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[CONSOLIDATED SUITS]
CHIEF OKPARAEKE OF NDIAKAEME, ETC.
V.
OBIDIKE EGBUONU AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
8TH DAY OF MAY, 1941
2PLR/1941/26 (WACA)
OTHER CITATION(S)
2PLR/1941/26 (WACA)
(1941) VII WACA PP. 53 – 55
LEX (1941) – VII WACA PP. 53 – 55
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN [CONSOLIDATED SUITS]
CHIEF OKPARAEKE OF NDIAKAEME, ETC. – Plaintiffs-Respondents
AND
OBIDIKE EGBUONU AND TWENTY-ONE OTHERS OF NDIOGBUONYEOMA QUARTERS, ETC. – Defendants-Appellants
AND
CHIEF OKAPARAEKE AND UKABAM OF NDIAKEME, ETC. – Plaintiffs-Respondents
AND
DAVID ENWEREKOBE AND NINE OTHERS OF NDIZUOGU, ETC. – Defendants-Appellants
AND
OKAMIGBO ON BEHALF OF HIMSELF AND THE NDIOGBUONYOMA COMPOUND OF NDIZUOGU IN OKIGWE– Plaintiffs-Appellants
AND
OKPARAEKE AND UKABAM OF ONYEBUCHI FAMILY OF NDIAKAEME NDIZUOGU – Defendants-Respondents
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REPRESENTATION
S. B. Rhodes — for Respondents
C. W. Clinton — for Appellants
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Ownership of land —Judgments by Native Courts — Question of res judicata — Native Court’s judgments suspended by Assistant District Officer — Identity of land — Where had been agreed and should have been accepted without proof — Legal implication
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- Question as to the effect of prior existing judgments disclosed in pleadings — Res Judicata — Duty of court to resolve same as a question of law before going into the merits of the general evidence given in the case
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal as judgments by Native Courts had never been re-instated):
The question as to the effect of the orders of Messrs. Leeming and Jones was a question of law which appeared from the pleadings and in our opinion it would have been better if the Court below had decided the question of law arising on the res judicata pleas of both parties as a preliminary point before going into the general evidence of the merits of the claim and defence so that at the outset of the trial on the merits the parties and the Court would have known the exact position as regards the pleas of res judicata and therefore the exact issues to be tried.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J. NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J. SIERRA LEONE.
In this appeal the appellants’ counsel, after exhaustive argument, finally confined his appeal to one ground only namely that the question in dispute between the parties—the ownership of a piece of land in Okigwi District—was res judicata in favour of the appellants by virtue of to judgments of the Native Court of Uruala given respectively in cases No. 66/1933 and 67/1933.
In our opinion this contention fails because, in our view, both the judgments in question were suspended by Mr. Leeming, the Assistant District Officer in charge of the division, by orders made on the 29th June, 1933, and have never been re-instated.
At that time his powers were prescribed by section 17 of the Native Courts Ordinance (Cap. 5) as amended by Ordinance No. 12 of 1930. They included powers to “suspend … annul or otherwise modify any … decision of a Native Tribunal.”
In order to get a true picture of the actual proceedings in the Native Court it is necessary to refer, as we have done, to the original Native Court Record Books; the typescript record is misleading.
The orders Mr. Leeming made were
In case No. 66/1933.
“Case remitted to the Amala of Ndizuogu to enquire into the matter and then give evidence to the Court.”
“Re-open for evidence of Amala as in case 66/33.”
Although it is true that neither of these orders specifically suspended the two judgment, it was, in our view, clearly the intention and the effect of the orders to suspend the judgments pending enquiry and evidence by the Amala. In pursuance of the orders the Amala made the necessary enquiries and the Court sat to hear the evidence of the 17th July, 1933, when the two cases were “combined.” The Amala gave evidence, which was, with the exception of one, unanimously in favour of the respondents in this appeal, and thereupon the Court made the following pronouncement.
“If the people of Ndiogbuonyeoma are not satisfied with the evidence of the Amalas of Ndizuogu they may appeal to the District Officer. One man, Ekwebara disagreed with the evidence of the Amalas, hence the Court did not arrive to a steady judgment. The whole matter is still confusing vide the evidence of Ekwebara.”
That, in our view, is the only judgment (if it can be called a judgment) of the Native Court of Uruala, now standing in regard to the land in dispute. It certainly has not the effect of restoring either of the suspended judgments and it does not operate as res judicata in the appellant’s favour.
Thereafter Mr Jones, another Assistant District Officer in the Division, but not in charge thereof, made a further order beginning “Judgment upheld.”
But by that word, judgment, he did not mean either of the suspended judgments, nor did he mean the Court’s pronouncement just quoted. He meant the opinion of the majority of the Amala. That opinion was not a judgment at all and whatever effect (if any) Mr Jones’ order may have had it certainly did not have the effect of restoring the original judgments relied upon by the appellants.
Thereafter again orders were made by the Acting Resident of the Province ordering the two cases to be transferred from Uruala Native Court to the Provincial Court to be heard de novo, and this was done, but on appeal this Court pronounced these orders to be of no effect and declared all the proceedings resulting therefrom to be a nullity. This court then stated that the effect of its order was “to restore the judgments of the Native Tribunal in the combined cases 66/1933 and 67/1933 in the Uruala Native Court as finally reviewed.” This did not refer to the original judgments now relied upon by the appellants and did not have the effect of re-instating them.
For these reasons that appeal must fail. But before leaving the matter we think it desirable to point out that in our view the learned trial Judge was wrong to go into the question of whether the land now in dispute is the same as that in the dispute in the Uruala Native Court in 1933, and to find that identity was not proved. The identity was one of the agreed facts in the case, it was relied upon by both parties in their pleadings by ascertaining what facts are agreed so that evidence need not be led to prove them, the Court should have accepted this agreed fact as established without proof.
We may add that the question as to the effect of the orders of Messrs. Leeming and Jones was a question of law which appeared from the pleadings and in our opinion it would have been better if the Court below had decided the question of law arising on the res judicata pleas of both parties as a preliminary point before going into the general evidence of the merits of the claim and defence so that at the outset of the trial on the merits the parties and the Court would have known the exact position as regards the pleas of res judicata and therefore the exact issues to be tried.
The appeal is dismissed with costs assessed at 100 guineas.
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