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NDALAKU OCHONMA
V.
GEORGE FRANCIS QUAGRAINE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
3RD DAY OF APRIL, 1951
2PLR/1951/43 (WACA)
OTHER CITATION(S)
2PLR/1951/43 (WACA)
(1951) XIII WACA PP. 184-185
LEX (1951) – XIII WACA 184-185
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BEFORE THEIR LORDSHIPS:
VERITY, C.J., NIGERIA
LEWEY, J.A.
DE COMARMOND, J.
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BETWEEN:
NDALAKU OCHONMA – Plaintiff-Appellant
AND
GEORGE FRANCIS QUAGRAINE (Substituted for ISAAC QUAGRAINE) – Defendant-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV.APP.3326.
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REPRESENTATION
Chuba Ikpeazu — for the Appellant
ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
Transfer by District Office, under section 25(1)(c) of the Native Courts Ordinance wrongly exercised – Variation of order by District Office, at request of Judge of Supreme Court by substituting section 25(1)(b) for section 25(1)(c) – Such amendment does not convert order of transfer to an order setting aside judgments of the Native Courts – Proceedings before Supreme Court a nullity.
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CASE SUMMARY
The appellant instituted proceedings in the Native Court of Onitsha and was successful. The respondent appealed to the Native Court of Appeal and his appeal was dismissed. The District Officer, Onitsha, purported to transfer the case to the Supreme Court under section 25(1)(c) of the Native Courts Ordinance, 1933.
During the hearing before the Supreme Court it appeared to the Court that the order of transfer was null and void and, with the consent of Counsel, the Judge decided to request the District Officer to amend his order by substituting section 25(1)(b) for section 25(1)(c) and the successor to the District Officer some six months after the original order made an amendment as requested. The Supreme Court found in favour of the respondent and appellant appealed to this Court arguing that the proceedings before the Supreme Court were a nullity.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
1. There is no power for a District Officer to transfer a case after judgment and that the substitution of section 25(1)(b) for section 25(1)(c) did not convert the Order of Transfer to an order setting aside the judgments of the Native Courts.
2. The proceedings before the Supreme Court were a nullity.
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MAIN JUDGMENT
The following Judgment was delivered:
VERITY, C.J.
This is an appeal from a judgment of Manson, J., in the Supreme Court dismissing a claim for the respondent to quit certain premises alleged to be the property of the appellant.
The proceedings were commenced in the Native’ Court of Onitsha and the present appellant was successful. The present respondent appealed to the Native Court of Appeal and the appeal was dismissed. Subsequent to the determination of these proceedings the District Officer, Onitsha, made on the 15th July, 1949, an order transferring the case from the Onitsha Native Court, purporting to do so under section 25(1)(c) of the Native Courts Ordinance, 1933. During the hearing in the Supreme Court the fact that the case had been heard and determined in the Native Court and the Native Court of Appeal was brought to the notice of the learned Judge, to whom 1t then appeared that the Order of Transfer was null and void and that the case was not properly before the Supreme Court. The matter was adjourned for argument and at the next hearing the learned Judge proposed to request the District Officer to amend his order to one under section 25(1)(b) of the Ordinance. To this course Counsel agreed, and the learned Judge communicated with the District Officer, whose successor in office on some date subsequent to the 10th February, 1950, six months or more after the date of the original order, amended the order by substituting section 25(1)(b) for 25(1)(c) wherever the latter appeared therein.
The trial proceeded, the appellant’s claim was dismissed and she has appealed, alleging as grounds (inter alia) that the Supreme Court had no jurisdiction, the Order of Transfer being bad and ineffective and the proceedings in the Supreme Court therefore a nullity.
In fairness to Counsel I should add that he was not at the time of the proposal of the trial Judge appearing for the appellant and did not himself consent to the course which was followed and that when he appeared as Counsel later in the course of the hearing he did submit to the learned Judge that the case was not properly before the Supreme Court. In any event, however, there is no doubt in my mind that the matter goes to the root of the jurisdiction of the Supreme Court to entertain the claim and absence of jurisdiction is not a defect which can be cured by the consent of the parties.
It is clear from the terms of section 25(1)(c) as amended by Ordinance 8 of 1938 and reproduced as section 28(1)(c) in Cap. 142 of the Laws of Nigeria, 1948, that there is no power of transfer after judgment has been given in a Native Court, such power having been expressly taken away by the Ordinance of 1938.
The only question open to consideration in the present case is whether the difficulty was overcome by what purported to be the amending Order made by the District Officer six months later at the suggestion of the learned Judge. I do not think so. In the first place the exercise of the power of amending any order made sub-section (1) is restricted to a period within one month of the date of the order. But even if there had existed power to amend the mere substitution of a reference to sub-section (1)(b) in place of a reference to sub-section (1)(c) does not convert the Order from one of transfer to one setting aside the judgments of the Native Courts and ordering the case to be re-tried.
In my opinion, therefore, the Order of Transfer was not within the powers of the District Officer, no order for re-trial has ever been made and the case was never properly before the Supreme Court, the proceedings in which were therefore null. The appeal should therefore be allowed and the judgment in the Court below be set aside. The appellant to have his costs of this appeal fixed at £29 12s 5d. In view of the course taken at the hearing in the Court below and the consent of appellant’s Counsel thereto I would make no order as to costs in the Supreme Court.
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LEWEY, J. A.
I concur.
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M. DE COMARMOND, S.P.J.
I concur.
Appeal allowed.
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