Appeal Court, 18th June,
1935.
Appeal
from Judgment of High Court,
Claim for Declaration of Title
to land-Question of Non-Suit
[Order]9
Rule
1
Supreme Court Rules--Court will
not on question of fact
interfere with judgment of Trial
Judge unless same is perverse or
judicial discretion has not been
properly exercised.
The facts of this case are
sufficiently set out in the
judgment.
O.
Alakija
(with him
Montacute Thompson
and
A. Soetan)
for Appellant.
C.
W.
Clinton
(with him A.
Kayode)
for Respondent. The following
judgment was delivered:-
WEBBER, C .• J., SIERRA LEONE.
This is an appeal from the
decision of Mr. Justice Graham
Paul, who gave judgment for the
defendant representing the
Onitshas in a case in which the
appellant, the Head Chief and
Eze of Obosi, sought a
declaration of title to a piece
or parcel of land known as the
western portion of Anaisiowuru
sit.uate in t.he Onitsha
Province.
The learned Judge in the Court
below dealt exhaustively with
all the aspects which a claim of
this nature presents-after
hearing both parties and their
witnesses he delivered his final
judgment. He had already dealt
with the plea of
res judicata
raised at the initial stage of
the case. In his judgment which
is the subject of this appeal he
deals first with the evidence
generally, criticising the
evidence on both sides as
conflicting and somewhat
confused. Then he dealt fully
with the rival traditional
stories and concluded that there
was little to choose between the
two versions. He proceeded
onwards and dealt with the
occupation of the rival parties
and finally he reviewed all the
cases between the Onitshas and
Obosi regarding the land in
dispute.
Eleven grounds of appeal were
filed. Five of these grounds
deal with misdirection namely
grounds 5, 6, 8, 9 and 10 and I
can find no substance in any of
them. In expressing the opinion
that Major Leonard's Book is
unhelpful in assisting the Court
to arrive at a conclusion as to
the first settlers on the land
in dispute the Court cannot be
said to be misdirecting himself
nor is it a misdirection to say
that the Court is not satisfied
that any of the plaintiff's
witnesses actually fanned on the
land.
I
also fail to see that the Court
misdirected itself as to the
exact position of the 4th
milestone. I agree with counsel
for appellant that there was no
justification for the conclusion
arrived Webber, at by the
learned Judge that the reason
cases 12B of 192~ and 13 a.
of 1931 were struck out was
because the evidence available
was not sufficient for counsel
to file a statement of claim as
ordered by the Court-this
erroneous deduction does not in
my opinion vitiate the finding
of the Court. As to ground 1
that the plaintiffs were
prejudiced by the refusal of the
Court to allow the application
of the plaintiff that the Obi or
King of Onitsha or his
representative be joined as a
co-defendant I can only say in
answer that the plaintiffs were
not at all prejudiced. For
seventeen years litigation about
this land was carried on and no
thought of adding the Obi of
Onitsha was conceived by the
parties. The plaintiff could
have made the Obi a co-defendant
before issuing his writ.
The learned .Judge in my opinion
was correct in disallowing the
application.
The remaining grounds embrace
the questions
(a)
as to whether the judgment
should have been one of
non-suit, and
(b)
as to the weight of evidences.
Grounds 3 and 4 deal with the
question of non-suit.
(3) The Court having arrived at
the decision that the evidence
adduced both for the plaintiff
and defendant "was conflicting
and somewhat confused" should
have non-suited the plaintiffs
instead of giving judgment for
the defendants.
(4) That the Court erred in law
in giving judgment for the
defendants when the Court was
satisfied in its mind that there
was little to choose between the
rival traditional stories as
advanced by the plaintiffs and
as related by the defendants.
Appellants counsel refers us to
Order 39 rule 1 of Supreme Court
Rules which reads as foHows:-
" The Court may in any suit,
without the consent of the
parties, non-suit the plaintiff
where satisfactory evidence shaH
not be given entitling either
the plaintiff or defendan t to
the judgment of the Court".
I do not think that this rule
should be applie(] in this case
which seeks for a declaration of
title. 'l'he
onus
lies on the plaintiff to satisfy
the Court that he is entitled on
the evidence brought by him to a
declaration of title. The
plaintiff in this case must rely
on the strength of his own case
and not on the weakness of the
defendant's case. If this
·onu.~
is not discharged, the weakness
of the defendant's case wiH not
help him an(] the
