1.ODUA ESIAKA                                                    

                                                 2.  IZUKA AKOGWU

                                                 3.  ONYEDIOKPU NWENEGBO

                                                 4. OBITIBE ESIOBU, FOR THEMSELVES AND AS REPRESENTING       .  ..                                            THE  PEOPLE OF OGWU-ANIOCHA                               Appellants 

                                                                                             v.                                            

                                                 1.  VINCENT OBIASOGWU

                                                 2.  JOHN OKWESA

                                                 3.  EZIONU UZOKA

                                                 4.  OKANI

                                                 5.  IRUIGWE

                                                 6. IHENYIRIMBA, FOR THEMSELVES AND AS REPRESENT­ING  .             .  ,                                           THE PEOPLE OF AMAMPUTU-ULI                                   Respondents

                                     

 

Inter-Tribal Boundaries Settlement Ordinance-Boundary settled thereunder ­Parties to the dispute. Estoppel- People whose title is involved standing by in dispute.

The appellants, as plaintiffs in the Court below, claimed for their people an area of land. The defendants disputed the claim and asserted that owing to a dispute between their people and the plaintiffs' people flaring up when the plaintiffs pledged that land to someone, there was an inquiry under the above Ordinance which fixed the boundary and that was the correct boundary between the parties.

Prior to the inquiry the defendants, who disputed the pledge made by the plaintiffs, took actions in the Native Court in respect of the land; so did the plaintiffs and their pledgee. Those actions were withdrawn by the plaintiffs and the defendants for the purpose of an inquiry under the Ordinance. The defendants in the Court below relied on the boundary settled by the decision in the inquiry as concluding the plaintiffs from maintaining the present action; the plaintiffs' answer was that it was not an inter-tribal settlement within the said Ordinance but a settlement between their pledgee in his personal capacity and the defendants' tribe.

The administrative officer who made that inquiry was alive to this point; he found and recorded that the pledgee was representing the plaintiffs' people. At the inquiry plaintiffs' own Chief gave evidence supporting the pledgee's claim to the land, a claim derived from the title set up by the plaintiffs, and showed the inquiring officer the boundaries of the land claimed by the plaintiffs; and in the present action their witnesses admitted that their people knew of that inquiry and were interested in the dispute.

The trial Judge held that the title of the pledgee was identical with plaintiffs' title; that he was fighting their battle and they were supporting him by deputing representatives to testify as to their title in the inquiry; that they were presumed to have authorised him to conduct the proceedings in the inquiry; that in fact they were parties and were bound by the settlement of the boundary decided in the inquiry.

The plaintiffs appealed.

Held: By abandoning the actions in the Native Court the plaintiffs' people assented to the inquiry and elected to be represented by their pledgee, and they took part in the inquiry; therefore the settlement of the boundary made in the inquiry was conclusive and binding on them whether as a party to the inquiry- [pg 178] which they were--or (if they were not a party) because they stood by and allowed their pledgee to fight the battle about their title

. Cases cited:-

(1) Roden v. London Small Arms Co., 46 L.J., Q.E.D., 213.

(2) Re Lart, Wilkinson v. Blades, 1896, 2 Ch. 788.

(3) Farquharson v. Seton, 5 Russ., 45.

Appeal by plaintiffs: No. 3797.

J. I. C. Taylor for Appellants.

Onyiuke for Respondents.

The following judgment was delivered:

Coussey, J.A. This is an appeal from the judgment of Manson, J., in a suit begun in the Native Court of Osomari, Onitsha Province and transferred to the Supreme Court by order of the District Officer, Onitsha.

The plaintiffs are elders of Ogwu-Aniocha and they sued as representing the people of Ogwu-Aniocha. The defendants were sued as elders of Amamputu-Uli and as representing the people of Amamputu-Uli. The claim was for a declaration of title to land called ENUIGBO and damages for trespass thereon and an injunction. According to the statement of claim, portions of the land claimed are known as EYINGA and OGBUM. The area claimed by the plaintiffs is shown edged pink on a plan dated 22nd July, 1950, which was prepared by a surveyor employed by the plaintiffs and which was marked as Ex. 1.

The plaintiffs alleged as their title, use and enjoyment of the land from time immemorial, and that they had granted farming licences or tenancies to the defendants' people of portions of the land and for which the defendants had paid rent and, as a further act of ownership, that in the year 1928 the plaintiffs had pledged a large area of land including that now in dispute to one Chief Onyeama ofOgwu Ikpelemili.

The defendants' case was that the land in dispute is their ancestral property and that their ancestors granted Jand to the plaintiffs' ancestors upon which to settle but which is not part of the area in dispute. The defendants disputed the plaintiffs' claim to having received rent from them as tenants, and the defendants asserted that the plaintiffs' act in pledging the land to Chief Onyeama precipi­tated a land dispute between the parties which ended in an inquiry under the Inter-Tribal Boundaries Settlement Ordinance (Cap. 95). That inquiry was conducted by an Assistant District Officer, Mr. Beaumont, in 1939 and resulted in a boundary being fixed between Ogwu-Aniocha, the plaintiffs' people, and Amamputu-Uli, the defendants' people.

At the trial in the present suit, the defendants maintained that the Beaumont boundary, which was confirmed by the Senior Eesident on review is their correct boundary and the boundary line between the parties to this dispute.

The facts found by the learned trial Judge are that Chief Onyeama, after he had taken the land from the plaintiffs as a pledge, put tenants on the land. \Vhen they learned of the pledge, the defendants at once objected and, in assertion of their rights, they burned down some of the tenants' huts. In consequence, some of the defendants' people were convicted by the Court of arson, and imprisoned, in the case of one of them, for s'even years. This must have been a serious set­back for the defendants. They continued, however, to dispute the pledge of Chief Onyeama, and then actions were taken by the defendants and also by the plaintiffs and Chief Onyeama in the Osomari Native Court in respect of the land. Those actions were withdrawn by the plaintiffs and defendants respectively for the purpose of the inquiry under the Inter-Tribal Boundaries Settlement Ordinance (Cap. 95). Finally the inquiry referred to was set up by Government under the Ordinance. A survey and plan were made for the purpose of the inquiry; a copy of the plan was before the trial Judge.

Mr. Beaumont held an exhaustive investigation and perambulated the land [pg179] in dispute and eventually reported his decision, fixing a boundary line. The learned trial Judge found that the boundary, as the plan made at the time shows, is the same as the western bonndary line of the area in dispute as shown on the plaintiffs' plan, Ex. 1.

Apart from acts of ownership of which the defendants gave evidence, they rely, as already stated, on the Beaumont decision and concluding the plaintiffs from maintaining this action.

The plaintiffs' answer to this contention, and it is their main ground of appeal, is that the settlement was between Chief Ollyeama, in his personal capacity, as the plaintiffs' pledgee on the one hand and the defendants' tribe on the other hand, and that it was therefore not an inter-tribal settlement within the meaning of sections 2 and 3 of Cap. 95 which contemplates a boundary settlement between two tribes and not between a tribe and an individual as Chief Onyeama was.

The situation had been considered by Mr. Beaumont at the time of the inquiry.

After observing that the parties were unusual for an inter-tribal boundary inquiry, he found and recorded that Chief Onyeama was representing the people of Ogwu-Aniocha and that he conducted the inquiry on those lines. It has been argued by Mr. Taylor that at the Beaumont inquiry Chief On yearn a is recorded as appearing for Ogwu, which is not the Ogwu-Aniocha tribe. If, however, Exhibit 2, the Pledge Note, is referred to at page 54 of the Record, it will be seen that the Ogwu-Aniocha people are there referred to as Ogwu, naming, that is to say, those represented by Chief Okereke and others. This point had also been raised as a ground of appeal at the Resident's Review and he held that it was fully understood that Chief Onyeama was acting on behalf of the Ogwu-Aniocha people. Apart from this, the plaintiffs' own Chief, Chief Okereke, gave evidence at the inquiry and supported Onyeama's claim as pledgee, a claim derived from the title set up by the plaintiffs. He, Chief Okereke, showed Beaumont the boundaries of the land the plaintiffs claimed. Further, before the trial Court, the plaintiffs' witnesses admitted that the Ogwu-Aniocha people knew of the Inquiry and that they were interested in the dispute.

The learned trial Judge declined to accept the submission of the plaintiffs that Chief Okereke was not their Chief and did not represent them at the Inquiry. As Mr. Beaumont foresaw, the attitude of the plaintiffs at the inquiry was, .. Let Chief On yearn a claim what he can; if he wins, we shall gain; if he loses, our title will not be affected".

The nature and object of the inquiry must be regarded in order to ascertain who were really and substantially the contending parties at the time. There is no doubt that they were the Ogwu-Aniocha people and the Amamputu-Uli people. By abandoning the actions in the Native Court, the Ogwu-Aniochas assented to the inquiry and they elected to be represented by Chief Onyeama, their pledgee. In my opinion the learned Judge's finding that the plaintiffs were aware of the settlement is supported by the evidence. They are on the record as the tribe concerned. It was unnecessary for them to be served as parties as it was not a suit. They took part in the inquiry. The settlement is conclusive and binding on them. If, on the other hand, it can be argued that they were not parties, the result would be unchanged.

The learned trial Judge found that the title of Chief Onyeama was identical with the plaintiffs' title. They were content to let Chief Onyeama fight their battle for them, but supporting him by deputing representatives to testify as to their title. They were parties in fact and the settlement binds them as they are presumed to have authorised their pledgee Onyeama to conduct the proceedings with their authority and consent.

If, then they were not parties, what was said by Cockburn, C.J., in Roden v. London Small Arms Co. (1) is in point, namely the doctrine is well known and recognised in Courts of law that if you stand by and allow another to do an act [pg 180] n a particular way which you could have prevented at the time, you must be held bound by the act so done with your acquiescence. The plaintiffs knew perfectly well that any order in the inquiry affecting Onyeama's title would equally affect theirs as the self-same right and title was substantially in issue. Therefore they cannot now be heard to complain that they were not parties­Re Lart, Wilkinson v. Blades (2) and Farquharson v. Seton (3). Another way to look at the matter is to ask: if Onyeama had succeeded, who would have taken the benefit of the Beaumont decision? Clearly it would have been the plaintiffs. 'One further point has been raised by the appellants, namely that the learned Judge dismissed the plaintiffs' evidence of title in one sentence, namely that he rejected it as wholly unreliable and that the plaintiffs did not establish their title. Documentary evidence has been referred to, but when that evidence is examined it is clearly inconclusive and, in my view, the learned Judge was correct in holding that it is insufficient to support the declaration of title claimed by the plaintiffs. In my opinion the appeal should be dismissed.