These are cross appeals from a judgment of the former High Court of the Calabar- Aba judicial Area dated the 11th December, 1944. The plain tiff who sued for himself and on behalf of the people of Amamong village claimed a declaration of title to land situate in Amamong and known as “Ndon Atai” , £25 damages for trespass, and an injunction from further trespass on the land. There was no counter-claim by the defendants, two of whom, Chief Awa Ukpong and Chief Edet Isuo, defended as representatives of the village Gommunity of Okopedi.
Though the parties were appellants and respondents respectively in the cross appeals it will be convenient to refer to them by their former designations as plaintiffs and defendants.
In his judgment the trial Judge: (a) made a declaration of title to part of the land claimed in favour of the plaintiff as against all the defendants; (b) awarded the plaintiff nominal damages assessed at 5s. for trespass as against, the eighth defendant; (c) granted an injunction to the plaintiff as prayed; (d) ordered that the eighth defendant be at liberty to remain in possession of that part of the land on which he had trespassed on condition that he paid 5s. annually to the Amamong people.
The plaintiff was the first to lodge an appeal against the judgment. Six grounds of appeal were filed on Ills behalf, but only the following two were argued. before us by Mr. Mbanefo:
“2. The line fixed by the Judge as defining the limits of the interests of the parties is too arbitrary to be just, and is therefore untenable; and having regard to his finding of fact as to the extreme difficulty of determining where one viliage’s rights begin and the other’s end, the Judge should have accepted the plaintiff-appellant’s evidence that the ELIANG STREAM from its source divides the two villages.
“3. In ordering that the eighth defendant should remain in possession of the part of the land upon which he had trespassed by paying the Amamong people an annual rent of 5s. the learned Judge wrongly exceeded the bounds of the claim that was before the Court.”,
The defendant”s grounds of appeal may be summarised as follows:-
(1) Seeing that the claim was never amended the Court below should have either granted a declaration in respect of the whole area claimed by plaintiff or none at all.
(2) As the Court below found that it could not ascertain the extent of the defendants’ land along the Eliang Stream it should not have fixed a boundary which was arbitrary and unsupported by the evidence.
(3) As the Court below found that the plaintiff’s ancestors settled on the land after and with the aid of the defendants’ ancestors there was a presumption that any virgin forest between the two villages belonged to Okopedi.
(5) The judgment is against the weight of the evidence.
Ground 4 was not pressed.
Although there was no counter-claim the case was virtually treated as one for the determination of the boundaries between the Amamong and Okopedi communities. The plans put in evidence, Exhibits 1 and “A” show that each village owns a considerable amount of land which is not in dispute and that the land in dispute comprises a tongue of land between the villages and a long adjoining , strip extending from south of Amamong north eastwards to a point on the west bank of the Eliang stream.
The boundary found by the trial Judge is a line indicated by him on Exhibit 1 running from the junction of the Eliang and the Esang streams to the point of the angle formed by the said tongue of land and the rest of the land in dispute.
The trial Judge heard witnesses called on both sides as to tradition, and as to past and present occupation, each village claiming to occupy the whole area. He also inspected the land, there he traversed the boundaries and saw farms, plantations, trees, jujus, sites of ancient habitations and of an old burial ground, and various natural features such as swamps and steams, all of which had been referred to in the evidence.
The plaintiff's grounds of appeal need not detain us long. With regard to ground 2, Mr. Mbanefo contended that the trial Judge having found that the Itiat Mbakara Juju stone belongs to Amamong, the boundary line laid downby the Judge should be adjusted so as to include the stone in the portion of the land adjudged to belong to the plaintiff’s village.
As the trial Judge did find this and as the Juju stone is only a short distance from the line drawn by him it might be possible if the judgment were to be affirmed substantially to adjust the line in accordance with Mr. Mbanefo’s sub- mission. At any rate on the Judge’s finding he ought to have drawn his line south of the stone.
As regards ground 3 it is also quite clear that the learned judge erred in granting the eighth defendant the right to occupy land trespassed upon by him seeing that he had not counter-claimed, and that no question as to rights of occupation independent of ownership was in issue at the trial. We now turn to the defendants’ grounds of appeal.
Ground 1 relates to a question of procedure, as indeed does ground 2. There is ample precedent for the course taken by the Judge in making a declaration in respect of part only of the land claimed by the plaintiff, and not non-suiting him or finding for the defendants because the plaintiff had not proved the whole of his claim.
In Kobina Foli v. ObengAkese (1), the Judicial Committee of the Privy Council considered the award of a Judge who had been appointed by the Full Court, Gold Coast, as arbitrator in a dispute between two chiefs as to which of them owned a large area of land. The learned arbitrator had drawn a straight line across the plan of the land, awarding one section to the plaintiff and the other to the defendant.
In this connection the Judicial Committee expressed the following opinion:-
“As regards excess of jurisdiction, the appellant maintained, in the first place, that in view of the terms of reference, it was only open to the arbitrator to award one or other of , two boundaries, viz., either the boundary line edged red or that edged green. Their Lordships agree with the learned Judges of the Court below in rejecting this contention, on the grounds stated by them. These two colored lines set but the extreme claims of the parties, but the matter in difference between them was as to the exact line of the boundary. In their Lordships’ opinion it was open to the arbitrator, if he found, as a matter of title that the existing boundary lay between the extremes, to make his award in accordance with such boundary.”
This concerned an arbitration and not an action, but having regard to the terms of reference which have been sufficiently indicated the principle underlying the Judicial Committee's decision would apply to an action.
In Kuma v. Kuma (2) and Akyin III v. Abaka II (3), the trial Judge followed the course approved by the Judicial Committee in the above appeal. Both judgments were upheld by the Judicial Committee, the point under consideration not being raised in either appeal.
In Inobimi v. Idiayuma (4), this Court substituted for a judgment of dismissal a declaration of title to part of the land claimed by the plaintiff-appellant.
This ground therefore fails.
With regard to ground 2 the defendants rely especially on the following passage in the judgment: “The evidence shows that the Okopedi owns land on the right bank of the Eliang stream, but how far along the stream upon that far side to the north their rights extend was wholly indeterminate upon the evidence before me.”
Mr. Anwan apparently assumes, and we think this reasonable, that the above reference to the right bank of the Eliang stream is a reference to the west bank. He asked why if the trial Judge did not know how far along the west bank Okopedi land extended, should he have held that the boundary ended on the east at the junction of the Esang and Eliang streams.
Mr. Anwan cited Ntoe Quat Ebenyam v. Chief Ayigo (5), In that case some of the boundaries of the parties had been settled by consent by the Assistant District Officer but he had not fixed the boundary between certain unexplored forest and swamp. The High Court of the Protectorate held that there being no existing boundary it had no power to demarcate one.
Mr. Anwan also cited Ntoe Ekpo Eta Ekpo v. Eta Eta Ita (6), in which it was held that in a claim for declaration of title the onus of proof is on the plaintiff. There are judgments of this Court to the same effect.
“In the case of Kobina Foli v. Obeng Akese (1) the Judicial Committee inter alia considered a question similar to the one raised on this ground of appeal. The judgment of the Committee contains this reference to it:-
“In the second place the appellant maintained that it appeared on the face of the award that the arbitrator had laid down a new boundary line, not as of existing title, but as a fair demarcation of boundary as between the parties. If this criticism can be justified, there can be no doubt that the award was beyond the scope of the reference, for the duty of the arbitrator was to ascertain a boundary existing as a matter of title, and not to lay down a new boundary, however fair that might appear in the light of the circumstances disclosed in the evidence.”
The Committee held upon examination of the evidence and the reasons for the award that having regard to the size of the area in dispute, about 100 square miles, and the comparatively small amount of satisfactory evidence upon which to determine an existing boundary, it was clear that the arbitrator had laid down a new boundary, based not on evidence but on consideration of what would be a fair division of the disputed area between the parties. The award was accordingly set aside.
In the present case the area in dispute is smaller, and the trial Judge had comparatively more evidence upon which to act. With reference to the boundary line drawn by him he used this language:-
“If I draw a line from the Oconosang tree situate at about point (9) in plan No.1 to the point where the right branch of the Esang stream meets Eliang I think I define as closely as is possible the limits of either party’s interests in the land in issue and that the area to the north of that line is property of Amamong and that to the south is that of Okopedi.”
Taken by itself this does not suggest that the Judge set out to lay down a new boundary based on consideration of what would be a fair division. On the other hand, as we have seen, he also stated that the extent of the Okopedi land along the bank of the Eliang stream was wholly indeterminate upon the evidence before him.
It has already been noticed that the Judge drew his boundary line north of the Mbakara Juju stone which he has found to be the property of Amamong. Whether this was done intentionally on the ground that in his opinion the said line effected an equitable division of the land generally, we cannot say.
The Court is forced to the conclusion that the Judge made a mistake in attempting to lay down a boundary, where no previous boundary had existed and each party relied for title on occupation as owner. In an area where there was swamp and forest this proved an impossible task for him to perform Within the limits of his jurisdiction.
As regards the claim for a declaration of title the Judge should have confined himself to ascertaining the area in respect of which the plaintiff had discharged his onus of proving title. If such area could be conveniently defined then the plaintiff would be entitled to an appropriate declaration, if not he should have been non-suited.
In all the circumstances the Court is of opinion that the proper order to make
is that both appeals be allowed that the judgment of the Court below be set aside and that the case be re-tried by the appropriate judicial division of the Supreme Court. The plaintiff to be at liberty to amend his claim as he thinks fit, and the defendants to be at liberty to counterclaim if they think fit.
The parties to bear their own costs of the appeal, the costs in the Court below to abide the event. Any costs paid in respect of the proceedings in the Court T below to be refunded.
Both appeals allowed and new trial ordered.