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Against that judgment the Defendant-Appellant has appealed to this court-

The first five grounds of appeal deal with the contention that the Court below wrongly received in evidence, and wrongly based its judgment upon, Exhibit E.U.6 which was a certified copy of the proceedings and judgment in the Native Court in the transferred case. This copy proceedings was tendered in evidence by Counsel for the Plaintiff at the close of the Defendant's case and was admitted by the Court below in spite of the suggestion by Counsel for the Defendant that it was then too late.

The statutory position of the High Court in dealing with a case transferred to it after judgment is- or rather at the time of this transfer, was--highly special. The special provision was added by the Native Courts Amendment Ordinance (No. 16 of 1936) and is as follows :- .

•• (9) Where any cause or matter is transferred to a Native Court or to a Magistrate's Court or to the High Court under subsection (I), paragraph (c). such court may take any course with regard to the cause or matter which it considers justice requires. The power conferred by this subsection includes the power to increase a sentence, but this subsection shall not be deemed to empower the court to try a person for an offence of which he has been acquitted ".

The terms of this empowering subsection clearly give very wide general powers to the Court of transfer. They give the Court the power-if not the duty-to scrutinise the record of evidence and judgment in the Native Court. The mere order of transfer does not itself set aside the judgment of the Native Court. It is for the Court of transfer to decide whether the judgment of the Native Court should stand or be set aside, or be amended. In this case the High Court, before deciding upon any of these alternatives, elected to order pleadings and to hear such evidence as the' parties chose to put before it. But that did not preclude the Court from scrutinising the record of the Native Court proceedings. and that the Court scrutinised the proceedings as an Exhibit tendered by one side and not exproprio motu cotilc make no material difference.

For these reasons there is no substance in the first five grounds of appeal. .

The main point however in the able argument addressed to this Court by Counsel for the Appellant was under the 6th ground of appeal that the Court below was wrong in law in rejecting the Defendant-Appellant's plea that the subject matter in issue was res judicata by virtue of the various decisions and judgments put in evidence by the Defendant-Appellant. That point requires careful investigation ..

The Plaintiffs' claim in this case was-

" Declaration of rights or title as a descendant of Nya Nya and COUSIN to Great Duke Ephraim to farm, collect palm nuts, etc. on the portion of land known as Ikot Nya Nya situate at Akpabuyo value about £50. J

" (2) Ten pounds damages for wrongfully demarcating boundary . the said land without the knowledge and consent of the Plaintiff about 1929

This claim was elaborated in the Statement of Claim filed b the Plaintiff. Paragraphs 2 and 3 of which read as follows :-

" 2. The land in dispute was the property of the late Efiom Edem, is now the property of his blood relatives occupied by them and is also occupied and enjoyed by the erstwhile slaves and other descendants of the said Efio Edem.

" 3. The plaintiff and his predecessors in title have been in possession and occupation and have been using the said land for all purposes since it was first settled on by them during the lifetime of Efiom Edem without Iet or hindrance by any."

A perusal of the record of evidence given in the Court below makes quite clear the following propositions as regards the respectively claims of the parties in that Court :-

(1) That both parties agreed that each has a piece of land] over which each respectively has the exclusive right to farm and cut palm nuts.

(2) That these pieces of land adjoin.

(3) That the only substantial issue of fact in the case which is the correct boundary between the parties the Plaintiffs claiming that it is the road or path leading to Idebe and known as " Namberi " and the Defendant claiming that it is a series of Okano trees That is the issue in regard to which the Defendant pleaded Res' judicata both in the Native Court and in the High Court.

According to the learned Judge in the Court below the issue which he had to try was "whether Plaintiffs or Defendant are entitled to farm or collect palm nuts on the land the subject matte of this action." That is accurate enough provided it is clear that the land in dispute is the land between the rival boundaries claimed by the parties. But he is on less sure ground when he says late in his judgment "For the plaintiffs to succeed in their claim the onus is on them to prove acts of ownership extending over sufficient length of time numerous and positive enough to warrant the inference that they are the exclusive owners." The language of this passage is borrowed from the judgment of the Full Court in the case Ekpo v. Ita (11 N.L.R. 68) but it is only appropriate when the claim is, as it was in that case, for a declaration of tin to ownership. But in his next sentence, which reads" The evidence in the case is typical of that usually to be found in a Calabar Ian case, one set of witnesses swearing that the path leading from Ideb is the proper boundary and another set that the Okono trees are the boundary," the Judge makes it clear that the real issue was he boundary between the parties. It must also be borne in mind that the Defendant does not base his defence on ownership but long possession laches and estoppel.

In support of his plea of Res Judicata the Defendant relied upon exhibits E U.3 and .U.5. E.U.3 is a Judgment of the Provincial Court in 1921 and E.U.5 is a judgment of the Native Paul, C.]]. Court of Akpabuyo of 1929. The Native Court in this case rejected the Defendant's plea of Res Judicata stating in their judgment :-

"The Provincial Court judgment in Suit No. R.25/1932 of 2nd November, 1933 tendered by Plaintiff is a valid document which renders all previous Court judgments in possession of defendant null and void ".

It is clear from the terms of the Provincial Court judgment t in question (Ex. E.U.2) that this statement by the Native Court was just nonsense and Counsel for the Respondent dic1 not attempt to defend it in this Court.

It is a curious thing that the learned .Judge in the Court below in his judgment made no reference whatever to the plea of Res Judicata although it was clearly brought to his notice in the Statement of Defence and in the opening of Counsel for the Defendant, and formed the main part of the argument for the Defendant at the close of the case.

Moreover one of the grounds upon which the transfer from the Native Court was ordered was "The claim in question has already been before the Provincial Court on two occasions and the Native Court is not qualified to assess the. value of the decisions involved.

The learned .Judge in the course of his judgment said:- .

I have carefully perused the proceedings findings and judgment of the Akpabuyo Native Court and I am satisfied that there was evidence to support their findings and their judgment and I can see no reason for disturbing it ".

It is impossible to avoid the conclusion that the learned Judge must have accepted the essential part of the Native Court " Finding" which I have quoted, namely that the Court judgments upon which the Defendant relied were null and void. It is clear that the learned Judge was wrong in accepting that finding. This Court cannot accept it and must examine on its merits the Defendant's plea of Res Judicata.

The 1921 judgment founded upon is attacked by Respondent's Counsel on the ground that it related to other land than that now in dispute but his own witness Efiong Okon Udono who comes from Ikot Nya Nya and was present in Court at the 1921 case admitted in cross-examination in the present case that "the land now in dispute was a portion of the land claimed by my people in 1921." An examination of the claim and evidence in the 1921 case (even Without the plan in that case which has been lost) makes it clear that it related to the land now in dispute. The claim in the 1921 case was by the present first Plaintiff-Respondent's father who was the original Plaintiff in the present case. The claim was for a " Declaration of title for certain land in the neighbourhood of Ikot Nakanda called Ikot Nya." The finding of the Court was " The strip of land extending from the Olcono tree stump (marked C on the map) in an easterly direction belongs to Nakanda family," and the claim was dismissed. It is clear that it was decided in that case that the bounc1ary between the parties was that now claimed by the Defendant, and that the real question in issue, as now, was" what is the boundary?" ,It cannot be disputed that, if the Plaintiffs-Respondents' present claim were for a declaration of title, the 1921 judgment would constitute Res Judicata.

But the present claim is in its terms something short of a claim for a declaration of title. It is a claim only for a "declaration of rights or title as a descendant of Nya Nya and cousin to Great Duke Ephraim to farm, collect palm nuts, etc. on the portion, of land known as Ikot Nya Nya at Akpabuyo." There was a further claim of damages for wrongfully demarcating boundary but that was dropped in the Court below.

While the present claim is not expressly for a declaration of title it is clear upon the evidence for the Plaintiffs that the whole basis of the present claim is precisely the same as the basis of the claim in the 1921 case, that is to say that the boundary between the parties is the Idebe road 'and that the land or what the Plaintiffs contend is their side of the boundary is the property of the Plaintiffs by inheritance from Efiom Edem. Paragraphs 2 and 3 of the Statement of Claim in the present case already quoted also make it clear that the present claim is being made by the Plaintiffs as the titular owners of the land. Their title to this land was put in issue in the 1921 case and their claim to title was dismissed. They cannot now be allowed to claim rights as a consequence or as a part or incident of a title their claim to which as against the same Defendant. was dismissed in the 1921 case. In our opinion the plea of res judicata in respect of the 1921 case must be upheld.

It must also be upheld in respect of the 1929 case. That was a claim brought by the present Defendant against the father of the present first Plaintiff. The claim was for "£20 damages for pledging the Plaintiffs Palm Bush to one look Okon Abasi and Ok911 Efio Nkune without permission since February, 1929." There is no doubt whatever that this 1929 case related to the land now in dispute. The present Plaintiff in his evidence in the present case said "In 1929 there was an action between my father and present Defendant in respect to the same land in this action. My father pledged land without consulting Nakanda people." Also the Plaintiffs' witness Efiong Okon U~ono in the present case said " I know Ibok Okon Abasi I know that the head of my clan pledged land to him with palm trees upon it. The said land he pledged is the land now in dispute and in consequence thereof the Nakandas took action against the Nya Nya. I think it was to cancel the mortgage. The Nakandas said the land belonged to them. It was in 1929 ".

The proceedings and judgment in the 1929 case are in evidence in the present case-Ex. E.U.5. The basis of that judgment was that there was a boundary separating Ikot Ny~ Nya and Ikot Nakanda. This had been denied by the Defendant in the 1929 case but the Native Court members inspected the land for themselves and they were satisfied that there was a boundary on the land and that the boundary mark (Okono trees) was" destroyed by a person from defendant side (Okon Abasi)." Judgment was given for Plaintiff (pr:>sent Defendant) accordingly. The basis of the judgment of the Native~ Court in 1929 was that the land in question was land of which the Plaintiff (present Defendant) was entitled to the exclusive use. The Native Court in 1929 rejected the case put forward by the Defendant (present Plaintiff) that Ikot Nya Nya and lkot Nakanda had the right to the joint use of one piece of land belonging to Efiom Edem's descendants, and held that they had separate pieces of land with an Okono tree boundary which the Ikot Nya Nya people had fraudulently destroyed for the purpose of their case.

There can be no doubt that in the present case the Plaintiffs are trying to establish a claim which is absolutely inconsistent with the decisions in 1921 and 1929 and we held that they were estopped from doing so. The present Defendant's case has been consistent throughout that there was a boundary and that it was marked by the Okono trees. In sharp contrast to this, Counsel for Plaintiffs-Respondents has not been able to make up his mind even in this Court on what ground to take his stand. In his opening address in the Court below he began by saying" Defendants have trespassed and are cutting palm kernels on our land," and the 1st Plaintiff, who is a school teacher and gave his evidence in English, said" In the plan marked Ex. E.U.l it is the dotted line demarcating the Ikot Nakanda's land from that trespassed upon, running from Idebe to the Atimbo beach road." But in this Court Counsel contended that one reason why the 1921 and 1929 judgments do not constitute res judicata is that the issues were different. In 1921 a declaration of title was claimed, but (Counsel explained) in the present case the Plaintiffs carefully avoided asking for a declaration of title. They asked only for a declaration of their right to farm and cut palm nuts irrespective of whether the land belonged to the Plaintiffs or the Defendant. Asked how he reconciled this with the use of the word " trespassed," Couusel was unable to explain it, but stated that" both parties are agreed that there is a boundary between their farming rights. We don't say the other side have no right to farm on our side." And being pressed again as to the significance of the use of the word " trespassed," Counsel said" Well I will accept that Plaintiff put it that way, but that does not mean that he is asking for exclusive rights, or for declaration of title." Counsel then went on to submit that the effect of the judgment in the Court below" is that each of the parties have equal rights to farm and cut palm fruit on the land in dispute." He was then asked how he reconciled this view of the effect of the judgment with the passage in the judgment already quoted .. For the Plaintiffs to succeed in their claim the onus is upon them to prove acts of ownership extending over a sufficient length of time numerous and positive enough to warrant the inference that they are the exclusive owners." In reply, Counsel contended that the judgment given was not inconsistent with that passage .. because the Judge came to the conclusion that we had exclusive rights to the land." It is obvious that even in this Court, he was in two minds whether to claim exclusive rights or to pin his faith to equal rights only. Perhaps it would not be unfair to express the claim in this way" We do not claim exclusive rights because we know that we cannot support that claim, but we do claim to be awarded joint rights because we are entitled to exclusive rights ".

The learned Judge in the Court below quoted a passage from the judgment of Lord Atkin in the Privy Council in the case of Abakah Nthah versus Anguah Bennieh (2 W.A.C.A. Reports 1). That passage is habitually taken by this Court as a guide to its duties in considering appeals from Native Tribunals and it is an added reason why the 1929 judgment of a Native Court on .. matters which are peculiarly within their knowledge arrived at after a fair hearing on relevant evidence, should not be disturbed without very clear proof that they are wrong." The learned Trial Judge has nowhere in his judgment found that the 1929 judgment was wrong. Nor have the Native Court in this case. The Native Court in this case, admittedly quite wrongly, treated the 1921 and 1929 judgments as rendered null and void by the subsequent judgment about a different piece of land given by an Administrative Officer sitting in the Provincial Court and they appear to have trimmed their own judgment to fit with what they wrongly conceived to be the effect of the Provincial Court judgment. In view of our opinion that the plea of res judicata must be upheld, we have not thought it necessary to deal with the 7th ground of appeal, that the judgment is against the weight of evidence, but we think it well to make it clear for the benefit of the people concerned that the effect of our judgment will be that the PlaintiffsRespondents have no right or title to farm or collect palm nuts on the land in dispute and that the Okono trees and not the Idebe Road constitute the boundary between the parties. This, however, does not mean that the Defendants-Appellants are given a declaration of title to the land in dispute but only that their use of it must not be disturbed by the Plaintiffs-Respondents or their people or licensees seeking themselves to use the land for farming or collecting palm nuts. The appeal is allowed and the judgments of the Court below and of the Akpabuyo Native Court (including in both cases the Orders as to costs) are set aside, and it is ordered that the Plaintiffs' claim do stand dismissed and that judgment be entered for the Defendant. The Appellant is awarded' costs in this Court assessed at sixty guineas and in the Court below assessed at fifteen guineas and in the Native Court assessed at five guineas and it is further ordered that any payments made by the Appellant to the Respondents under the judgment of the Court below or of the Akpabuyo Native Court shall be refunded.