JELR 81485 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1955 15 WACA 63-66
Core Terms Beta
declaration of title
ibeku native court
assistant district officer
high court
learned trial judge
lord penzance
numerous cases
plan b
cases of compromise
concise oxford dictionary
earlier litigation
effect of this decision of the assistant district officer
evidence of his witness mr theophilus john
first action
high court of the protectorate
land avoiteyi
light of the plans
only effect of lord penzance
plan a
predecessor okori
present suit
respective parties
result of the case
review of the litigation
subject of a res judicata
supreme court of the aba judicial division
take arrangement
trial judge
uzo ubi
uzo ubi land

Coussey, J,A. The appellants as plaintiffs were unsuccessful in an action transferred from the Ibeku Native Court to the Supreme Court of the Aba Judicial Division wherein they claimed, on behalf of themselves and of the people of Umuwaya Ibeku, a declaration of title to, and an Injunction in respect of, land which they call “Uzo Ubi”.

The defendants-respondents were sued as representing the people of Eziama-Osa and Ngbaja Osa of Umuahia-Ibeku. They call the land Avoiteyi.

The learned trial Judge found that he could not accept the appellants' tradition upon which they founded their claim to the land. After reviewing the facts in the light of the plans before the Court; after considering some earlier litigation concerning the land and inspecting the area in dispute, the learned Judge held that he could not accept the appellants' evidence and he dismissed the claim.

In the hope that a review of the litigation may perhaps quieten this dispute which has persisted for over "twenty years, the first action to be noticed (although a case in 1920 and an Arbitrator's Award of 1937 will be referred to later) is Suit 103/37 in the Ibeku Native Court when the appellants or their predecessor Okori obtained judgment on the 20th October, 1937, against Munonye and others, the respondents' predecessors; for damages for trespass on Uzo Ubi land. Two members of the Native Court panel disagreed with this judgment. On appeal, the Assistant District Officer directed the plaintiff (appellants' predecessor) to institute an action for a declaration of title. Accordingly, Okorie Uwalaka commenced a suit for a declaration of title to Uzo-Ubi land against Munonye of Eziama Osa in the Ibeku Native Court. The action was transferred to the High Court of the Protectorate on the 14th July, 1938, as Suit 0/20/38. Pleadings were ordered, but the defendant Munonye died. The plaintiff was granted 60 day's extension of time to file a Statement of Claim and plan, but he was inactive in prosecuting the suit apparently because he could not discover the successor of Munonye. As the Statement of Claim had not been filed as ordered the suit was struck out by the Court at Owerrion the 24th April, 1939. No further action was taken for the time being by Okorie Uwalaka.

Meanwhile the people of Eziama-Osa, represented by Obonna Onyenobi had commenced an action; 0/13/1938 against Uwakwe (Echebiri) of Ugba as representing the people of Ugba. This action came before Waddington, J. in the High Court holden at Umuabia, that is to say within a short distance of the land in dispute. The claim was for a declaration of title and an Injunction as to lands known as Isiahi and Aviteyi as shown upon a plan to be produced. Counsel appeared for the respective parties.

On the 26th January, 1940-see Exhibit 6-the plaintiffs, the Eziama Osas, put in a plan A which had been before an Arbitrator in 1937 and the Ugbas put in a plan B which had been before the same Arbitrator and which showed an area of land which had been adjudged to the Ugbas in Provincial Court Suit of 1920. The Eziama Osas exhibited a third plan which was marked E by consent and which included in their claim, besides the land adjudged to the Ugbas as shown on their plan B, other lands both to the north and south of the Ugba land shown on Plan B. The following extract from the record of that case is important:

“Rhodes says defendants are not interested in that (i.e., the contiguous lands on the north and south) only in the land on Exhibit ‘B’ already awarded to them. Position therefore is that the land on Exhibit ‘B’ is the subject of a res judicata in the shape of the 1920 Provincial Court Suit and the Arbitrator's award of 1937. And-defendants (the Ugbas) have no interest in the land north and south of it on plaintiff's plan Exhibit ‘E”’. JUDGMENT By consent-Suit dismissed in so far as it concerns the land which was the subject of the 1920 Provincial Court suit and defined by the Arbitrator in 1937-shown on Exhibit ‘B’ (defendant's plan) and as the area shaded in blue pencil and edged with a blue pencil line (by myself) on plaintiffs' plan Exhibit ‘E'’

As regards the rest of the area shown on plaintiffs plan Exhibit ‘E’ in which defendants say they have no interest and to which they have never laid claim to any interest, judgment will be for the plaintiffs as against these defendants”.

The next action was by Nwosu (Akukwa) of the plaintiffs-appellants Umuwaya Amuzuku family against Ogbonna of Osa in the Ibeku Native Court for a declaration of title to Ugwu Nkwa land, where he was successful. It is admitted by the first Plaintiff in the present suit that Ugwu Nkwa is a portion of the land now in dispute.

On appeal, the decision in the case last mentioned was set aside by the Native Appeal Court by a majority judgment after inspecting the land.

The Native Appeal Court held that the area which the appellants' predecessor Nwosu was then claiming had been adjudged to the defendant (Respondents' predecessor) by the High Court (a reference to Waddington J's Judgment). This Native Appeal Court pointed out however that Nwosu was not present (party) to the proceedings before Waddington, J. between the Respondents' predecessor Ogbonna and the Ugbas. When this decision went on Review before the Assistant District Officer on the 15th May, 1945, he held, in effect, that although Nwosu was not a party to the action before Waddington, J. in 1940, as Nwosu had

admitted at the review that he was fully aware of the facts of the case at the time and knew that his land was included in that claimed by Ogbonna against the Ugba people and he therefore had the opportunity to give evidence in the High Court case, but failed to do so, he was now estopped from establishing his claim.

It is necessary to examine the effect of this decision of the Assistant District Officer.

Early in cross-examination, the first plaintiff Okorie Uwalaka said in the present action “Ugba and my people Umuwaya are Afarata people. Ugba and Ogbonna had a case in 1938. I knew about the dispute. The land claimed between is Avoiteyi.” To correct this, he said later that the Avoiteyi land claimed in the 1938 case, the case that was settled before Waddington, J., on the 26th January, 1940 is not identical with the land claimed as Uzo-Ubi in the suit the subject of the present appeal, but there is abundant evidence both in other answers of this plaintiff-appellant and in the evidence of his witness Mr Theophilus John, a surveyor who had made the plan in this and earlier suits, to show that the Uzo-Ubi land now claimed by the appellants is the identical Avoiteyi land to the North, which, in the action before Waddington, J., the Ugbas had disclaimed interest in and which had been adjudged to the Respondents.

There can be no doubt that Nwosu Akukwa was vitally interested in the result of the case before Waddington, J., and that the Court would have joined him as a defendant with the Ugbas, if an application for joinder had been made.

It has been repeatedly held by this Court and the Courts in England that if a person was content to stand by and see his battle fought by somebody else in the same interest, he is bound by the result and should not be allowed to re-open the case. As Lord Penzance said in Wytcherley v. Andrews 25 L.T.R. 134 at p. 135 “That principle is founded on justice and common sense, and is in numerous cases acted upon in the Court of Chancery, where, if the persons interested are too numerous all to be made parties, one or two of a class are allowed to represent their fellows”. But Lord Penzance went on to say that this rule has never been applied to cases of compromise. “It is one thing to say that a person who stands by and lets another fight his battle, must be bound by the result of the contest; and it is quite another thing to say that, without any notice that there was going to be a compromise, and without any knowledge that the suit was not proceeding to its natural end, he must nevertheless be bound by an agreement which the parties to the suit may choose to enter into”. It is a question of some difficulty in this case, whether the proceedings in the High Court before Waddington, J., resulted in a compromise so that the present appellants are not bound thereby.

According to the Concise Oxford Dictionary “Compromise” is settlement of a dispute by mutual concession; adjustment of conflicting opinions, etc., by modification of each.

“A compromise takes place when there is a question of doubt, and the parties agree not to try it out, but to settle it between themselves by a give-and-take arrangement (per Kay, I..J., in Huddersfield Bank v. Lister (1895) 2 Ch. 285.

Before Waddington, J., the record establishes that three areas of land were in issue. The most northerly of the three was Avoiteyi land. To the south of, and contiguous to Avoiteyi was Uzo-Ubi land and to the south of, and contiguous to Uzo-Ubi, was Isiahi land. The defendants, the Ugbas, disclaimed interest in Avoiteyi and Isiahi whilst they relied upon earlier proceedings as res judicata in respect of Uzo-Ubi land. Thereupon, by consent, judgment was .entered upon those terms. Strictly this was not, in my opinion, a compromise, but a recognition by the respective parties of the true position of their conflicting claims and resulting in a judgment by consent. But it might, not without reason, be said that the appellants' predecessor Nwosu had no notice or knowledge that the suit was going to be settled and that it would not proceed to its natural end. On balance it is, perhaps, wise to hold, in the particular circumstances of this case, that Nwosu was not bound by the agreement which the parties chose to enter into in that suit.

As was said by Younger, J., in King, In re Jackson v. Attorney-General (1917) 2 Ch. 420 at p. 431 “The only effect of Lord Penzance's principle is that a person not bound by a compromise, who is dissatisfied with the act of the Court which follows thereon, is at liberty to institute fresh proceedings and by the strength of his own case to have that act of the Court recalled.”

In the present case, the appellants’ predecessor, did not accept the result of the action before Waddington, J. He sued the respondents' predecessor Ogbonna in respect of a portion of the land now in dispute. When on Review the Assistant District Officer found against him on the doctrine of equitable estoppel, he and his people continued to disturb the people of Eziamah' and Ngbaja Osa in their occupation of Avoiteyi land. This resulted in the suit A/107/1949 wherein the people of Umuwaya put their title to the land in issue claiming a declaration of title thereto (but calling it Uzo-Ubi land) and were non-suited on the 31st October, 19S1-Exhibit 13.

The cross-action of the Eziamah Osah people against the Umuwaya people for damages for trespass in respect of the same land, suit A/105/1949 was, as its number implies, instituted before the suit immediately above referred to. It was to await the result of that suit. The Umuwayas again put their title in issue but damages for trespass were against them on the 12th March, 19S2-Exhibit 9. It is to be noted that the plan Exhibit S in the proceedings now the subject of appeal, is the plan Exhibit B in suit A/105/1949 to which the Surveyor Mr Theophilus John testified.

There followed the suit now under appeal in which the Umuwayas again unsuccessfully claimed a declaration of title against the Eziama Osa people. The learned trial Judge did not decide this claim on the narrow ground of equitable estoppel.

The plaintiffs-appellants assumed the burden to establish affirmatively that they were entitled to the declaration of title claimed. Upon a review of all the evidence, the learned trial Judge found that the appellants had given the label Uzo-Ubi land to what was, in fact, Avoiteyi land and he aptly observed that “transposition such as this does not normally occur in nature with respect to land”. Upon the facts the learned Judge held, in my opinion correctly, that the appellants had failed to discharge the burden they had undertaken.

Mr Ibekwe's main argument for the appellants is that they are always met by the Wadding- ton consent judgment, to which they were not parties, when in fact the appellants had at that time instituted a separate action concerning the land. It is in deference to this submission that this judgment is of perhaps inordinate length. It has been necessary to demonstrate that the appellants have, throughout, by their acts considered themselves unaffected by that judgment. They did not however appeal from the judgments in suits A/107/1949 and A/105/ 1949 whilst in the action now appealed from where issues of fact were squarely contested, the learned Judge was, in my opinion, right on the evidence in dismissing the claim.

I would therefore disallow this appeal with costs.

Foster Sutton, P. I concur. de Comarmond, Ag. C.J. I concur.

Appeal dismissed.