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OZOGBODO OKWOIKE
V.
AGU OGBODO AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
15TH DAY OF OCTOBER, 1953
W.A.C.A. No. 97/1953
2PLR/1953/50 (WACA)
OTHER CITATION(S)
2PLR/1953/50 (WACA)
(1953) XIV WACA PP. 316 – 318
LEX (1953) – XIV WACA 316 – 318
BEFORE THEIR LRDSHIPS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
JIBOWU, J.
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BETWEEN:
OZOGBODO OKWOIKE FOR HIMSELF AND ON BEHALF OF THE MEMBERS OF THE OZO TITLE SOCIETY OF ENUGU-NGWO – Appellant
AND
AGU OGBODO AND THIRTY-SIX OTHERS OF ENUGU-NGWO – Respondents
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ORIGINATING COURT(S)
Appeal by plaintiffs from an interlocutory order by the Supreme Court, Enugu Judicial Division
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REPRESENTATION
L. N. Mbanefo — for Appellants
Aniagolu — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
CUSTOMARY LAW AND PROCEDURE:- Claim for various items of domestic livestock and agricultural produce as damages for breach of native custom by beating the Igede drum — Suit before a Native Court — Where Native Court bench deemed too involved in the matter to be able to give an unprejudiced judgment — Order of transfer of suit to another tribunal — When deemed to be effective — Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Transfer of suits — Native Courts Ordinance, section 28(1)(c) — Effect of order of transfer — Proceedings in Native Court after order made but before receipt thereof
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CASE SUMMARY
Section 28(1)(c) provides that:-
“(1) Every Resident and district officer shall at all times have access to Native Courts both of first instance and of appeal in his province or division, as the case may be; and may of his own motion or, in his absolute discretion on the application of any person concerned …
“(c) order the transfer of any cause or matter either before trial or at any stage of the proceeding to another Native Court or to a Magistrate’s Court or to the Supreme Court:-
“Provided that no cause or matter which has been transferred by the Supreme Court or a Magistrate’s Court to a Native Court may be transferred under this sub-section to the Supreme Court or to the same or any other Magistrate’s Court.”
The plaintiff, for himself and others, sued the defendants in the Native Court, but before the day of hearing the Senior District Officer made an order transferring the suit to the Supreme Court. The Native Court not having been informed by that officer of his order, heard the suit and gave judgment for the plaintiffs. In the Supreme Court the plaintiffs argued that the order of transfer was not effective to stay the proceedings in the Native Court as it had not been communicated by the administrative officer to that Court before the action was determined, and asked the Judge to strike out the suit; but this the Judge refused to do, and the plaintiffs appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
The order of transfer operated immediately it was made and effectively to divest the Native Court of its jurisdiction to hear and determine the suit and to vest such jurisdiction in the Supreme Court: the proceedings and the judgment in the Native Court after the order was made were a nullity.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
This is an appeal by special leave from the refusal of the Supreme Court, Enugu Judicial Division to strike out, on the application of the plaintiff-appellant, a suit which had been transferred for hearing from the Ukanu-Ngwo Native Court to the Supreme Court by order of the Senior District Officer, Udi.
According to his motion paper the appellant’s application was based on the contention that the order of transfer was null and void in that as the suit had already been heard and determined by the Native Court at the time the order for transfer was made, sub-section 1(c) of section 28 of the Native Courts Ordinance (Cap. 142), the sub-section by virtue of which the order is expressed to be made, was not the appropriate section. That sub-section provides “that … a District Officer … may … order the transfer of any cause or matter either before trial or at any stage of the proceedings to another Native Court or to a Magistrate’s Court or to the Supreme Court.”
There is an error in the affidavit in support of the application. It states that the suit was determined by the Native Court on 25th January, 1952 whereas in fact there was a hearing on the 25th February, 1952 on which date the Native Court purported to deliver its judgment. As stated already the Senior District Officer made his order of transfer on the 20th February, i.e. five days before the Native Court delivered its judgment. In consequence of this mistake, counsel for the appellant was obliged in the Court below to abandon his original ground and to argue that the order for transfer was not effective to stay the proceedings in the Native Court as it was not communicated by the Senior District Officer to the Native Court before the action was determined on the 25th February, 1952. The matter arises in this way.
On the 15th day of February, 1952 a writ of summons issued out of the Native Court or Judicial Council of Ukana-Ngwo on the plaint of certain persons who claim to be members of the Ozo Title Society of Enugu-Ngwo against thirty-seven defendants claiming various items of domestic livestock and agricultural produce as damages for breach of native custom by beating the Igede drum. The return date of the writ was the 18th February, on which day thirteen out of the thirty-seven defendants attended the Court. The hearing was adjourned till the 25th February on the defendants’ application. On the 20th February the Senior District Officer ordered the transfer of the suit, giving as the reason for transfer that “the Ukana-Ngwo Native Court bench are too involved in this matter to be able to give an unprejudiced judgment”.
On the 25th February the defendants were not present in the Native Court when the action was called on. It is recorded that the twelfth defendant had written to the Court asserting that the Senior District Officer had transferred the case to the Supreme Court. The Native Court then ordered the hearing to proceed observing, in effect, that the allegation of the twelfth defendant must be disregarded and that it was for the Senior District Officer if he had transferred the snit to inform the Native Court of his order.
The action was then heard in the absence of the defendants and judgment was entered for the plaintiffs for the full damages claimed.
In seeking to get rid of the order of transfer so that the judgment of the Native Court in the appellant’s favour may be operative, Mr. Mbanefo for the appellant has again submitted that notice, by which I understand him to mean notice and proof of notice to. the Native Court, is essential to make effective an order of transfer and he is compelled to argue that if through any circumstance the order, although made on the 20th February, was not brought officially to the notice of the Native Court before the suit was determined, the judgment could not in law be a nullity while the order of transfer of which notice had not been given would be null and void.
No doubt it is the practice for an order of transfer to be communicated as early as possible to a Native Court; it seems only reasonable that this should be done so that Court and parties may not be put to undue labour and expense, but the conclusive answer to the appellant’s submission is that nowhere in the Native Court, Ordinance (Cap. 142) is it required that communication or notice of the order of transfer shall be given. Such a prerequisite to an order’s validity might in many instances defeat the object of section 28.
The effect of the order of transfer made in this matter on the 20th February is I think rightly stated by the learned Judge in the ruling appealed from. In my opinion the order like an injunction operated immediately it was made and effectively to divest the Native Court of its jurisdiction to hear and determine the suit and to vest such jurisdiction in the Supreme Court.
By his letter the twelfth defendant was in effect protesting against the jurisdiction of the Court on the 25th February,1952. Unfortunately the plaintiffs chose to proceed with the hearing. If the defendants had been present and had even taken part in the hearing on the 25th February the proceedings and the judgment would still have been, as they are, a nullity, as the Native Court was then acting without jurisdiction. There is no error in law nor misdirection in the ruling appealed from and I would therefore dismiss this appeal with costs.
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VERITY, C. J.
I concur.
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JIBOWU, J.
I concur.
Appeal dismissed.