Coussey, J.A. This is an appeal from the judgment of Manson, J., in a suit begun in the Native; Court of Osomari, Onitsha Province and transferred to the Supreme Court by order of the District Officer, Onitsha.
The plaintiffs are elders of Ogwu-Aniocha and they sued as representing the people of Ogwu-Aniocha. The defendants were sued as elders of Amamputu-Uli and as representing the people of Amamputu-Uli. The claim was for a declaration of title to land called ENUIGBO and damages for trespass thereon and an injunction. According to the statement of claim, portions of the land claimed are known as EYINGA and OGBUM. The area claimed by the plaintiffs is shown edged pink on a plan dated 22nd July, 1950, which was prepared by a surveyor employed by the plaintiffs and which was marked as Ex. 1.
The plaintiffs alleged as their title, use and enjoyment of the land from time immemorial, and that they had granted farming licences or tenancies to the defendants’ people of portions of the land and for which the defendants had paid rent and, as a further act of ownership, that in the year 1928 the plaintiffs had ledged a large area of land including that now in dispute to one Chief Onyeama of Ogwu Ikpelemili.
The defendants’ case was that the land in dispute is their ancestral property and that their ancestors granted land to the plaintiffs' ancestors upon which to settle but which is not part of the area in dispute. The defendants disputed the plaintiffs’ claim to having received rent from them as tenants, and the defendants asserted that the plaintiffs act in pledging the land to Chief Onyeama precipitated a land dispute between the parties which ended in an inquiry under the Inter -Tribal Boundaries Settlement Ordinance (Cap. 95). That inquiry was conducted by an Assistant District Officer, Mr. Beaumont, in 1939 and resulted in a boundary being fixed between Ogwu-Aniocha, the plaintiffs’ people, and Amamputu-Uli, the defendants' people.
At the trial in the present suit, the defendants maintained that the Beaumont boundary, which was confirmed by the Senior Resident on review is their correct boundary and the boundary line between the parties to this dispute. The facts found by the learned trial Judge are that Chief Onyeama, after he had taken the land from the plaintiffs as a pledge, put tenants on the land. When they learned of the pledge, the defendants at once objected and, in assertion of their rights, they burned down some of the tenants’ huts. In consequence, some of the defendants’ people were convicted by the Court of arson, and imprisoned, in the case of one of them, for seven years. This must have been a serious set- back for the defendants. They continued, however, to dispute the pledge of Chife Onyeama, and then actions were taken by the defendants and also by the plaintiffs and Chief Onyeama in the Osomari Native Court in respect of the land.
Those actions were withdrawn by the plaintiffs and defendants respectively for the purpose of the inquiry under the Inter-Tribal Boundaries Settlement Ordinance (Cap. 95). Finally the inquiry referred to was set up by Government the Ordinance. A survey and plan were made for the purpose of the inquiry a copy of the plan was before the trial Judge. Mr. Beaumont held an exhaustive investigation and perambulated the land in dispute and eventually reported his decision, fixing a boundary line, The learned trial Judge found that the boundary, as the plan made at the time shows, is the same as the western boundary line of the area in dispute as shown on the plaintiffs’ plan, Ex, 1.
Apart from acts of ownership of which the defendants gave evidence, they rely, as already stated, on the Beaumont decision as concluding the plaintiffs from maintaining this action.
The plaintiffs answer to this contention, and it is their main ground of appeal, is that the settlement was between Chief Onyeama, in his personal capacity, as the plaintiffs' pledgee on the one hand and the defendants’ tribe on the other hand, and that it was therefore not an inter-trirbal settlement within the meaning of sections 2 and 3 of Cap, 95 which contemplates a boundary settlement between two tribes and not between a tribe and an individual as Chief Onyeama was.
The situation had been considered by Mr. Beaumont at the time of the inquiry.
After observing that the parties were unusual for an inter-tribal boundary inquiry, he found and recorded that Chief Onyeama was representing the people of Ogwu-Aniocha and that he conducted the inquiry on those lines. It has been argued by Mr. Taylor that at the Beaumont inquiry Chief Onyeama is recorded as appearing for Ogwu, which is not the Ogwu-Aniocha tribe. If, however, Exhibit 2, the Pledge Note, is referred to at page 54 of the Record, it will be seen that the Ogwu-Aniocha people are there referred to as Ogwu, naming, that is to say, those represented by Chief Okereke and others. This point had also been raised as a ground of appeal at the Resident’s Review and he held that it was fully understood that Chief Onyeama was acting on behalf of the Ogwu-Aniocha people. Apart from this, the plaintiffs' own Chief, Chief Okereke, gave evidence at the inquiry and supported Onyeama’s claim as pledgee, a claim derived from the title set up by the plaintiffs, He, Chief Okereke, showed Beaumont the boundaries of the land the plaintiffs claimed, Further, before the trial Court, the plaintiffs witnesses admitted that the Ogwu-Aniocha people knew of the inquiry and that they were interested in the dispute.
The learned trial Judge declined to accept the submission of the plaintiffs that Chtef Okereke was not their Chief and did not represent them at the Inquiry. As Mr. Beaumont foresaw, the attitude of the plaintiffs at the inquiry was, “Let Chief Onyeama claim what he can; if he wins, we shall gain; if he loses, our title will not be affected.”
The nature and object of the inquiry must be regarded in order to ascertain who were really and substantially the contending parties at the time, There is no doubt that they were the Ogwu-Aniocha people and the Amamputu-UIi people, By abandoning the actions in the Native Court, the Ogwu-Aniochas assented to the inquiry and they elected to be represented by Chief Onyeama, their pledgee, In my opinion the learned Judge’s finding that the plaintiffs were aware of the settlement is supported by the evidence, They are on the record as the tribe concerned, It was unnecessary for them to be served as parties as it was not a suit, They took part in the inquiry, The settlement is conclusive and binding on them, if, on the other hand, it can be argued that they were not parties, the result would be unchanged.
The learned trial Judge found that the title of Chief Onyeama was identical with the plaintiffs' title. They were content to let Chief Onyeama fight their battle for them, but supporting him by deputing representatives to testify as to their title, They were parties in fact and the settlement binds them as they are presumed to have authorised their pledgee Onyeama to conduct the proceedings with their authority and consent.
If, then they were not parties, what was said by Cockburn, C,J., in Raden v, London Small Arms Co. (1) is in point, namely the doctrine is well known and recognised in Courts of law if that you stand by and allow another to do an act in a particular way which you could have prevented at the time, you must be held bound by the act so done with your acquiescence. The plaintiffs knew perfectly well that any order in the inquiry affecting Onyeamas title would equally effect theirs as the self-same right and title was substantially in issue. Therefore they cannot now be heard to complain that they were not parties- Re Lart, Wilkinson v. Blades (2) and Farquharson v. Seton (3). Another way to look at the matter is to ask: if Onyeama had succeeded, who would have taken the benefit fit of the Beaumont decision? Clearly it would have been the plaintiffs. One further point has been raised by the appellants, namely that the learned Judge dismissed the plaintiffs’ evidence of title in one sentence, namely that he rejected it as wholly unreliable and that the plaintiffs did not establish their Documentary evidence has been referred to, but when that evidence is examined it is clearly inconclusive and, in my view, the learned Judge was correct in holding that it is insufficient to support the declaration of title claimed by plaintiffs. In my opinion the appeal should be dismissed.
Foster-Sutton, P. I concur. Verity, C.J. I concur.
Appeal dismissed.