boundary of the respondents’ land and at a point which did not infringe upon the boundary previously acknowledged by the Adazi, but not by the Umuoris, as the eastern boundary of the Orokwu. With the settlement of this boundary in 1938 the Orokwu can be in no way concerned. The issue still remains as to whether they or the Umuori are entitled to the land lying to the west of the line, an issue which the agreement neither purported to determine nor was competent to determine.


Passing over for the moment ground five, I would proceed to the consideration of the sixth ground of appeal which alleges that the learned judge misdirected himself “ in failing to consider the evidenciary value) of the referee’s report “ in the 1940 suit. As I have already indicated, that ,suit is not binding upon the respondents and had the referee reached any final conclusions upon the main issue his report would still be irrelevant as determining the present issue. But as I have already pointed out, the referee came to no such final conclusion. In the final paragraph of his report he submitted two questions for the decision of the Court, questions which were not, however, answered, for the adoption of his report was followed, although in my opinion it did not flow therefrom, by the consent judgment which, while it binds the parties thereto, does not determine in any way the issue between the present parties.


I come to the fifth ground of appeal, which relates to a visit paid by the trial judge to the locus in quo. It is alleged that the learned judge erred in law in not inspecting the land before the close of the evidence and in not recording his findings, so as to afford the parties an opportunity of leading evidence after the inspection. The record discloses that after the closing of the defendant’s case and the addresses of Counsel on both sides, the learned judge at the instance of Counsel who expressed themselves as “anxious“ that he should do so, decided to inspect the land which he subsequently did, in company with the parties and their Counsel. I am not aware of any rule of law which determines at what stage in the trial a visit of inspection must be made if it is to be made at all, and it will behoves a party at whose instance through his Counsel such a visit has been made to complain if his request is conceded. The only question which I think can fall for consideration upon this ground of appeal is whether, as a result of the inspection in the circumstances and manner in which it was made, the appellants’ case has been prejudiced and any miscarriage of justice has been occasioned. We have been invited by Counsel to lay down certain rules as to the way in which such inspections should be made and the manner in which the results should be recorded, but I do not consider it desirable that we should venture upon any such course. It will suffice, in my opinion, if we recall the purpose of such visits as defined in London General Omnibus Co. v. Lavell (1), when Lord Alverstone said, “I have never heard it said and, speaking for myself, I should be very sorry to endorse the idea that a judge is entitled to put a view in place of the evidence. A view, as I have always understood, is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply the evidence .” To this I would do no more than add that in all cases in which a visit is paid by the Court to the locus in quo in a civil action the judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based upon his personal observations of which there is no evidence upon the record. When there is conflicting evidence as to physical facts, I have no doubt that he may use his own observations to resolve the conflict, but I do not think it is open to him to substitute the result of his own observation for the sworn testimony nor to reach conclusions upon something he has observed in the absence of any testimony on oath to the existence of the facts he has observed. Should he do so he would, in my view, be usurping the position of the witnesses, and if his decision is materially affected by conclusions drawn from facts of which there is no evidence upon the record, this may result in the reversal of his judgment or the order of a new trial.


In the present case, perhaps owing to the stage of the proceedings at which he was invited by Counsel to visit the land, the learned judge may have erred in that he may refer in his judgment to certain facts of which there is no evidence on the record, but which he observed on the occasion of his visit and have drawn certain conclusions therefrom, but I am not satisfied even if this is so that those conclusions materially affect the decision at which he arrived on the main issue before him or that if he had not made such observations his judgment would have been any different.


I consider, therefore, that each ground of appeal fails in substance, that the appellant has failed to show that the judgment in the Court below was wrong, and that the appeal should be dismissed with costs.



I agree.




I agree.


Appeal dismissed.


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