FOSTER-SUTTON, P.
In this case a civil summons was filed in the Native Court or Judicial Council of Edomani. The plaintiff sued for himself and on behalf of the Umuobodo family of Ifite Nkwelle.
Firstly, for a Declaration of Title to the land described in the civil summons; secondly, for £10 damages for trespass and for placing Maku wine tappers on the land; and, thirdly, for an injunction restraining the defendants from further trespassing upon the land in question. The suit was transferred to the Supreme Court by the District Officer under the provisions of section 25(1)(c) of the Native Courts’ Ordinance, 1933, which section has been re-enacted as paragraph (c) of sub-section (1) of section 28 of Chapter 142.
After the transfer of the suit pleadings were ordered, a Statement of Claim and Defendant filed, and the case came for trial before Manson, J., who gave judgment for the plaintiffs against the defendants for the Declaration of Title asked for, but dismissed their claim for £10 damages and for an injunction, and it is against the dismissal of the second and third headings of his claim that the plaintiff has appealed to this Court.
At the trial, the defendants did not dispute that the plaintiffs were titular owners of the land in respect of which the Declaration of Title was asked for, but they did dispute the claim for damages and for an injunction. The facts of the case are fully set out in the learned trial Judge’s judgment. No good purpose would, therefore, be served by a recapitulation of them by me.
The plaintiffs’ title to the land not being in dispute, the only issue the trial Judge had to determine was whether the defendants held the land under an ordinary farming tenancy as alleged by the plaintiff, or whether they held the land under a special form of native customary tenure. That form of tenure having arisen, according to the defendants, by reason of an agreement with their families entered into with the plaintiffs’ ancestors.
The learned trial Judge found as a fact that each defendant had for a long period of years been in occupation of the land in question under the “special agreement” to use his own words, alleged by them. He also found in favour of the defendants on another issue raised by the plaintiff regarding the nature of the tribute to be paid by the defendants in respect of their occupation of the land and he found as a fact that the defendants’ families had not failed to pay the tribute as alleged by the plaintiff, and that they have always been ready and willing to pay. The learned trial Judge concluded his findings of fact with the following, quoting from the penultimate paragraph of his judgment at page 51 of the Record:-
“The Agreement empowered the defendants to place tenants and tappers on the area granted to them without having to obtain the consent of the plaintiffs on each occasion and they have done so. The defendants, therefore, are not trespassers as alleged in paragraph 4 of the Statement of Claim and the plaintiffs are not entitled to an injunction.”
It seems to me clear that when the learned trial Judge used the word “Agreement” he was not using that word as a term of art but merely to describe this special form of tenure, customary in the particular area where the land in dispute is situate. That special form of tenure was proved by clear and cogent evidence offered on behalf of the defendants and that evidence was believed by the learned trial Judge. In my view, there was ample evidence before the learned trial Judge to justify the conclusions to which he came. It must not be lost to sight that the onus of proof was upon the plaintiff and the effect of the learned trial Judge’s judgment is that he failed to discharge the onus which was upon him. Appellant’s Counsel argued that the-evidence of witnesses 5 and 6 for the defence was inadmissible. We declined to allow him to argue that point: the evidence was not objected to, it was cross-examined and its admissibility was not put in question at any stage of the trial. It was also argued that exhibits 4, 5, 6 and 8 were inadmissible, not being relevant to any issue in the case. As we pointed out to Counsel for the appellants, no exception was taken to exhibits 5, 6 and 8 at the trial, but apart from that consideration, in my view, the evidence was clearly admissible under the provisions of sub-section (b) of section 12 of the Evidence Ordinance.
For the reasons I have given, I am of the opinion that this appeal should be dismissed with costs.
DE COMARMOND, AG. C. J., NIGERIA
I concur.
COUSSEY, J. A.
I concur.
Appeal dismissed.