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MA CHUKWUNTA OF OKPOME LENGWE, ETC.
V.
NWALU CHUKWU OF AMANAMOKE REPRESENTING THE PEOPLE OF AMANAMOKE AND ANOTHER
WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
13TH DAY OF OCTOBER, 1953
2PLR/1953/30 (WACA)
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OTHER CITATION(S)
2PLR/1953/30 (WACA)
(1953) XIV WACA PP. 341-343
LEX (1953) – XIV WACA 341-343
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
JIBOWU, J.
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BETWEEN:
MA CHUKWUNTA OF OKPOME LENGWE FOR HIMSELF AND ON BEHALF OF THE PEOPLE OF OKPOME LENGWE – Appellant
AND
1. NWALU CHUKWU OF AMANAMOKE REPRESENTING THE PEOPLE OF AMANAMOKE
2. AKA CHUKWU UFIO OF AMATA
3. AKPA CHUKWU ORI OF AMATA REPRESENTNG THE PEOPLE OF AMATA – Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Proposition of an Inter-Tribal Boundary Settlement Inquiry by Resident – Where no such inquiry was held – Whether amounts to estoppel
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Estoppel – Judgment of Native Court – Decision of District Officer on review – Resident proposing Inter-Tribal Settlement inquiry on application for review – Judgment valid until set aside.
ACTION:- Native Courts – Suits in representative capacity – Form – Substance
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ORIGINATING COURT
Appeal by the plaintiff: No. 11/1953.
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REPRESENTATION
Ikpeazu — for Appellant
Ibezeaku — for Respondents
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CASE SUMMARY
The appellant first sued respondents No. 2 and 3 and another in the Native Court; he was eventually non-suited by the District Officer, and applied to the Resident; and the Resident proposed an Inter-Tribal Boundary Settlement Inquiry, but no such inquiry was held.
The appellant next sued respondent No. 1 about the same land but his claim was dismissed in the Native Court of Appeal which was affirmed by the District Officer on review.
Finally he sued all three respondents and his action was transferred to the Supreme Court, where it was held that the District Officer’s decision in the second case created rem judicatam but not in the first case, and that the appellant did not prove that his people were the owners.
There were (for the purposes of this note) three points taken in the argument for the appellant that there was no res judicata:-
(a) that the Resident proposed an Inquiry;
(b) that the District Officer’s decision was liable to appeal;
(c) that the appellant sued in his personal capacity, and the respondent was so sued.
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that:
(1) The Resident did not set aside the District Officer’s decision; it remained unaffected by the Resident’s mere proposal of an Inter-Tribal Settlement Inquiry.
(2) A judgment liable to appeal remains final and valid until it is set aside by the higher Court.
(3) In a Native Court case the form is not to be stressed so long as the issue involved is clear: the evidence disclosed that the appellant was suing as a representative of his people, and that the first respondent (as indeed the other respondents also) was sued as a representative of his people.
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MAIN JUDGMENT
The following Judgment was delivered:
JIBOWU, J.
This is an appeal from a judgment of Manson, J., dismissing the appellant’s claims for (1) a declaration of title to a piece of land known as Ogba Agu, (2) £50 damages for trespass to the said Land, and (3) for an injunction to restrain the respondents their agents, servants and people from further acts of trespass to the said land.
The main facts of the case are not in dispute and are as follows:-
The land Ogba Agu, sometimes contracted into Ogbagu, has for over thirty years been the subject of litigation. The litigation between the respondents” resulted in the land being declared the communal land of the respondents.
The appellant in the Awgu Native Court case No. 167 of 1945 sued the second and third respondents and another for trespass to the same land, Ogbagu; and succeeded, but the judgment was reversed by the Native Court of Appeal which dismissed the appellant’s claim. On review of the judgment of the Native Court of Appeal, the District Officer set aside the judgment of the Native Court of Appeal and non-suited the appellant.
An application was made to the Resident of the Province to review the District Officer’s judgment; He proposed an Inter-Tribal Boundary Settlement Inquiry, but no inquiry was held.
The appellant also sued the first respondent in Suit No. 168 of 1945 in the Awgu Native Court for damages for trespass to the same land, Ogbagu, and obtained judgment, which was set aside by the Native Court of Appeal, which dismissed the appellant’s claim. The appellant applied for a review by the District Officer, who reviewed the case and confirmed the judgment of the Native Court of Appeal.
In 1947 the appellant sued the respondents in the Native Court of Lengwe and the action was transferred under the provisions of the Native Courts Ordinance to the Supreme Court of the Onitsha Judicial Division and the case was heard by Manson, J., with the result stated above.
The learned Judge held that the District Officer’s judgment confirming the judgment of the Native Court of Appeal created an estoppel per rem judicatam against the appellant and found also that the appellant did not prove that Ogba Agu belonged exclusively to the people of Okpome Lengwe whom the appellant represented.
He held also that the District Officer’s review judgment in the. Native Court Suit No. 167 of 1945 did not create a res judicata in favour of the second and third respondents but he held on the evidence that the appellant did not prove that his people were the owners of the land in dispute. He therefore dismissed the appellant’s claims.
The learned Counsel for the appellant argued on the first ground of appeal that the learned Judge erred in law by holding that the Native Court case, exhibit 3, created an estoppel per rem judicatam.
The exhibit referred to contains the proceedings in the Native Court Suit No. 168 of 1945. In support of this ground of appeal counsel argued that the judgment in Suit No. 168 of 1945, exhibit 3, was not a final judgment because the Resident proposed that the land dispute should be settled by Inter-Tribal Settlement Inquiry by his letter, exhibit 4, to the District Officer.
The appellant tendered both exhibits 3 and 4 in evidence and, on cross-examination, he said:
“After these two cases, an inter-tribal settlement was proposed by Resident but nothing came of it.”
We are unable to accept the submission that a mere proposal to refer the land dispute for inter-tribal settlement inquiry, not followed by any such inquiry has set, or can set, aside a solemn judgment of the District Officer’s Court. Furthermore, exhibit 4 nowhere stated that the judgment of the District Officer had, on review, been set aside.
In the circumstances, the judgment of the District Officer stands and is still in full force.
We may observe that the fact that a judgment is liable to appeal does not prevent it from being a final judgment. It is final and valid until it is set aside by the judgment of a higher Court.
The learned counsel further submitted that exhibit 4 could not create an estoppel as the appellant sued the respondent in his personal capacity and that he also was sued in his personal capacity.
There is no doubt that-the capacities of the parties were not shown on the writ of summons, but a perusal of the evidence led discloses that the appellant sued as representative of his people, the Okpome Lengwe people, and that the first respondent was sued as a representative of the people of Amanamoke.
In a Native Court case the form of the action is not to be stressed so long as, the issue involved is Clear. It is clear from the record of appeal that the appellant, in a representative capacity, had sued the respondents in all the cases in the Native Court in a representative capacity and that there is no substance in counsel’s submission.
The first ground of appeal therefore fails.
The learned counsel did not attempt to show, as alleged in his second ground of appeal, that the learned trial Judge misconceived the issues involved in the Native Court cases, exhibits 2 and 3, and nothing further need be said that that there is no foundation for the allegation.
The last ground of appeal is that ”verdict was against the weight of evidence”, but the only point the learned counsel could urge in support is that too much weight was given to the evidence of Chief Nworo Ashi in the Native Court case, exhibit 7, between the first respondent and the second and third respondents.
We found no substance in any of the grounds of appeal and so did not call on respondents’ counsel to reply.
The appeal fails on all grounds and should be dismissed. The appeal is dismissed with costs to the respondents accessed at £32 51. 0d. to the first respondent and £32 5s. 0d. to the second and third respondents.
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VERITY, C. J.
I concur.
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COUSSEY, J. A.
I concur.
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Appeal dismissed.
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