<p>Coussey, J.A. This was a representative action by the Obong or Head Chief of Calabar on behalf of the Efik community of Calabar and Creek Town against the !pective representatives of the Qua and Efut communities of Calabar and eek Town for a declaration of title to Nsutana Island in the Calabar river and, alternatively, for a declaration against the two defendant communities that the Efiks are the exclusive owners of the said island.</p><p>The plaintiff claimed that the Efiks were the first settlers in the district which row known as Calabar and that the Quas and Efuts, in that order, arrived after many generations of exclusive settlement by the Efiks. From Creek Town, which a part of Calabar, the plaintiff alleges that the Efiks crossed the river to Nsutana Island, farmed on portions of the land there and that, among other positive acts consistent only with exclusive possession and ownership, they let t portions of the island, placed an idol at a certain spot and constructed a road across the island, all without protest or opposition by the defendants. The defendants disputed the plaintiff's claim to exclusive possession and to a declaration of title and averred that from time immemorial the Qua and Efut communities had exercised customary acts of user consistent with the ownership of island being in the three communities of the Quas, Efuts and Efiks, They disputed the plaintiff's claim to be the first settlers in the Calabar district and allged that the Efiks were the last arrivals, that they were given land by the as and Efuts and that the Nsutana Island in dispute was used originally by Quas and Efuts and that when the Efiks came on the scene the three communities together used the island.</p><p>In paragraph 8 of the statement of claim the plaintiff referred to Suit No. 3/1946, a matter brought to the Supreme Court to settle to whom compensation should be awarded in respect of Prospect Beach, a plot of land on the island dispute which had been acquired by Government for a quarantine station. In paragraph of the statement of claim the plaintiff disclosed that the defendants claimed to share the compensation with the Efik community by reason of their joint interest with them in Prospect Beach, The statement of claim does not state the result of that suit. Paragraphs 8 of the defences filed by the second and .d defendants, however, aver that the claims of the Quas and Efuts to a share the compensation were upheld both by the Supreme Court and the West African Court of Appeal.</p><p>The plaintiff called three witnesses who gave traditional evidence and evidence user of isolated places on the island which, in the judgment of the Supreme Court in the Suit No. C/13/1946 to be referred to later, is stated to be about and a half by one and a half miles in extent.</p><p>In the course of the plaintiff's evidence the defendants tendered in evidence judgment of the Supreme Court referred to as exhibit A. That judgment does operate as an estoppel against the plaintiff, but it is relevant on the issue of occupation and user of a plot of land on the island, upon the determination of which issue depended the award of compensation. In deciding that issue the Court held that the plaintiff's predecessors had suzerainty over the island but he it as King of Calabar and his subjects, Efiks, Quas and Efuts were entitled 0 across to the island. The Court held that for the last thirty years and more island had been used by the three communities and no one had challenged other. On that basis the compensation was awarded to the Efik-Qua-Efut Native Authority, the successor to the rights of overlordship formerly exercised the Efik Kings.</p><p>At the close of the plaintiff's case the learned trial Judge dismissed the claim, holding that he was not satisfied that the traditional history showed that plaintiffs are owners of the island nor that the evidence showed acts of ownership<sup class='page-numbering' title='Page 522'>*Page 522</sup>sufficient to justify a declaration of title to the whole island. The plaintiff appeals from this judgment.</p><p>The principal grounds of appeal argued are:-</p><p>(a) That the plaintiff's action should not have been dismissed without calling upon the defence as the occupation proved by the plaintiffs as to certain portions of the island raise a presumption of ownership of the whole.</p><p>(b) That a prima facie case was established and therefore the judgment was against the weight of evidence.</p><p>(c) That if, in the opinion of the Court, the plaintiff's evidence did not entitle him to the declarations sought, the proper course was to enter a non-suit instead of judgment for the defendants.</p><p>As to (a) it seems necessary to correct a misconception appearing on the record. It is noted that at the close of the plaintiff's case counsel for the defendants submitted that there was no case to answer. If this had been in fact a no-case r submission, I do not think the trial Judge, sitting as he did without a jury, would have disregarded the usual practice which is not to rule on the defendants' , submission of no case unless the defendant elects to call no evidence (Parry v. Aluminium Co. (1) ).</p><p>In this case however the defendant had in fact, led evidence by tendering in evidence exhibit A. The true position in my opinion is that counsel for the defendant elected not to call further evidence and claimed judgment in the suit. As to the merits there is a general proposition in the law of evidence that repeated acts of ownership done with respect to other places connected with the locus in quo by such a common character of locality as to give rise to the inference that the owner of one is likely to be the owner of the other is sometimes receivable. Thus, in Jones v. Williams (2), Parke, B, said that “evidence of acts in another part of one continuous hedge adjoining the plaintiff's land was admissible in evidence on the ground that they are such acts as might reasonably lead to the inference that the entire hedge belonged to the plaintiff”. In such a case it is a probability, not a presumption of ownership. The facts here are entirely different. In my opinion the learned Judge was right in declining to draw an inference of ownership in this case from the evidence of isolated acts of user proved by the plaintiff.</p><p>As to (b) the judgment appealed from shows that the trial Judge was in no doubt that the plaintiff's case was not proved. It is submitted for the plaintiff that he would have succeeded in establishing his title by cross-examination of the defendants' witnesses if they had testified. This submission overlooks the principle that the onus is on the plaintiff throughout to prove the title which he seeks to have confirmed. That onus never shifts. It is not sufficient for the plaintiff in such an action to show possession and argue that the defendant has proved no better title.</p><p>As to (c) there are numerous decisions in the Courts of Nigeria to the effect that the plaintiff by his claim undertook the onus of proving acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant an inference as to the exclusive ownership of the whole island-(Ekpo v. Ita (3)). Having failed to discharge that onus the proper judgment is for the defendant and n9t a non-suit. (J, M. Kodilinye v. Mbanefo Odu (4)).</p><p>I would therefore dismiss this appeal with costs. </p><p>Foster-Sutton, P. I concur. de Comarmond, Ag. C.J. I concur. </p><p>Appeal dismissed.</p>