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The following joint judgment was delivered :- This is an appeal from a judgment of the High Court delivered at Calabar on the 1st of December, 1942. The Plaintiff in this action sued as head chief of and representing the members of Nunubon Okukpa of Ikot Oku Nsit and the Defendant is the head chief of and represents the members of the Nunokubo house of Ikot Asat. The claim, which is of importance, reads thus :-
“The Plaintiff claims a declaration of title to all that piece and parcel of land at Ikot Oku Nsit known as Ekpene Ukim and shown on the plan to be filed; also an injunction to restrain the defendant from building or otherwise using the said land and an order that the defendant do remove from the said land all buildings thereon put up by them and or for such other order as to the Court may seem fit. II. The plaintiff also claims a declaration that for the reason that the review judgment of the Magistrate, Full Powers Magisterial Area, Calabar, dated 24th day of September, 1937 being a nullity for want of jurisdiction and by virtue of the judgment of the Clan Court ,of Western Nsit dated 15th day of July, 1936 and the judgment of the said Magistrate dated the 1st day of July, 1937 the people of Ikot Oku Nsit are the owners of all that piece or parcel of land above described.”
The course of the proceedings is a curious one. The action originated in the Native Court of Western Nsit No.1 in the Uyo Division of Calabar Province and on the 6th July, 1938, the suit was transferred to the High Court by the District Officer under section 25 of the Native Courts Ordinance. Plan and pleadings were ordered and on the 8th of March, 1940, when the case came up for hearing before Pearson, Assistant Judge, argument was heard with reference to a previous case before the Clan Court of Western Nsit between the same parties as a claim for possession of the same parcel of land in which judgment was given for the Plaintiffs on the 15th of July, 1936: there was an appeal to the Magistrate Calabar who first upheld that judgment but subsequently reviewed his judgment and entered a nonsuit. The learned Judge held I that the Magistrate could properly review his judgment, and the question of res judicata did not arise. The record then reads :-
“Court: by consent of counsel, case is referred to the District Officer Uyo as arbitrator to find the boundary between the lands appurtenant to the village of Ikot Oku Nsit and Ikot Asat” .
The order was drawn up in these terms and the words “ and to make a full report on his investigation to this Court “ were added.
We are not called on to decide whether or not this order was an appropriate one but it should be pointed out that it throws the burden in a land case upon the District Officer as arbitrator of taking a large part of the evidence for the trial of the action.
The report of the District Officer was dated the 3rd September, 1940, but for some reason which does not appear on the record it was not filed until the 14th of September, 192. Two plans Exhibits “A” and “B” the former put in by the Defendant the latter by the Plaintiff-and a full copy of the original proceedings of the case heard in the Asang Native Court were attached, but It does not appear that any record of the proceedings before the arbitrator was forwarded and no record of those proceedings has been before this Court or the High Court.
When the case next came up for hearing before Jackson. Assistant Judge (Pearson, Assistant Judge, having left Nigeria) there was argument of Counsel as to the issue and upon what is called the Referee’s Report; Counsel for the Plaintiff claimed that the order made by consent determined the new issue and asked for Judgment in accordance with that Report. Counsel for the Defendant however contended that the order did not alter the issue and that the proceedings before the Referee were irregular or the grounds that :-
“(a) proceedings of Native Court upon which he relies had been declared a nullity by the Magistrate’s Court.
“(b) for purpose of determining boundary it was necessary not only to read proceedings but to form an opinion on the veracity by examining the witnesses.”
No counter argument was offered to the submission with regard to the latter point in the Court below.
The Court in giving judgment arrived at the conclusion that the order narrowed the issue to the question of what is the boundary between the two villages and held that there was nothing in the report to suggest that the findings were arrived at other than by a careful and judicial consideration of the evidence. The learned Judge, who had previously held that upon the Referee's report he was precluded without the hearing of further evidence from determining the issue of ownership of the land described in the plan, goes on to say :-
“Upon the evidence before me, I, clearly, cannot grant any declaration in the terms prayed for in the writ in the absence of any evidence as to the limits of the whole perimeter of the land now in issue. But I can, and do enter judgment for the plaintiffs in the terms that the boundary between the villages of Ikot Oku Nsit and Ikot Asat is along a straight line drawn from point ‘L’ to point B’ and thence along the path to the point ‘K’ (as shown by the Arbitrator on the plan filed in Court and marked as ‘B’). I do further grant to the plaintiffs an injunction to restrain the defendants, their agents or servants from entering into that land described on the plan as Ekpene Ukim. The plan' B' is to be filed in the Registry as a part of this record.”
The grounds of appeal are that the Court on its finding should have dismissed the claim as the writ had not been amended, and could not grant an injunction as the boundaries had not been determined; that the learned judge was wrong in accepting and in basing his judgment on the report of the Arbitrator as the Provisions of rule 9 of Order XXXVII of the Supreme Court Rules had not been complied with. That rule applies by virtue of the I provisions of Order XXVIII rule 2 of the Protectorate Courts Rules, I 1934. Counsel for the Respondent sought to support the decision f on the ground that it settled the whole issue between the parties, l that the proceedings before the referee were in order and that the area was sufficiently determined for an injunction to be granted.
It is clear that there was no amendment of the writ and that the order by consent did not operate to limit the claim to the fixing of the Northern boundary of the land in dispute, the claim remained one for a declaration of ownership of the land in dispute, and an injunction.
The proceedings before the Referee whose report shows the infinite trouble with which he investigated the matter, appear, so far as appears from the report, to have been limited to “ reviewing” the evidence adduced in the Native Court, visiting the area, and checking the plans and there was no other record before the lower Court of any evidence taken though the learned Judge accepted the Plaintiff’s word that the arbitrator heard evidence and recorded it in writing. There are differences in detail between the two plans Exhibits “A” and “ B” which have not been reconciled and the declaration of the boundary granted involves areas not included in the claim.
We regard the manner in which the referee conducted his inquiry, namely his “reviewing” the evidence given by the witnesses in the Native Court instead of himself hearing and recording their evidence in full and his failure to forward to the Court a record of the proceedings before him and of any evidence he may have taken, as so fundamentally wrong that it vitiates the whole trial.
The appellant is entitled to attack the proceedings before the referee, but he has not been able to do so, because they are non- existent. It is the duty of this Court to examine those proceedings in order to form an opinion as to whether or not the judgment of the Court below should be supported. This it has not been able to do.
These facts, coupled with the other unsatisfactory features of the case, namely the discrepancies between the two plans and the mistaken idea of the learned trial Judge that the terms of reference changed the issues, make it impossible to allow the judgment of the lower Court to stand.
The Appeal is accordingly allowed, the judgment of the Court below, including the order as to costs, is set aside and it is ordered that if any sum has been paid in pursuance thereof it shall be refunded. The case is remitted to the Court below to be reheard by a different Judge. At the rehearing the issues should be those appearing in the writ, subject to any amendment which may be allowed, and it is desirable that a fresh plan which satisfies the Court that it accurately shows the land in dispute should be filed. We can see no necessity for another reference. In our opinion, it is preferable that the Court should itself see and hear the witnesses and, if necessary, view the land and so form its own opinion on the facts.
The Appellant is awarded costs in this Court assessed at 35 guineas; the costs hitherto incurred in the Court below shall be in the discretion of the trial Judge at the rehearing.
Appeal allowed. Judgment set aside. Case remitted for rehearing.