WEBBER, C.J., SIERRA LEONE.
In this case the plaintiff on behalf of himself and all the members of the Saogun family sought a declaration of title to all that piece or parcel of land situate and being at Pakodo Ikorodu Beach property of one Saogun deceased.
In the statement of claim filed by the original plaintiff, the claim for a declaration is based on the fact that the plaintiff is a descendant of Saogun deceased and is now the present head of the family and it refers to three judgments affecting the land.
The statement of claim does not set out how Saogun acquired the land, leaving the reference to these judgments as providing sufficient evidence of tradition in respect of the lands of the original descendant.
The defendant at the very outset of the case disputed the identity of the particular land in dispute with Pakodo Ikorodu Beach--they say the particular land in dispute is known as Ebute lIe Eletu, and in paragraph 5 the defendants submitted that the judgments referred to were not binding upon them and that they did not affect the present issue in dispute.
After hearing all the evidence in this case the learned Judge in the Court below gave a judgment in which his concluding remarks are as follows:-- “Finally I desire to say that I am quite aware that this “judgment will not be more helpful than the former “ones as to the actual extent of Ipakodo land, and in “particular as to its Northern boundary with “Ikorodu, but I find myself quite unable on the “evidence before me to come to any conclusion as to “what that boundary is”.
This question of the absence of evidence as to the extent of the land in respect of which the present land in dispute is alleged to be a part seems to me to be the fundamental obstacle to the plaintiff's success in this claim, and I entirely agree as to the learned Judge's conclusion referred to above. There is no evidence of the extent or boundary of Ipakodo land and the plan “A” produced. especially for this case is a skeleton plan showing no boundaries, indicating nowhere the extent of Ipakodo land and its relation or proximity to the land in dispute--it certainly shows what purports to be a promontory but there is no information before us from the surveyor or on the record which would go to show what is the land on the north of or adjoining it. I agree with the learned Judge in the Court below that the judgments purporting to support the plaintiff's case are not more helpful and we might select the judgment in the case of Kosoko v. Apena as the strongest of all; in so far as it attempts to show where Ipakodo actually extends. A reference to plan ‘B’ shows the extent of the land in dispute in that case--it was supposed to be Apena's land known as Ipakodo--the present land in dispute is not delineated thereon and it is problematical as to whether it actually adjoins it. No mention of this promontory was made to the surveyor at the time although a small portion of it was visible, namely a building at the extreme edge of it.
The judgments on which the plaintiff relies give us no assistance as to whether or not the promontory forms part of Ipakodo.
Apena v. da Silva, 1899, Kosoko v. Apena, 1918, Apena v. Balogun and Ors., 1923, Adedoyin v. Apena, 1927 and Johnson v. Ominu all these judgments relate to disputes on land by the main road, and in no case has there been any definite and decisive finding that lpakodo forms part of or adjoins the land the subject of this action.
The main ground of appeal (5) is that the judgment is against the weight of evidence. The absence of definite evidence of the locality of Ipakodo is alone sufficient to deprive the plaintiff of a grant of declaration of title. The evidence of prior occupation and of exercise of ownership has been dealt with by the learned Judge, who has found as a fact that the Powder Magazine was erected by Government with the Oloja's and not, as alleged by a witness for the plaintiff, with the Apena’s permission, and the learned Judge was entitled to hold that the evidence of prior occupation was not to be believed. What then has the plaintiff proved in support of his claim for a declaration of title to this land in dispute? Instead of asking the Court to say that the evidence for the plaintiff is of more weight, I think the Court would be right in saying that the evidence was insufficient to found such a claim. It is unnecessary to deal seriatim with the other grounds of appeal--in my opinion there is no substance in any one of them.
At the close of the arguments it was suggested by Counsel for the appellant that the appeal Court might direct a judgment of non-suit in order that the case might be retried de novo, and to this Counsel for the respondents strenuously objected. This is a claim for a declaration of title to land and the onus of proving ownership is on the plaintiff. The result depends on the strength of the plaintiff’s and not on the weakness of the defendants' case--it would in my opinion be wrong to hold that the evidence of the respondents in the Court below was unsatisfactory. I think the proper judgment in this case is to dismiss the appeal, but I think it necessary to vary the judgment and order that part beginning from the sixth line to the bottom, namely from the words “This judgment must not be taken as deciding anything. . . .” up to the words “building stand” and the word “and” thereafter be deleted on the ground that it purports to decide ownership of the promontory on which Ricketts Wharf and building stand, a decision as to which was not sought for by the respondents.
Appeal dismissed with costs.
DEANE, C.J., GOLD COAST. I Concur.
KINGDON, C.J., NIGERIA. I concur.