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APENA OF IKENE
V.
SHONUSI OF IKENE
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
30TH DAY OF APRIL, 1943
2PLR/1943/13 (WACA)
OTHER CITATION(S)
2PLR/1943/13 (WACA)
(1943) IX WACA PP. 148 – 151
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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:
APENA OF IKENE — Plaintiff-Appellant
AND
SHONUSI OF IKENE — Defendant- Respondent
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ORIGINATING COURT(S)
HIGH COURT OF THE IBADAN JUDICIAL DIVISION
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REPRESENTATION
E. J. Alex Taylor — for Appellant
I. E. C. David — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
AGRICULTURE AND FOOD LAW – CULTIVATION OF LAND:- Claim for an injunction to restrain the defendant from cultivating a farmland — How treated
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PRACTICE AND PROCEDURE ISSUE(S)
APPEAL:- Appeal from Native Court to Protectorate Court — Order for re-hearing under Native Courts Ordinance sec. 36(1)(b)— Implied Order setting aside judgment of Native Court.
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CASE SUMMARY
In the Native Court judgment was in favour of the plaintiff. On appeal to the Magistrate’s Court, the Magistrate made an order under section 36 of the Native Courts Ordinance for a re-hearing de novo in his Court. The case was subsequently transferred for trial to the High Court, where the Judge in dismissing the plaintiff’s claim made an order setting aside the judgment of the Native Court.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:– The order for re-hearing made by the Magistrate set aside the judgment of the Native Court and the Order of the Judge to that effect was redundant.
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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
These proceedings originated in the Ijebu Remo Native Court in 1937 by writ in which plaintiff claimed an injunction to restrain the defendant from cultivating Ilu Cemetery, Ite farmland. On the 30th June, 1938, the Native Court gave judgment in favour of plaintiff. Defendant filed a petition of appeal in the Court of the Magistrate of the Ibadan Division. Counsel on both sides agreed that on account of unsatisfactory nature of the record and grounds of appeal the case should be heard de novo by that Court and the Magistrate made an order under section 36 (1) (b) of the Native Courts Ordinance (No. 44 of 1933) for the case to be re-heard by that Court. Subsequently the Chief Judge by order dated 28th December, 1940, ordered the proceedings to be transferred from the Magistrate’s Court to the High Court of the Ibadan Judicial Division for hearing.
The plaintiff filed an amended writ in the High Court claiming on behalf of himself and the Ikene people against the defendant for himself and on behalf of the Mese family of Ikene a declaration of title to all that piece or parcel of land known as Igbo He situate and being at Shagamu Road, Ikene in the Ijebu Province.
The area in respect of which the declaration of title was sought is that edged red on the plan Exhibit “A” which was put in in the Court below. At the trial the defendant did not dispute that the area within the old town wall (ruins) shown on the plan belonged to the plaintiff.
Although there were pleadings and the action was conducted up till the close of the defendant’s case as though it was a re-hearing it appears that the trial Judge then became doubtful whether he was hearing (a) an appeal, or (b) a trial de novo. He came to no decision on the point until the delivered judgment. In his judgment the trial Judge after examining the contentions of both sides stated, in effect, that the plaintiff had failed to establish his claim to a declaration of title and he therefore dismissed it. In the concluding paragraph of his judgment the Judge stated
“Having thus disposed of the re-hearing I can now deal with the matter as an appeal. The result is that the appeal is allowed and it is ordered that the judgment of the Native Court be set aside and in its place judgment dismissing the plaintiff’s claim be entered.”
In our opinion the procedure adopted was wrong. The result of the order made by the Magistrate under section 36(1)(b) of the Native Courts Ordinance, 1933, for the case to be re-heard was that the judgment of the Native Court was set aside. When the cause was subsequently transferred to his Court all that remained to be done by the Judge was to hear the cause and pronounce judgment.
The procedure adopted by the trial Judge is not one of the matters relied on in the grounds of appeal. The first of these grounds has been abandoned. The second and third grounds can be considered together. They both concern the weight of evidence.
After very carefully considering all the evidence before the trial Judge we find ourselves unable to come to the conclusion that the trial Judge did not give sufficient weight to the evidence adduced by the plaintiff or that the judgment was against the weight of evidence. Before the Judge could grant the declaration sought he had to be satisfied that the plaintiff had established a case for the declaration sought. He came to the conclusion that this had not been done and we find ourselves quite unable to hold that he was wrong in so doing.
The trial Judge has made it quite clear that his judgment does not mean that he has made a declaration of title for the defendant and he has not done so.
The appeal is dismissed. The judgment of the Court below is maintained in all respects except the order that the judgment of the Native Court be set aside and in its place judgment dismissing the plaintiff’s claim be entered” which is set aside, on the ground that the judgment of the Native Court had already been set aside by the order of the Magistrate dated the 1st November, 1939.
The respondents are awarded the costs of this appeal assessed at 15 guineas.
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