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17TH JUNE, 1957.


3PLR/1957/53 (SC)




M.C. NAGEON DE LESTANG, F.J. (Read the Judgment of the Court)




  2. WIDE MACHIE (for and on behalf of themselves and as representing the people of Umuogheye-Akwuete Nneyi)


  3. OBI CHIEJIE (for and on behalf of themselves and as representing the people of Offianta-Nsugbe)


Chuba Ikpeazu (with him Messrs G.C.M. Onyiuke and L.M.E. Emejulu) -for Appellants.

Alex O. Mbanefo -for Respondents.


LAND LAW – Declaration of title – Boundary of land not certain – Effect.

LAND LAW – Title to land – Occupation of pan only – Effect thereof.

LAND LAW – Trespass – Mesne profit for – Date of assessment – Whether before or after date of writ.

PRACTICE AND PROCEDURE – Non-suit – When to make.


DE LFSTANG, F.J. (Delivering the Judgment of the Court):

This is an appeal from a decision of the High Court of the Eastern Region in the Onitsha Jud­icial Division. The respondents represent the people of Offianta-Nsugbe and the appellants those of Umuogheye-Akwuete Nneyi. In 1947 the respondents instituted proceedings wherein they claimed

  1. A declaration that they were the owners of a large tract of land on the Anambra Creek verged pink on their plan;
  2. An order for possession of that land, and
  3. £300 by way of mesne profits from the appellants whom they alleged were their tenants on the land.

The appellants’ defence was that the land belonged to them and was occupied by them in their own right. The case was first tried by Manson, J., whose Judgment was, however, set aside by the West African Court of Appeal which ordered a re-trial before another Judge. It was re-tried by Hurley, J. who found the respondents to be the owners of a portion only of the land claimed. He accordingly granted them a declaration in respect of that portion and also made an order for possession of that portion in their favour and for payment by the appellants of £300 by way of mesne profits. It is against that judgment that this appeal is brought.

There are three grounds of appeal, and I propose to deal with them in the order in which they were argued. The first and main one (which is ground 3 of the Memorandum of Appeal) reads thus:

“The teamed Judge having found that the plaintiffs/respondents did not prove their case namely, title to the whole of the land in dispute, ought to have dismissed the plaintiffs’ case and not to partition the land as he did not give title and possession of part thereof to the plaintiffs/respondents.”

By their Statement of Claim the respondents claim to be the owners of a piece of land made up of two portions which they call Otuonya and Achutu, the boundaries of the portion as a whole being shown in their plan,

Exhibit 1, which they produced at the trial. According to the plan the northern half of the land approximately is called Otuonya and the remainder to the south is called Achutu. The plan does not however, show the whole boundary between Otuonya and Achutu but only part of it, as to which the stream Nne Adachutu is indicated as being the boundary. The respondents’ evidence contradicted both their Statement of Claim and their plan since it was, in the words of the learned trial Judge that the whole of the land in dis­pute is Achutu and that Otuonya is an undifferentiated part of it or place in it with no boundary or dividing line.” Nevertheless, the learned Judge found that the respondents had proved their title to as much of the land as they cal­led Achutu but not of the part they labelled Otuonya in their plan, and he proceeded to demarcate Achutu thus:

“On the East (which should read West) by the Anambra River as far south as the Okpokolo or Ogene stream; then by that stream to its source; then to the source of the Eji stream along the line delineated in the plaintiffs plan hereinafter mentioned; then by a direct line from the source of the Eji stream to the source of the Nne Adachutu stream; then along the Nne Adachutu stream to its confluence with the Adimura stream, then by a direct line in a North-easterly (by which he must mean North-westerly) direc­tion to the Bank of the Anambra.”

The appellants contend that the boundary line thus drawn by the learned Judge between Achutu and Otuonya in the respondents’ plan is not supported by the evidence and is in fact an arbitrary one. In my view, this contention is well founded. There was not a shred of evidence that there was an existing boundary between the land called Achutu and Otuonya. On the contrary the respondents’ evidence clearly was that there was none. The plan itself, as I have already said, showed a partial boundary along the course of the Nne Adachutu stream, which again was in direct contradiction to the evidence of the respondents which the learned Judge himself sum­marised in these words in his Judgment:


“but in their evidence they say that the whole of the land in dis­pute is Achutu and that Otuonya is an undifferentiated part of it or place in it with no boundary or dividing line. They and their witnesses describe this place Otuonya variously as being within Achutu, as being in the middle of Achum, as being the part of Achutu on the bank of the Anambra, and as being the place on the Anambra where people who farm in the neighbourhood of the Achutu “ju-ju” come to get water.”


There being thus no boundary defined either on the plan or in the evi­dence, it could only be ascertained on the basis of occupation by the respon­dents of the portion demarcated by the learned Judge. There was, however, no evidence that the respondents, either by themselves or through their ten­ants, occupied any land up to the line drawn by the learned Judge. That the evidence merely established occupation of parts of the southern portion of Achutu was recognised by the learned Judge in his Judgment where he says: “but the only other witness (i.e. apart from the appellants) who has said exactly where any tenants farm is the 6th witness for the plaintiffs who said he himself farmed as a tenant within a mile of the Achum “ju-ju,” which would mean he farmed well to the south of the Nne Adachutu.”


Occupation of a part of the land in dispute does not necessarily establish title to the whole land. As Lord Thankerton said in delivering the opinion of the Privy Council in O.K. Foli v. Chief Ohang Akesse, 2 W.A.C.A. 46, at page 50:


“In questions of disputed ownership of land, occupation and pos­session of portions of the disputed area is not relevant evidence of title to the whole area unless it can be reasonably attributed to a right to the whole area. The portions so occupied may be so numerous and so closely adjoining that they practically cover the whole area. No such conditions exist in the present case. Alterna­tively, the occupation of a portion may be reasonably attributa­ble to a right of ownership in a larger area, as, for instance, occu­pation of a portion of a field may be attributed to a right extend­ing over the whole field. But the larger area must be defined; in other words, it must be attributable to an existing boundary.”


In the present case, as I have pointed out, Achutu is defined neither by the evidence nor by the plan exhibited. There is nothing, for example, to show why the learned Judge chose the source of the Eji stream and not that of the Okpokolo stream or any other point for that matter as the eastern end of the northern boundary of the land granted. His choice appears to have been quite arbitrary, although I have no doubt that it was actuated by the best of motives, but in my view the learned Judge erred in laying down a boundary where none existed and when that boundary was not supported by the necessary evidence of occupation. This ground of appeal, therefore, suc­ceeds. I might add that even if one were to accept the boundary drawn by the learned Judge one would be faced with this difficulty, i.e. that the western extremity of the boundary where it joins the Anambra Creek cannot be cor­rectly ascertained.


The next ground of appeal argued was the 4th, which is that the learned Judge was wrong in law to reckon mesne profits from the date of summons to the date of trial. Neither the writ nor the Statement of Claim states for what period the mesne profits are claimed. In the writ the plaintiff seeks “£300 mesne profits for the use and occuptation of the said land by the defen­dants.” The Statement of Claim is completely silent on the matter. As, how­ever, the total amount claimed is stated and as the date of the trial was unknown, it must be assumed that the claim was for the period ending with the date of the writ, namely, for about two years. It is also clear, I think, that the learned Judge intended his award to cover the period ending either with the date of the trial or possibly with the date of the Judgment because he said this about it:


“Plaintiffs have been deprived of the profits of this land for many years now, and it is seven years and more since action was brought. I assess the mesne profits at the full amount claimed, £300.”


This, in my opinion, he was not entitled to do as the West African Court of Appeal held in Chief Acha Uko and another v. Chief Uno Egin and another (unreported) that it was not competent for the Court to take into consideration damages flowing from acts of trespass continuing after the date of the writ. I would accordingly reduce the mesne profits awarded by two-thirds, to £100.


The last ground of appeal is that the decision is against the weight of evi­dence which, I understand, to mean that the evidence did not support the finding that the respondents owned any land – definable or not – in the area in dispute. There was undoubtedly great conflict of evidence as to the own­ership of the land in dispute. The respondents led evidence which the learned Judge believed, that they had originally given the land to the appel­lants and others on payment of tribute and that they had similarly allowed fishing pools on the land to be fished for a consideration; that in 1907 their people obtained a declaration in a Native Court suit, instituted by them against an ancestor of the appellants, that the lands therein called Achutu and Otuonya belonged to them and that in that same suit the appellants’ an­cestor admitted that Achutu at least belonged to the respondents; that in 1936 they sued two of the appellant’s people for fishing in a pool on the land and that the suit was settled on payment of £2 by the defendants in that case, and finally that they have “jujus” on the southern part of the land they call Achutu.


Against that evidence the appellants established that they were in pos­session of the land in dispute and had been in possession since the middle of the last century, and that in 1898 they sold to the Royal Niger Company the whole of the land in dispute bordering the Anambra Creek to a depth inland of 1,000 yards. They also led evidence of criminal proceedings taken by them in 1945 against persons whom the respondents had placed in charge of a fish­ing pool on the land. The appellants contended that the land in dispute in the 1907 case was not contained in the land in dispute in the present case and that the grant to the Royal Niger Company was conclusive evidence of ownership by them. The learned Judge considered all the evidence very carefully and came to the conclusion that some of the land in dispute in the present case had been the subject of the litigation in 1907. There was, I think, evidence from which he could so find. While I am not, therefore, prepared to hold that the respondents were not entitled to some portion of the land in dispute, I must part company with the learned Judge where he proceeds to demarcate that portion in the way he did. There was, in my view, no evidence to support the boundary line which he drew.


In the result this appeal succeeds. I am, however, of opinion that in the circumstances of this case the plaintiffs should have been non-suited, and I would, therefore, set aside the Judgment and enter an order for non-suit. The appellants will have the costs of the trial assessed at 100 guineas and of this appeal assessed at 75 guineas.


JIBOWU, AG. F.C.J.         I concur


ABBOTT, AG. F.J.: I concur.


Appeal Allowed



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