Claim for declaration of title-Effect of failure to establish boundaries - .. desirability of making Plan of land in question part of judgment.

Held: The judgment of the Court below is bad in law for uncertainty, no Eastern boundary or complete Southern boundary having been established.

Baruwa v. Ogunshola and others (4 W.A .C.A. 159) followed. The facts are fully set out in the judgment.

Clinton for Appellants.

IV ells Palmer for Respondents.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIER.RA LEONE.

These proceedings originated in the Uruan Native Court in the Uyo Division whence they were transferred to the High Court. There they were consolidated with three other cases which were struck out on the 10th April, 1940.

The writ in the Native Court reads :--

" Plaintiffs' claim is for the determination of the extent of land of the lkpa people partly covered by the Supreme Court judgment dated the 16th of April, 1925, to ascertain the Head of group of people entitled to draw the rents thereby assessed and the revision of the shares if found necessary and for such other relief as the Court may seem fit to grant."

A Statement of Claim and Defence were filed followed by an amended Statement of Claim and a Defence thereto.

Plaintiffs' Counsel asked leave to amend the claim. This application does not appear to have been opposed and was granted as appears from the record of the proceedings in Court of the 4th April, 1940, which is in the following terms :-

" By leave of the Court the claim is amended to read: The Plaintiffs claim is for determination of the boundaries of their land known as Ikpa land, as distinct from lands common to the towns of the Uruan Tribe; and that they are entitled exclusively to the use of such land without interference from the defendants.

" The area claimed by plaintiffs is marked red on the plan filed herein: viz :-bounded on the North and East by Andam Stream, on the South by Ikpa Creek and the Trading beach known as Esuk Utatan (res judicata per Webber,j.Akpaka and others v. E. E. Archibong and others 1923) and on the West by lfia juju, and thence by the Ditch to the Irin Afia Stream.

" Pleadings filed on the claim, as unamended, withdrawn. Issue is now clear and Court requires no pleading. For service of amended claim."

In pursuance of this order the plaintiffs served a "writ of summons" which embodied this amendment. The trial then proceeded and judgment was delivered. The material part of that judgment is as follows :-

•• I find that the plaintiffs are entitled to the land claimed, as indicated in red on the plan A situate to the North, West and South of their village of Ikpa. To the East-on the North of the highroad-they are entitled up to the African Mission, beyond which the land belongs to Ikot Oku. Exactly where, east of the Mission, this boundary is, I have no evidence to determine, and I have no power to partition. The two vi1\ages should demarcate a boundary by agreement. To the south of the highroad, the plaintiffs are entitled to a1\ the land to Ikpa Creek, saving the land known as Esuk Utatan, and outlined in red and yellow in the plan Exhibit B .

•• Judgment for plaintiffs as against 1st, 2nd, 3rd, 4th and 5th defendants .

•• Costs to plaintiffs against 1st, 2nd, 3rd, 4th and 5th defendants 60 guineas. '

•• Costs to plaintiffs against 6th defendant in cases struck out 5 guineas."

Not only does the judgment fail to determine the boundary north of the highroad and east of the Mission but it is also impossible to ascertain with certainty the exact location of that part of the southern boundary which runs with the land known as Esuk Utatan. Counsel for the plaintiffs-respondents in this Court was asked to show on the plan the area for which he obtained judgment. He frankly stated that he could not do so and asked that the case be remitted to the Trial Judge to ascertain the exact land which .belonged to the plaintiffs.

The plaintiffs-respondents' claim as amended is, in effect, one for a declaration of title. In the case of Akinolu Barwwa v. Ogunshola and others (4 W.A.C.A. 159) this Court stated :-

•• Now it is the first duty of a plaintiff who comes to Court to claim a declaration of title to show the Court clearly the area of land to which his claim relates."

It results from the judgment of the Court below that the plaintiffs having failed to establish an eastern boundary or a complete southern boundary have failed to establish what lands they are entitled to. The judgment of the Court below, which is in effect a judgment for the plaintiffs for an undetermined area of land, cannot be maintained. The defendants-appellants therefore succeed on the first ground of appeal which is :--

" (1) The judgment of the Court is bad and wrong in law for uncertainty. The extent, area and dimensions of the land in respect of which the declaration of title was granted is unascertainable by reason of the fact that. the eastern boundary thereof was not fixed, defined or limited by the judgment."

     Counsel for appellants has contended that the amended claim is quite different from the original claim and is in effect a fresh action and that the plaintiffs should not have been allowed to shift their ground, as he says they have done.

In our opinion writs filed in Native Courts should not be examined microscopically. The writ in that Court starts off with the statement that the "plaintiffs claim is for the determination of the extent of land of the Ikpa people .... " It is true that it may be contended that the words that follow qualify and put a different meaning on these words.

The amendment which was made at the trial was made without objection and the Court proceeded to try the issue as to what lands belonged to the Ikpa people. We are satisfied that the Court was entitled in the circumstances to grant leave to amend the claim.

It was further contended that the Statement of Claim and the amended Statement of Claim made ,admissions that the land claimed by the plaintiffs was not their property but land owned in common by the Uruans and that the plaintiffs are bound by the admissions and they could not succeed in their claim as absolute owners to the land shown on the plan.

It certainly would appear that the Statement of Claim alleged that the plaintiffs owned land ih common with the Uruans and that, as the plaintiffs were dissatisfied with the attitude taken up by the defendants in respect of the plaintiffs rights under the judgment of Webber, J., of the 18th October, 1923, and another judgment of the 16th April, 1925 (which was not made an exhibit), the plaintiffs were asking the Court to award them land common to the Uruans in compensation.

It was contended on behalf of the defendants-appellants that the plaintiffs were bound by the admissions they made in their Statement of Claim and amended Statement of Claim and that the defendants were therefore entitled to judgment in this Court dismissing the claim.

It is not necessary for this Court to decide if the plaintiffs have in fact made any admissions that the land the subject matter of the action was in fact communal land of the Uruans and not the land of the plaintiffs as the Statement of Claim and amended Statement of Claim have been withdrawn and cannot be relied upon as admissions. In a note to Order 32, rule 1 of the Rules of the Supreme Court of England the law on the question of admissions in pleadings is stated as follows :-

"Facts alleged positively in a pleading must be taken as admissions by the party alleging them, or if such facts are admitted by the opposite party in his pleading or otherwise in writing (r. 1), they may be read as admissions against him, unless in either case such party be an infant, lunatic, or of unsound mind (see D.C.P. 466, 493; O. 19, r. 13). Admissions in an original pleading cannot be relied on after the pleading has been amended (ibid.)."

In our opinion the above principles apply to pleadings in this country.

In the proceedings which resulted in the judgment of Webber, J., of the 8th October, 1923, Chief AkPaka of GbikPe and others v. Archibong, a plan was put in showing the land in dispute. The plan showed that the boundaries set forth in the claim were not stated as accurately as they might have been.

We think it desirable to state that we consider that the practice followed by one Judge at least in this country of making the plan part of his judgment and causing it to be pasted in the judgment book is a practice which should be the rule in this country. The plan will, if the land claimed and awarded is clearly marked, be a permanent record and might obviate subsequent dispute in respect of the same land.

The appeal is allowed; the judgment of the Court below is set aside and the case remitted to the Court below for retrial by

,a different Judge. The defendants-appellants are awarded their costs in this Court assessed at 50 guineas. The costs of the first trial and the proceedings anterior thereto are to be in the discretion of the Court below which will doubtless take into account the whole circumstances including the fact that these costs have been enhanced by the abortive pleadings of the plaintiff.

ORDER.

It is further ordered that any sum paid by the appellants to the respondents in pursuance of the judgment of the Court below shall be refunded. The Court below to carry out.

FURTHER ORDER.

Nothing in the above judgment or order affects the judgment of the Court below in Suits No. C /30 /1936, C /31/1936 or C /20 /1936.