WEBBER, C.J., SIERRA LEONE.
This is an appeal from the decision of Carey, J., who gave a declaration of title to the plaintiffs in respect of a piece of land at Ikot Esion of the value of £50. The plaintiffs had also claimed damages for trespass by collecting palm nuts, etc. on the said land but the learned Judge awarded no damages, the alleged trespass being in his opinion trifling and he stated that this part of the claim was not persisted in. In the statement of claim filed by the plaintiffs, the particular issue in this case will be shown to be whether the land in question was or was not purchased from Otu Osu an Ukom man by the late King Eyo VI.
It is also averred in paragraph 4 of the statement of claim, and it is denied by the defendant that any such sale took place, that the seller who purported to sell never owned the land, so as mg to be able to sell or that he was an Ukom man.
The Court below decided that there was not sufficient proof that the land was effectively purchased by the plaintiffs' predecessor. It however held that this land was originally acquired by plaintiffs' predecessor from the Adiabos and it has with the knowledge and consent of the defendant people remained in the undisputed possession of the people the plaintiffs represent for fifty years or more without any acknowledgment of right in defendant's people.
I think it will be conceded by the defendant-appellant that this finding by the learned Judge of long user and occupation by the plaintiffs is amply supported by the evidence.
The learned Judge then states as follows:-- “If the defendant or those he represents ever had any “right reversionary or otherwise to the land his predecessors “should have asserted it long ago. It is too late to do so “now in spite of the fact that there is no prescriptive period “ in question here. The learned Judge had the case of Akpan Awo v. Cookey Gam N.L.R. Vol. II p. 97 quoted before him and intimated in this paragraph in so many words that if the defendant were suing for a declaration of title on the authority of Akpan Awo v. Cookey Gam his action would fail.
But what is more important to note is that the learned Judge himself recognises that there is no prescriptive period in question here.
It is indubitable that if the learned Judge had found in favour of a sale of the land a grant of declaration of title conveying a fee simple was inevitable but he does not appear to have discriminated between rights in the acquisition of native land by purchase and rights acquired under native law and custom-the former being proprietory rights and the latter possessory rights or rights of occupancy.
The defendant-appellant's counsel filed five grounds of appeal practically all bearing on this one point namely the form in which the declaratory right should be stated.
In his argument he quoted Tobias Epelle v. Ojo N.L.R. Vol. VII and an unreported case Ikpeme of Okpo v. Iyibio Ekpo of Onor Ito both of which deal with the rights of occupancy of land acquired under native law and custom.
At the close of his argument he said he would not have quarrelled with the judgment if the form of the declaration was to grant a right of occupancy in accordance with native law and custom and he suggested that a nominal rent should be incorporated.
For the respondent, counsel contended that the reverse position of the Cookey Gam case was good law, but he was unable to show any authority for title being granted on long possession. In the end he expressed his willingness to accept a declaration of title to occupy. I am of opinion that on the findings of the learned Judge his judgment that the plaintiff was entitled to a declaration of title was wrong and that the following declaration should be substituted “that the plaintiff is entitled to and is granted, on behalf of himself and the members of King Eyo III House of Creek Town, a declaration that he and they are entitled to occupy, farm upon and use in accordance with native law and custom the land known at Ikot Esien and situate at what is known as Creek Town Plantation and bounded on the North by land of Ibok Eyo VI, on the South by land of Etubom Ita Ita and Eyo Ina Ekong, on the West by land of Itam Ita and Okon Ekpo Ndiyo and on the East by land of King Eyo III as shown and delineated and edged pink on a plan marked as Exhibit “A” in this case.”
The appellant has succeeded and should be allowed costs of this appeal.
KINGDON, C.J., NIGERIA I concur.
BUTLER-LLOYD, J. I concur.
The following Order was made:--
The appeal is allowed and the judgment of the Court below is set aside and it is ordered that the plaintiff be granted, on behalf of himself and the members of King Eyo III Rouse of Creek Town a declaration that he and they are entitled to occupy, farm upon and use in accordance with native law and custom the land known as Ikot Esien and situate at what is known as Creek Town Plantation and bounded on the North by land of Ibok Eyo VI, on the South by land of Etubom Ita Ita and Eyo Ina Ekong, on the West by land of Itam Ita and Okon Ekpo Ndiyo and on the East by land of King Eyo III as shown and delineated and edged pink on a plan marked as Exhibit A in this case.
The appellant is awarded costs in the Court below assessed at twenty-five guineas and in this Court assessed at thirty guineas.