Coussey J.A. This is an appeal from a judgment of the Supreme Court, lbadan Judicial Division setting aside on appeal the judgment of the Magistrate’s Court, Abeokuta District on the ground that the Magistrate had no jurisdiction to determine the issue before him as there was a bona fide dispute as to the area of had where the alleged trespass took place.
The was for damages for conversion in October, 1947, of cocoa and kola nuts by the third, fourth and fifth defendants as agents or servants of the first and second defendants from the plaintiff's farm at Boda Village in Ilaro Division, and also damages for trespass. By paragraph 2 of plaintiff's particulars of claim it was averred that in Suit No. 184/46 the first and second defendants were unsuccessful in a claim against the plaintiff for declaration of title as to the same land which the plaintiff claimed had been trespassed upon. This was denied by the particulars of defence, which further denied that the said Suit No: 184/46 was relevant to the present issue before the Court.
By paragraph 4 of the defendants' particulars the defendants denied ever having gone upon any land belonging to or in possession of the plaintiff or that they knew of any such land. But by paragraph 5, the defendants averred that some time in 1947 the plaintiff went upon land in their possession whereupon the third, fourth and fifth defendants drove the plaintiff away.
After hearing the evidence the learned Magistrate, in a considered judgment, made certain findings of fact which will be referred to later, and awarded the plaintiff damages for the trespass and conversion sued for. The plaintiff-appellant complains that there was misdirection on the part of the learned Judge in three matters in setting this judgment aside on the ground that the Magistrate had no jurisdiction as a bona fide dispute as to the area of land existed. Firstly, in holding that the Magistrate did not direct his mind to the point that his jurisdiction would be ousted on a question of title to land being raised; secondly, in finding that there was ample evidence upon which the Magistrate should have held that a bona fide question of title was raised in the suit; and further that there was no evidence before the Magistrate to determine the exact location of the land.
So far as it is relevant to the present question the proviso to section 19 of the Magistrate's Courts Ordinance (Cap. 122) is identical with the proviso to section 12 of the Supreme Court Ordinance (Cap. 211).
The principles upon which the jurisdiction of the Supreme Court is exercised or ousted in suits which raise an issue as to title to land were recently considered by this Court in Appeal No. 145/1953, Ajaka Izenkwe and Others v. Onyemucke Nnadozie. In the case of a claim such as that in the present case, the test is whether a bona fide issue of title was raised or could genuinely be raised at the trial.
We are of opinion that the learned Judge in appeal erred in disturbing the judgment of the Magistrate.
Firstly, as to the identity of the land. The learned Magistrate held on the evidence that the farmland, subject of the trespass was the identical area which the first and second defendants had unsuccessfully litigated with the plaintiff as is evidenced by the judgments of the Acting District Officer (exhibit A) confirmed on appeal by the Resident and confirmed on further appeal by the Court of the Governor on the 8th October, 1947 (exhibit B). The defendants-respondents' counsel has pointed out that there was no plan of the locality and that the proceedings in the Native Court of first instance were not exhibited by the plaintiff. These might be matters for consideration if the evidence for the defendants had not made it clear that they were simply attempting to confuse the identity of the land in an endeavour to avoid the effect of the judgment against them. The Magistrate, however, arrived at a. finding of fact that it was the identical land and that finding should not have been disregarded by the learned Judge.
Secondly, the effect of the judgment against the defendants-respondents is that they are estopped from reagitating the title to the farmland and that the plaintiff-appellant was in possession at the time of trespass. The defendants- respondents could not therefore, in this action, raise a genuine issue of title and they did not do so as is shown by their evidence and particulars of defence.
Lastly, when the Magistrate held that there was nothing to justify a transfer of the suit, he was overruling an objection by the defendants' counsel to the jurisdiction of the Court, namely that an issue of title was involved. He must therefore have addressed his mind to this point. Throughout the hearing it is ear that the issue before the Court was as to trespass and as to this the Magistrate held that the defendants-respondents had not established a defence.
The appeal is allowed, the judgment of the Court below is set aside and the judgment of the Magistrate is restored with costs for the plaintiffs-appellants in is Court and in the Court below: fixed at 20 guineas in Court below and £33 7s. 0d. in this Court.
Verity, C.J. I concur. de Comarmond, S.P.J. I concur.
Appeal allowed; judgment of Magistrate restored.