Coussey, J.A. This is an appeal from a judgment of the Supreme Court of the Onitsha Judicial Division in four consolidated suits transferred from a Native Court for hearing wherein the plaintiffs were awarded, in terms of their claim, a declaration of title to land described by them as Agunogu land and also damages for trespass and an injunction.
The actions were brought by the plaintiffs as representing the people or community of Awka while the defendants were sued as representing the several quarters of Isu-Obieli, Ifite, Igbolo and Achalla all of which quarters are included in the Enugu-Agidi people or community.
The plaintiffs claim to have acquired an area of land, including the land in dispute, which is verged orange on the plaintiffs' plan exhibit A, by conquest in war from the Norgu people many generations ago. They let out portions of the land to the defendants' people on farming tenancies and, in proof of this, they point to a judgment of the Supreme Court, exhibit C, dated 10th July, 1944, which was upheld on appeal, awarding them four years' tribute or rent as due by the defendant quarters for arrears for farming on Agunogu land by virtue of verbal tenancy agreements.
The defendants, on the other hand, claim to be owners of the land to the west of the Nwezi stream from its confluence with the Ohibia river to its source and thence in a southerly direction following an Ekpe or wall as far as a road to Amobia. They say they joined the Awka in defeating and driving out the Norgu people and that the land in dispute up to this line for to them as owners in the apportionment of lands after victory: They contend that the land on the eastern side only of this line is that in respect of which they entered into tenancy agreements with the plaintiffs and which is the subject of the judgment of Waddington, J., in 1944 (exhibit C).
The learned trial Judge held that the evidence preponderated in the plaintiffs' favour as owners of the land and that the defendants had been in possession only as farming tenants.
The main ground of appeal argued is that there was no evidence or sufficient evidence of the boundanes of the land claimed and complete lack of definition of the western boundary thereof, and further that there was such variance between the plaintiffs' plan and their evidence as to the situation of the defendants' villages Achalla, Igbolo and Urorbieri, that the Court should not have awarded a declaration of title or damages for trespass or an injunction.
It will be observed that the plaintiffs' plan, exhibit A, was first tendered in evidence by consent in the 1944 proceedings, exhibit C. It was not then proved or testified to by the surveyor, Mr. John.
It also appears that in those proceedings no detailed description of the land, other than its name, was given or was perhaps necessary as the claims' were for rent for tribute for farming on portions of Agunogu land, the precise location or area of which is not clear.
But in the present suits for declaration of title precise boundaries are necessary and, in particular, as to the western boundary of the area verged orange. It will be noticed at once that the villages Igbolo (Agburo) and Urorbieri are shown within the area claimed.
While the defendants contend that these villages as well as Achalla are ancestral villages and have fallen within the area of the plaintiffs' claim and declaration, the plaintiffs, on their plan, place Achalla outside to the west of the land. They say the defendants may have had huts within the area, erected for the purpose of seasonal farming, but that they have no permanent villages there.
The importance of this issue, upon which there is serious conflict, is obvious, for it is improbable on the one hand that the defendants would have permanent and ancestral villages on the land of another community, and it is equally improbable that the plaintiffs' land would extend to and include the permanent villages of another clan or community. The Court below did not have the advantage of the evidence of the plaintiffs' surveyor, but it is not without significance that as regards the western side of the land claimed and verged orange, only one natural feature, which is labelled indefinitely. as a tree, marks the limits of the plaintiffs' claim on that side.
The defendants' plan, exhibit B, appears to be a composite plan based on exhibit A.
In view of the conflict of evidence this Court acceded to the prayer of Mr. Onyiuke, counsel for the defendants-appellants, that further evidence be taken after inspection of the locality both as to the western boundary and the age of the villages mentioned. There has now been transmitted to this Court the testimony of Mr. Brian Gordon Smith, Acting Regional Land Officer, Eastern Region and Acting ; Permanent Secretary, Ministry of Lands and Survey, and of. Mr. Bennet Humphreys Brackenbury, District Officer, Enugu. The following facts emerge from this evidence.
1. As to the western boundary, Mr. Smith could not, from the plaintiffs' plan, exhibit A, identify the boundary on the land because no distances or bearings are shown and no agreed point of origin.
2. Mr. Brackenbury, in answer to the question, “Did the Awka people (plaintiffs) show you any boundary of the land they claimed “, answered, “No. At one point they said they were not claiming where we were standing, but they did not show a definite demarcation of where they ceased to claim.”
Without going into details it is sufficient to say that both witnesses testified that both plans are in their opinion inaccurate.
Both agreed that Achalla and Igbolo are established permanent villages but whether they were wholly within or partly within the area shown as the plaintiffs claim depended on the accuracy of the plans A and B as to which they were dissatisfied. The burden of proof is on the plaintiffs. The evidence of these two witnesses is disturbing and leads to the conclusion that the evidence in the case is in its nature so unsatisfactory that no declaration of title or other relief should be founded upon it. Once the western boundary as it is demarcated by the plaintiffs is rejected, as it must be, there is not and has never been any evidence as to where this boundary is in this connection the defendants' plan cannot be called in aid of the plaintiffs’ case, for it, too, is inaccurate; it would appear to be copied, as to area, from the plaintiffs’ plan.
In these circumstances the proper order is in my opinion one of non-suit of the plaintiffs. Such order will not preclude the plaintiffs from instituting a fresh action if so advised.
The appeal is accordingly allowed, the judgment of the Court below is set aside and a judgment of a non-suit is entered. The defendants will have the costs in the Court below to be taxed, exclusive of the cost of their survey and plan exhibit B, and costs of this appeal allowed at £92 5s. 3d.
Foster-Sutton, P. I concur. de Comarmond, Ag. C.J. I concur.
Appeal allowed; plaintiffs non-suited.