–
ALU EKO OF ORA
V.
UHERE UGWUOMA AND OTHERS OF AMAOZARA
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
29TH DAY OF OCTOBER, 1940
2PLR/1940/28 (WACA)
OTHER CITATION(S)
2PLR/1940/28 (WACA)
(1940) VI WACA PP. 206 – 207
LEX (1940) – VI WACA PP. 206-207
–
BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST (GHANA)
GRAHAM PAUL C.J., SIERRA LEONE
–
BETWEEN
ALU EKO OF ORA — Plaintiff-Appellant
AND
UHERE UGWUOMA AND OTHERS OF AMAOZARA — Defendants-Respondents
–
REPRESENTATION
Wells Palmer with Mbanefo — for Appellant
A. Adeshigbin — for Respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — SHARING OF RENT MONEY:- Land communally owned/held by two different communities — Where two separate leases of equal considerations executed by same party — Where each of the two leases executed in name of one community and consideration collected thereof paid to that community — Cancellation of one of the leases — Whether entitled that community automatically to half share of the subsisting lease
–
PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Appeal against a judgment of the High Court allowing an appeal from the Magistrate’s Court — Question of res judicata of a matter previously tried by a Native Court — How treated by appellate court(s)
–
DECISION OF THE COURT OF APPEAL
Held:
The Magistrate was correct in holding that the previous judgment of the Native Court established res judicata in the matter before him. Appeal allowed Magistrate’s judgment restored.
–
–
MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
The facts involved in this Appeal are very simple. The history of the litigation about these facts is also simple and a short statement of the facts and the history of the litigation at once disposes of the Appeal.
In 1909 apparently two Leases were executed in favour of the Governor of Nigeria, one being granted by or on behalf of the Ora people (Appellants) and the other by or on behalf of the Amaozara people (Respondents). In 1933 the Lease granted by the Ora people was terminated by the grantee. That was the beginning of the differences between the parties.
The Ora people contended that although separate Leases were granted the land in each Lease was the communal property of Ora and Amaozara and that the execution of two Leases was only a convenient way of giving each party £5 a year, half of the total rent of the communal land. Consequently on the termination of their Lease the Ora people claimed half of the £5 rent under the subsisting Lease granted by the Amaozara people. This claim was opposed by the Amaozara people and litigation resulted.
The first litigation on this account was No. 100 of 1933 brought in the Minor Court of Ozizza. This was a “criminal” charge brought by the Ora people against the Amaozara people— the charge being “unlawfully making use of public money £5 and not giving share to Plaintiff and others since two months ago”.
The majority of the elders decided that criminal case in favour of the complainant but the District Officer reviewed it dismissing the complaint but adding as a rider that “Ora can take action for non-compliance with the instruction of the elders if it is in accordance with native law and custom that Ora and Amaozara should share”.
The Ora people then brought another criminal charge in the Ozizza Minor Court against the Amaozara people–the charge being “Refusing to obey the decision of the elders.” The defendants pleaded guilty and were fined as well as ordered to pay the share of rent over. This judgment was however quashed by the District Officer on review.
The Ora people then brought a civil claim in the Clan Court of Afikpo calling upon the Amaozara people to show cause why they should not share the £5 rent. The judgment in that case (No. 27/1934) was as follows:
“Judgment for Plaintiff.
Defendants to bring out the said £5 and share it equally with Plaintiff — i.e. £2 10s, each and to be doing so yearly whenever the rent is paid”.
That judgment still stands. It is not suggested that the Clan Court of Afikpo was not a Court of competent jurisdiction. It is admitted that there has been no appeal from that judgment and that the case in which it was given was not transferred to the Magistrate’s Court.
It is true that there were further claims made by the Ora people in the Afikpo Clan Court but these were of the nature of judgment debtor summonses and were in the “criminal” jurisdiction of the Clan Court. Those criminal or quasi-criminal cases were transferred to the Magistrate’s Court. The Magistrate decided them in favour of the Ora people on the ground of res judicata. On appeal to the High Court the Magistrate’s judgment was upset and against the High Court judgment the Ora people have appealed to this Court.
The judgment in Suit 27/1934 was put in evidence Ex. Di but the Court below refused to give effect to it apparently for the reason that it appeared to be inconsistent with the terms of the Deed of Lease. That of course is not an adequate reason for refusing to give effect to a judgment of a Court of competent jurisdiction.
The question in issue between the parties is clearly res judicata by virtue of the judgment of the Afikpo Clan Court in Suit 27/1934 dated 24th February, 1934 and that judgment stands to-day determining that the rent of £5 must be shared equally between Ora and Amaozara every year as it is paid. The Ora people are entitled to payment of all unpaid arrears of their annual share of £2 10s. since 24th February, 1934 and to regular payment of that share during the currency of the Lease.
The appeal is allowed, the judgment of the Court below is set aside in toto and the decision of the Magistrate limited Powers of 3rd February, 1939 is restored. Any payments made by the Appellant under the Order of the Court below are to be repaid by The Respondents. The Appellant is awarded costs in the Court below assessed at five guineas and in this Court assessed at fifty guineas.
–