Appeal Court. 19 November l934.

Appeal from Supreme Court

Declaration of Boundary- Weight of Evidence.

Held: There was ample evidence to support the judgment of the trial Judge in favour of the respondent and the appeal is dismissed.

The facts are sufficiently set out in the judgment.

Wells-Palmer for the Appellant.

A. Soetan for the Respondent.

The following judgment was delivered:-

DEANE, C.J., GOLD COAST.

This is a matter in which the plaintiff on behalf of the Ogidi people sued the defendant on behalf of the Obunike people for a declaration that the boundary between the Ogidi and Obunike people is the old Awka road.

The matter first came before Butler Lloyd, J., who on a pre­liminary objection on 27th August, 1931, found that it was a res judicata and gave judgment for the defendant. The plaintiffs then appealed to the Full Court which on 14th March, 1933 held that the matter was not res judicata, the judgment of the Native Council of Ogidi in the matter of Arinze v. Ok eke Agbonwonu and another, on which the plea was founded, being ambiguous, and it not haying been proved that the subject matter of the suits was the same or that the parties were the same in the two suits-and made all order remitting the case for a new trial by a Judge who had not yet dealt with the matter.

The case then came before Graham Paul, J., who, having heard the parties and their witnesses, on 19th February, 1934 gave judgment for the plaintiffs for. the declaration asked viz: -that the old Awka-Onitsha road, as shown in the plan Exhibit A, was the boundary between Nkwelli Ogidj land and Obunike land.

Against that judgment the appeal has been brought.

A number of reasons of appeal were filed but learned Counsel for the defendants (the appellants) on opening his appeal abandoned all save the 6th ground of appeal, that the judgment was against the weight of evidence. As the other grounds were practically all of them attacks upon the judgment of the Full Court, which was the Appeal Court of the Colony before the institution of this Court. the judgment of which this Court would have no jurisdiction to set aside, he was of course fully justified in abandoning them. But although he felt no doubt that it was useless to attack the judgment of the :Full Court, or to argue further that the judgment of the Native Court acted as an estoppel by res judicata ,:0 that the plaintiffs could not succeed, his main argument against the present judgment was in fact to point out the evil results that were, he contended, likely to ensue if the judgment were upheld and litigants- ·were enabled under a change of name to raise anew· questions that had already been decided. This was, of course, argument on the assumption that the same question which had been litigated in the Native Court was again being litigated in this Court between the same parties or their privies-an assumption which in theory, the judgment of the Full Court precluded him from making. As it happens, however, the ease presented by the plaintiffs in the Court below, and supported by reliable testimony on their behalf, does not attack the judgment of the Native Court on which defendants rely. On the- contrary it accepts it: the contention being that the judgment of the Native Court was mis­understood by a District Officer, Mr. Gardiner, who in execution of it, as he thought, proceeded to put up pillars along the line of the new Awka road to mark the boundary between the two peoples, when in fact the boundary referred to in the judgment of the Native Court was the old Awka road. The learned trial .Judge accepted this contention and found for plaintiffs, being of opinion that this mistake of the District Officer had been the basis of all the subsequent litigation and fighting between the parties.

In coming to that conclusion he examined what. he referred to as the intrinsic evidence in the case in the light of a visit paid b~' himself to the loclls in quo, and there is one fact among many to which he refers which to my mind is very convincing-it is admitted, he says, that the particular piece of land on which the Ogidis were charged with trespassing in the case heard before the Native Court in 1914 was just over the boundary on the Obunike side: the Native Court in giving its reasons for the judgment against the Ogidis had said that the land was a long way from Ogidi anrl comparatively close to Obunike town-the new road actually ran through Ogidi town and therefore the description of the land as being a long way from Ogidi and comparatively close to Obunike town would have been quite inappropriate to describe land just over the new road-that rleRcription, however, he states obviously fits Iand just north of the old Awka road.

The learned Judge had moreover very reliable evidence to support the conviction at. which he arrived-there was especially the evidence of Archdeacon Rasden, the evidence of the Eze Ani of Ozeh, the evidence of Benjamin Amobi, and the evidence of Obianyu who had actually been the President of the Native Court when it decided the case of A.rinze v. Ok eke Agbonwonu and another.

Archdeacon Basden is a missionary who has been in Nigeria since September, 1900, knows the country of the Ogidis and Obunikes well and speaks the language of the people: he is a fellow of the Royal Geographical Society on whom a fellowship has been conferred in recognition of the geographical work which he has done; he made maps of the district when there were no roads, and his maps have been taken over by the Surveyor-General. He is, therefore, not only a man in the truthfulness of whose evidence the -fullest confidence may be felt, but also a witness of exceptional knowledge with regard to the matters about which he testifies..

He stated: "I know the boundary between Obunike and Nlnvelli Ogidi-l cross it several times a week. The he was a mark-a stump and a path many years ago before the old Awka road was made-then old Awka road was boundary. The original Awka road passed by old barracks-it followed the line of the original path I have referred to. It was absorbed in the old Awka road which was simply the o.ld foot path widened. The new Awka road is on quite a different principle-l never heard the new Awka road was a boundary. It runs right through Ogidi town-the old road went along the boundary.

I remember a portion of Nkwelli Ogidi had case with Obunike.

The District Officer after that. case market} the boundary on the new Awka road. It was a mistake to mark the boundary in the new road. The old Awka road is the correct one to be used as boundary-the effect of fixing the boundary on the new road was to deprive Ogidis of their homes."

All that Counsel for the appellants can find to say against this evidence is to ask why it was not given before?

He was not asked about this in the Court below but the answer to my mind is obvious-because Mr. Basden was not summoned before as a witness. One can quite understand that a missionary living and working among both tribes would not be eager to identify himself with one side in a controversy such as this, as he would inevitably have been held by the other side to be doing, if he hall interfered in the matter and would leave to the Courts the business of deciding the dispute-now that he has been subpoenaed he has given evidence.

Then there is the evidence of Ofodile, the Eze Ani of Ozeh­an old man apparently of over seventy years of age-who stated that he had known the old A wka road as the Nkwelli Ogidi boundary  all his life. He is an independent chief, not connected with either side, and the learned ,Judge believed his evidence-no argument has been addressed to us why he should not. have believed him.

Again there is the evidence of Benjamin Amobi, a chief and a member of the l,egislative Council; he is also a presiding chief in the Ogidi Native Court as his father before him was-a man therefore of considerable standing in the community and pre­sumably a reliable witness-his evidence supports the old Awka road as the boundary-the learned Judge accepted it.

Counsel for defendants asks us to reject his evidence as being unworthy of credence-he points out that this very gentleman was a member of an Ogidi Native Court in 1927, which 'convicted an Ogidi man at the instance of an Obunike man for trespass on the land in dispute, and asks if he was likely to do so knowing that the land was Ogidi land.

The proceedings referred to are exhibited as "]j''' -they showed that on 25th January, 1927, one Anierobi of Ogidi was chargeJ by Agba.puonwu of Ogbunike for "acting in a manner likely to cause a breach of the peace by trespassing into land thereby injured the complainants property valued about £15 wilfully."

From a statement made by the accused Ogidi man when called upon it appears that this was one of the many cases which were before the Courts from time to time in consequence of the mistake made by the District Officer in fixing the boundary.

" According to the boundary fixed," said the defendant, " we are in their land, but my people are not satisfied with such judgment, and we have now summoned Chief J. Ejiofo before the Judge and Lawyers but this was not heard yet." It is to be noticed that this was not a civil case of trespass, but a criminal charge of acting in a manner likely to cause a breach of the peace, and in my judgment the witness has given a reasonable explanation why he agreed to punish the defendant although no doubt he knew of this claim of the Ogidis to the land. He was asked about the matter at the trial and said: " We decided to punish the accused because he had gone and cut grass Itulu against District Officer's orders-we did not decide on Full Court judgment-in the 1927 case I didn't inspect the land. I don't know where the land in question in that case was-every time Obunike or Ogidi went to cut Itulu there was a riot, so District Officer forbade cutting."

The witness in fact took the view that if defendant even had a claim to the land which he was prosecuting before the Courts he was wrong in disobeying the orders of the District Officer issued to prevent the constant rioting and should not have gone on the land.

That this explanation is the truth, moreover, is apparent from a note in Exhibit" F " itself from which it appears that at the close of the evidence the Court" Adjourned till District Officer's opinion is required (sic:) into-Hearing resumed 27th January, 1927."

The District Officer's opinion is that the chiefs should give their " decision" -from which it is quite clear that disobedience to an order of the District Officer rather than trespass was the real issue dealt with by the Court.

Lastly, there was the evidence of Obianyu who, as I have said above, was the President of the Native Court which gave the judgment in 1914 on which the defendants rely. He stated: " The District Officer fixed boundary but not where we gave judgment in a different part altogether-he fixed  the boundary in the middle of Nkwelli and not old Awka road-he fixed boundary on wire road instead of on old Awka road-wire road is different: it is the new Awka road-(By Court)-the District Officer told us to go and wait on spot. where judgment given. We went on old Awka road and waited there at Ebenebe tree-in evening we heard people shouting-we were not present at the wire road when District. Officer fixed boundary there."

No argument was addressed to us why this witness should not have been believed.

In conclusion there is ample evidence to support the finding of the learned trial Judge--he heard the witnesses in the case and was in a much better position than is this Court to judge of their credibility-no sufficient reason has been advanced to us to induce us to set aside this judgment on the ground that. it. is against the weight of evidence.

The appeal must be dismissed with costs.

WEBBER, C.J., SIERRA LEONE.

I concur.

BUTLER-LLOYD, ACTING C.J.

I concur in the judgment which has just been read. It now appears that the whole of this long and expensive litigation was due to the mistake of a Political Officer in demarcating the boundary fixed by the Native Court in the case of 1914.

It is extremely regrettable that when the cross actions came before me in 1931 no hearing' on the merits took place. Both sides preferred to set up an estoppel based on the Native Court judgment and must share the responsibility for the delay and expense which has ensued.