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CHIEF EKE OJA AND OTHERS
V.
CHIEF KANU UKPAI AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
28TH DAY OF MAY, 1954
APPEAL NO. 196/1953
2PLR/1954/74 (WACA)
OTHER CITATION(S)
2PLR/1954/74 (WACA)
(1954) XIV WACA PP. 538-542
LEX (1954) – XIV WACA 538-542
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
DE COMARMOND, Ag. C.J., NIGERIA
COUSSEY, J.A.
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BETWEEN:
CHIEF EKE OJA AND OTHERS – Appellants
AND
1. CHIEF KANU UKPAI
2. CHIEF KANU EKPEZU FOR THEMSELVES AND REPRESENTING THE PEOPLE OF BJAKPAN – Respondents
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ORIGINATING COURT(S)
Appeal by the defendants from the Supreme Court (Dove-Edwin, J., Presiding) sitting in the Aba Judicial Division
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REPRESENTATION
J. I. C. Taylor, with D. O. Ibekwe — for Appellants
J. E. C. David — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Inter-Tribal Boundaries Settlement Ordinance (Cap. 95) — Tribes in adjoining provinces — Resident of one province reviewing inquiries in two provinces – Estoppel and res judicata — Decision that there is no boundary dispute between tribes
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CASE SUMMARY
Section 3 of the Ordinance provides that “Any district officer may, with the approval of the Resident in charge of the province, inquire into and decide any dispute between two or more tribes as to the boundaries between the lands of such tribes”; and section 6 (originally section 5) provides that “the Resident in charge of the province may… review the proceedings of any inquiry held, etc.”
(“District Officer” includes an Assistant District Officer: see section 3-A of the Interpretation Ordinance.)
This was a dispute over a piece of land between-the people of Biakpan, a tribe residing in Owerri Province, and the people of Asaga, a tribe residing in the Ogoja Province, who lost as defendants and appealed against the judgment granting a declaration of title to the plaintiffs, the Biakpans, and an injunction. The evidence proved the Biakpans’ claim, but the Asagas raised a point under the above Ordinance.
There had been a dispute between the Biakpans and the Eziafos, and an assistant district officer was appointed by the Resident of Ogoja to settle the boundary. The Eziafos were not satisfied and brought in the Asagas, who bad given them the land. An assistant district officer of the Owerri Province was appointed to hold a further inquiry, and this time the Biakpans were not satisfied. The two Residents then asked the two assistant district officers to go into the matter together, and these fixed an arbitrary line as the boundary as a measure for preserving peace. The Resident of Ogoja then took up the matter for review and ordered that all land lying between the villages of Biakpan, Eziafo, and Asaga, “shall be owned in common by the three villages” ; and in His report the Resident stated that the three villages so desired and wished to have no boundary. That was a misapprehension: for the Asagas at any rate never agreed that the land should be owned in common, and their defence in the present suit was that they were the owners. But at the same time they pleaded estoppel or res judicata on the basis of the Resident’s order against the Biakpans’ claim to the land.
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DECISION(S) FROM THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
The Resident of Ogoja’s order was ultra vires the Ordinance and a nullity:-
(a) because what the Ordinance contemplates and provides for is a dispute between tribes as to the boundaries between their lands and the settlement of the boundaries, whilst his decision was that there was no dispute about boundaries; and
(b) because he purported to review the proceedings of inquiries in two provinces the province of Ogoja, where the Asagas resided, and the province of Owerri, where the Biakpans resided-whilst he could not, under the Ordinance, exercise the powers conferred thereby outside the limits of his province.
Case cited:-
(1) Nnamena Anjoku of Obunaw Akpugo v. Ivure Nwa Nnameni, W.A.C.A. Appeal No. 178/1953 (Nigeria) decided on 5th November, 1953; distinguished.
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MAIN JUDGMENT
The following Judgment was delivered:
DE COMARMOND, Ag. C.J., NIGERIA.
This is an appeal against a judgment delivered by Dove-Edwin, J., sitting in the Aba Judicial Division. The defendants in the Court below are the appellants.
The suit originated in the Uraghara Native Court but was transferred to the Supreme Court.
Plaintiffs’ claim was for a declaration of title to a certain piece of land, for damages for trespass upon the said land, and for an injunction restraining the defendants, their servants and agents from any further acts of interference.
The learned trial Judge granted the declaration prayed for and the injunction, but did not grant damages for trespass.
The boundaries of the land in dispute are set out in paragraph 2 of the statement of claim and are shown on the plan (exhibit “A”) produced by the plaintiffs. The land in dispute is edged pink on that plan.
The learned trial Judge held, in effect, that the plaintiffs’ boundaries on the west and north-west are as shown on plan “A”. The western boundary is partly demarcated by the Ivetim stream. The western boundary at its northernmost point bends towards the north-east where the Isiogun stream forms a natural boundary almost along the whole distance to the northernmost point of the land in dispute where the Isiogun stream meets the Dunke River.
The defendants’ contention was that the land in dispute forms part of the area owned by them on the west of the land in dispute and that the boundary between their lands and the plaintiffs’ lands lies along the eastern boundary of the land in dispute, shown on plan “A” as the “boundary traced by the Asaga”. They go further and aver that the plaintiffs are their tenants and were allowed to settle on the land now known as Biakpan village.
The learned Judge took the view, which I consider justified, that there was no dispute about any land situate outside the land in dispute which is shown edged pink on plan “A”. He addressed himself to the issue whether the boundary separating the plaintiffs (i.e. the Biakpans) and the defendants (i.e. the Asagas) is the yellow line on defendants’ plan (exhibit “B”) or the line edged light red on the same plan. The plaintiffs claimed that the yellow line is the boundary, and the defendants said that the light red line is the boundary.
The learned trial Judge considered that the plaintiffs and their witnesses were reliable and he accepted their evidence. He did not believe the defendants and their witnesses. He noted, inter alia, that the Ufieles and Eziafos were given land by the Asagas to the west of the land in dispute (which tends to indicate that the boundary is on the western side of the land in dispute).
I do not consider that the appellants can succeed in this appeal to have the judgment set aside on the ground that it cannot be supported having regard to the weight of evidence or that it is unreasonable.
The important question that falls to be decided is whether the learned Judge was right in rejecting the plea of estoppel or res judicata raised in paragraph 8 of the Asagas’ statement of defence.
It was only in the course of the trial that the defendants disclosed the basis for the said plea. They produced a document (exhibit “E”) which contains the record of proceedings held under the Inter-Tribal Boundaries Settlement Ordinance (Cap. 95) and certain minutes. The document was admitted by consent.
Exhibit “E” shows that on the 3rd November, 1936, Mr. T. G. Connell, Assistant District Officer, Afikpo Division, was appointed to hold an inquiry under the Inter-Tribal Boundaries Settlement Ordinance (hereinafter called the Boundaries Ordinance) to determine the boundary between Eziafo and Biakpan. On the 16th of the same month Mr. Connell gave his decision. The Biakpan people were satisfied but the Eziafos were not, and they brought in on their side the Asaga people (defendants-appellants in the present suit). It is necessary to point out here that the Asagas and Eziafos belong to the same clan and that the Eziafos were given their land, which abuts on part of the western boundary of the land in dispute, by the Asagas.
Objections were raised against the boundary fixed by Mr. Connell, and, as a result, another assistant district officer (Mr. Ennals) was appointed to hold a further inquiry. Mr. Ennals was Assistant District Officer in Bende Division. He was instructed to fix the boundary between the Biakpans on the one side and the Asagas and Eziafos. The boundary traced by Mr. Ennals did not satisfy the Biakpans and they petitioned against the decision.
In paragraph 4 of the review made by Resident O’Conner (exhibit “E”) it is stated that the Residents of the two Provinces looked into the matter and agreed that the two assistant district officers should go on the land and arrive at a joint decision confirming one of the decisions already arrived at.
The decision arrived at by· the two assistant district officers was to alter the Connell boundary.
In paragraph 8 of Mr. O’Conner’s report in exhibit “E” it is stated as follows:
“while in the past the areas on each side of it (i.e. the boundary fixed by the two assistant district officers) had been owned in common and while neither party today had established a definite title, it was considered advisable to make this boundary purely as a measure for preserving peace. It was in fact an arbitrary line”.
This was an explanation given by Mr. Connell in order to explain paragraph 4 of the joint report (i.e. the Connell-Ennals report).
The Resident of Ogoja Province, Mr. O’Conner, then took up the matter for review. The result of his intervention was the setting aside of the joint report of Messrs. Connell and Ennals which he was reviewing (he stated that the previous separate reports were merely interlocutory proceedings). Mr. O’Conner then ordered that all land lying between the villages of Biakpan, Eziafo and Asaga “shall be owned in common by the three villages”.
It is quite clear that Mr. O’Conner did not fix any boundary. In paragraph 15 of his report in exhibit “E” he explained that, being convinced that in the past there never had been any question of boundaries, he had suggested that the three villages should consult and say whether a boundary was desired. Then in the following paragraph he stated that in a thoroughly friendly spirit the villages acted upon his suggestion and were unanimous in their view that no boundary was desired but that all the land lying between the three villages should be “communally” owned by the villages, due regard being paid to the existing farms occupied by inhabitants of the villages.
The Resident then made the order set out above.
It is upon this order that the defendants relied as constituting an estoppel. The trial Judge pointed out that the defendants (now appellants) did not rely on the Resident’s order. What the learned Judge meant was that the defendants did not plead that the land in dispute was owned in common by them, the Eziafos, and the Biakpans. Their statement of defence was to the effect that they owned the land in dispute. Moreover, at the trial, the defendants led evidence to the effect that their lands were bounded on the east by the pink line (or light red line) shown on plan “B” (see evidence of D. W. 1, Ogbu Ogwo).
The interpretation of the Resident’s decision given by Ogbu Ogwo was that the defendants” should farm up to Iyi Atama “.
The Resident had said nothing of the sort.
The third witness for the defence (Jonathan Okwara Erem) went further and stated clearly that the Asagas did not accept the Resident’s order as to communal ownership and that the Asagas did not want the land to be owned in common.
The fourth witness for the defence stated that what the Asagas understood from the Resident’s decision was that, since there was no boundary, the Asagas could all go and use the land as they used it before. The witness added that the Asagas would not allow the Biakpans to cross Iyi Atarna.
From the evidence just reviewed, it is clear that the defendants-appellants never agreed that the land in dispute should be owned in common. They cannot therefore say that the plaintiffs are estopped from claiming the said land because there was an agreement to treat it as owned in common. In other words, the Resident purported to approve an agreement which did not in fact exist.
The question that arises next is whether the Resident’s decision constitutes an estoppel per rem judicatam (whatever the defendants thought about it).
In the case of Nnamana Anjoku of Obunaw Akpugo v. Iuure Nwa Nnameni (1), this Court held that “a district officer acting under section 3 of the Inter-Tribal Boundaries Settlement Ordinance is a person vested with judicial authority to hear and determine a class of disputes by the provision of a statute and that, when so acting, he is a judicial tribunal and his decision, subject to the rights of review thereof provided by the statute, is conclusive upon the issue so determined by him”.
When Dove-Edwin, J., gave his decision in the present case, this Court had not yet decided the appeal No. 178/53 above-mentioned.
The learned trial Judge was in error when he held that a decision given by a district officer or Resident under the Boundaries Ordinance “is a useful administrative weapon and that is all”, but this does not necessarily mean that the order or decision given by Resident O’Conner was such as to constitute res judicata. I am of opinion that the Resident did not “decide any dispute between two or more tribes as to the boundaries between the lands of such tribes” (see section 3 of Cap. 95).
The Resident stated as clearly as possible that no boundaries need be fixed and he did not fix any (see paragraphs 15 and 17 of Resident’s report in exhibit “E”).
What the law empowers a district officer (or a reviewing officer) to do is to inquire into and decide any dispute between two or more tribes as to the boundaries between the lands of such tribes. If, therefore, the decision is that there is no dispute about boundaries, any decision or order purporting to be given under the provisions of the Boundaries Ordinance is ultra vires. I might add, in order to clarify my meaning, that if the lands of two tribes are not coterminous there can be no boundary dispute between them.
Moreover, I am of opinion that Mr. Resident O’Conner (Resident of Ogoja Province) was not acting intra vires the Boundaries Ordinance when he purported to review the proceedings of inquiries made under that Ordinance in two different Provinces: Ogoja and Owerri. It is clear from sections 3 and 5 of the Ordinance that a Resident cannot exercise, outside the limits of his Province, the powers conferred upon him by the Boundaries Ordinance. It is equally clear from exhibits “E” and “F” that the people of Asaga (the appellants) reside in the Afikpo Division of Ogoja Province whereas the people of Biakpan (the respondents) reside in the Bentle Division of Owerri Province. As a matter of fact, the Residents of these two Provinces did at one stage of the dispute appreciate the difficulty because they agreed to appoint one officer from each Province to decide the boundary dispute. When, subsequently, the Resident of Ogoja Province purported to review the proceedings of the joint inquiry, he acted ultra vires and the order made by him is therefore a nullity.
I am of opinion, therefore, that the first two grounds of appeal fail.
The last ground of appeal, which is that the decision is unwarranted, unreasonable and not supported by the weight of evidence, must also fail because it cannot be said that there was not sufficient evidence to support the trial Judge’s decision. I am satisfied that the learned Judge spared no effort in analysing and weighing the evidence, and I see no reason for disagreeing with him.
I would dismiss this appeal with costs.
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FOSTER-SUTTEN, P.
I concur.
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COUSSEY, J. A.
I concur.
Appeal dismissed.