IN THE SUPREME COURT OF NIGERIA
On Tuesday, the 19th day of February 1963
ANACHUNA NWOKAFOR & 5 ORS .................................................APPELLANTS
NWANKWO UDEGBE & 4 ORS .................................................. RESPONDENTS
Appeal by defendants:
The crux in this case was whether the plaintiffs were right in alleging that the land north of the Nkissi stream was theirs as far as a certain line of trees. The defendants alleged that in 1908 a District Officer named Douglas, in proceedings between them and a sister family of the plaintiffs' family, awarded the land to them as far as that line; the award (insufficiently proved) was, in the Judge's view, in any case not binding on the plaintiffs either as res judicata or on the ground of estoppel by conduct. The defendants alleged that since 1908 they had been using (the land in dispute. The Judge said the evidence for both sides was unreliable, that for the defendants more so, but on user he regarded as "a little more probable" the plaintiffs' case that the defendants first crossed the stream six years before the trial, and "in the absence of better evidence" it seemed to him that there were "some grounds" for accepting the plaintiffs' case.
The award was not binding on the plaintiffs rather because it was not shown that the District Officer was acting in a judicial capacity or as a judicial arbitrator: but the Judge, having regard to his view of the plaintiffs' case, should not have granted them a declaration of title, but dismissed their claim.
Kodilinye v. Odu (1935) 2 W.A.C.A.336, followed.
Nwakuche v., Azubuike (1955) 15 W.A.C.A.46 and
Bueze v. Nwakuche (1959) 4 FSC 262, distinguished.
As the defendants' title had not been directly in issue, the dismissal of the plaintiffs' claim did not mean that the land belonged to the defendants, or that the defendants had established that their land extended to the line of trees at any part of that line.
Appeal allowed; action dismissed.
(Editor's Note: The plaintiffs appealed to the Privy Council; their; Appeal was dismissed on 14th July, 1964, on grounds similar to those which impelled the Federal Supreme Court to reverse the High Court Judgment(see post).
The Privy Council cites the Kodilinye case with approval.)
APPEAL from the High Court of Eastern Nigeria.
C. Ikpeazu, Q.C. (with him F.C. Of odile) for the Appellants.
A.O. Mbanefo for the Respondents.
Brett, Ag. C.J.F.:-This was a representative action, originally brought in the Udoka Native Court, in which the plaintiffs, for themselves and others of Umuanugwo Quarters of Ifite-Ukpo, sued the defendants, for themselves and others of Uruowelle Quarter of Umudioka, claiming a declaration of title to a piece of land called "Agbagolu" or "Mpiti", and damages for trespass.
The land in question is bounded to the East by a motor road constructed by the plaintiffs and defendants, to the South by the Nkissi stream, and to the West by the Okpuaha stream. To the North there seems to be no visible boundary, and both parties claim to own the land stretching northward from the land in dispute to a line of trees described by the defendants as the "Douglas boundary", to which I shall refer later. The case for the plaintiffs is that the defendants own no land North of the Nkissi stream, and that the land East of the motor road and North of the Nkissi stream belongs to the people of Awka, which is another sub-family of lfite-Ukpo. The case for the defendants is that in 1908 there were proceedings between themselves and the people of Awka, and that a District Officer named Douglas awarded them title to a large area of land North of the Nkissi stream, of which the area now in dispute forms the South-Western corner, and which is bounded to the East, South and West by the Onyekwena, Nkissi and Okpuaha stream respectively and to the North by a line of boundary trees, which they call the "Douglas boundary". Awka being a sub-family of the same community as the plaintiffs, the defendants submit that the award made by Douglas is binding on the plaintiffs.
The second plaintiff gave evidence in the High Court, and in addition to the surveyor the plaintiffs called one witness from Awka and one from Umunya, the community owning the land to the West of the Okpuaha stream. For the defence the first defendant gave evidence and in addition to the surveyor and witnesses as to the Douglas award four supposedly independent witnesses were called.
The trial Judge found the witnesses on both sides unreliable, and regarded those called for the defence as even less reliable than those called for the plaintiffs. The original of the Douglas award had not been traced and the evidence with regard to it was entirely oral. The judge was of the opinion that the defendants had not called evidence of a sufficiently thorough search for the original to entitle them to give oral evidence of the award, but he nevertheless admitted and considered the oral evidence. The conclusion to which he came was that it was not established that the "Douglas boundary" was where the defendants said it was and that in any event the plaintiffs were not bound by it since they were not parties to the proceedings and it was not shown that they came within the class of persons who, though not parties to a suit, may nevertheless be bound by its result. I would agree that the award did not constitute res judicata against the plaintiffs, though I myself would rest this decision not so much on the grounds relied on by the trial Judge as on the fact that it was not shown in what capacity Douglas was acting when he made the award. On the evidence he might either have been acting judicially, or as an arbitrator, or purely administratively and unless he was acting judicially or as a judicial arbitrator his award cannot create a formal estoppel.
On the other hand, the judge, who had visited the land, was satisfied that what the defendants asserted was the "Douglas boundary" did consist of a distinctive line of trees, and he did not regard the plaintiffs' denial that it constituted a boundary at all as a satisfactory explanation; he only added that its mere existence did not establish it as the "Douglas boundary".
As regards user and occupation of the land the judge described the plaintiffs' story, that the defendants first crossed the Nkissi stream six years before the case was tried as "a little more probable" than the defendants' claim to have been in occupation since 1908. He concluded by saying:-
"The line of trees, North of the land in dispute in exhibit 2(a)" (the defendants' plan) "may be a boundary with the Awka people, it is not shown that it forms a boundary with the plaintiffs.
There seems in the absence of any better evidence some grounds for saying that the Northern Boundary of the defendants with the plaintiffs is the Nkissi stream.
The plaintiffs therefore are entitled to the declaration sought."
With respect, it is not enough for a plaintiff asking for a declaration of title to set up a case which is "a little more probable" than the case put forward by the defence, or of which the highest that can be said is that "in the absence of better evidence" there are "some grounds" for accepting it. This is established by a long line of decisions of which the correctness has, so far as I know, never been seriously challenged. The trial Judge gave convincing reasons for regarding the witnesses for the plaintiffs as unreliable, and on the written record I am not disposed to allow any greater credit to the case for the plaintiffs than he did. I would therefore set aside the judgment in favour of the plaintiffs. It remains to consider what judgment it would be proper to enter in its place. The decision in Kodilinye v. Odu (1935) 2 W.A.C.A. 336, is authority for saying that the proper judgment when a plaintiff claiming a declaration of title fails to prove his case is one dismissing the claim, and the grounds for distinguishing that case which were held to exist in such cases as Nwakuche v. Azubuike (1955) 15 W.A.C.A. 46, and Bueze v. Nwakuche (1959) 4 FSC 262 are not present here. I can see no ground which would justify this Court in making any order other than one dismissing the plaintiffs' claim. "Wind-dispersed and vain my words may be", but I would add that the defendants' title has not been directly in issue in this case, and that in dismissing the plaintiffs' claim we shall in no sense be holding that the land belongs to the defendants, or that the defendants have established that their land extends to what they call the "Douglas boundary" at any part of that boundary.
I would allow the appeal, set aside the judgment of the court below with the order for costs, and enter judgment dismissing the claim, with costs in the court below assessed at 100 guineas and cost in this Court assessed at 55 guineas.
TAYLOR, F.J.:- I concur.
COKER, Ag. F.J.:- I concur.