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S. M. TIMITIMI AND OTHERS
V.
CHIEF AMABEBE AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
28TH DAY OF NOVEMBER, 1953
W.A.C.A. NO. 159/1953
2PLR/1953/89 (WACA)
OTHER CITATION(S)
2PLR/1953/89 (WACA)
(1953) XIV WACA PP. 374-378
LEX (1953) – XIV WACA 374-378
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BEFORE THEIR LORDSHIPSS:
VERITY, C.J., NIGERIA
COUSSEY, J.A.
DE COMARMOND, S.P.J., NIGERIA
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BETWEEN:
1. S. M. TIMITIMI
2. T. AMARAN
3. S. AMARAN
4. YEFAOWEI
5. TINBOPRE
6. W. AKENE
7. IKPEBIRI
FOR THEMSELVES AND AS REPRESENTING THE PEOPLE OF KAIAMA – Appellants
AND
1. CHIEF AMABEBE
2. CHIEF ZIDIRI AMABEBE BOTH OF OKOTIAMA – Respondents
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ORIGINATING COURT(S)
Appeal by the defendants
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REPRESENTATION
J. E. C. Davul — for Appellants
Udo Udoma — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Title of land — Evidence of the judgment of an inferior court which was wrongly admitted — Whether can found the basis for establishing the plaintiffs’ title to the land
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PRACTICE AND PROCEDURE ISSUE(S)
JURISDICTION:- Distinction between competency and irregularity or error of law or fact — Inferior Courts — Native Courts — Court unlawfully constituted — Implication for competency of court
EVIDENCE:- Judgment delivered by Court without jurisdiction admitted but not affecting decision of case — Evidence Ordinance, section 52; section 225(1) — Legal effect
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CASE SUMMARY
Section 52 provides that:-
“Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under section 48, 49 or 50 and which has been proved by the adverse party, was delivered by a Court without jurisdiction, or was obtained by fraud or collusion.”
(On section 225(1), which is not cited in the judgment, see the Editor’s Note below the Cases cited.)
At the trial the plaintiffs tendered a judgment of a Native Court, to which the defendants objected that the Court, contrary to law, was presided over by an administrative officer; but the trial Judge admitted it on the ground that it was a subsisting judgment not appealed against and it was not open to him to declare it a nullity.
It was argued in the defendants’ appeal that that judgment must have influenced the Judge in deciding the case; but from the Judge’s judgment in this case it appeared that he did not rely on it as establishing the plaintiffs’ claim. There was evidence of their ownership and long exclusive possession-other judgments, their own oral evidence and also that of neighbouring owners on all sides of the disputed lands.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
(1) The Native Court was unlawfully constituted, therefore it had no jurisdiction, and its judgment was a nullity.
(2) An inferior Court, such as a Native Court, is not presumed to have any jurisdiction but that which is expressly provided; the party against whom the judgment was offered in evidence could, under section 52 of the Evidence Ordinance (Cap. 63), establish the invalidity of the judgment by showing that the Court from which it emanated had no jurisdiction.
(3) It was clear, however from the decision under appeal that the trial Judge did not regard the judgment of the Native Court which was wrongly admitted as establishing the plaintiffs’ title to the land but founded his decision in their favour on a sound body of other evidence.
(4) Per curiam: A Court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein: There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competency: where there is no jurisdiction the proceedings are void; but where a Court of competent jurisdiction makes an erroneous order, it is appealable. An irregularity in the exercise of jurisdiction should not be confused with a total lack of jurisdiction, as, for example, where the adjudicating body was so composed that it had no power or authority whatever to hear and determine the suit, was the case of the Native Court whose judgment put in evidence in the Court below.
(Editor’s Note: on (3) above: This being a Nigerian case, section 225(1) of the Evidence Ordinance (Cap. 63), may be referred to: it provides “The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case was it shall appear to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”)
Cases cited:-
(1) Kwesi Kwaa v. Kofi Kwaltwa, 3 W.A.C.A. 176.
(2) In re Padstow Total Loss a Collision Assurance Association, 20 Ch. D. 137.
(3) Nana Tawiah III v. Kwasi Ewudsi, 3 W.A.C.A. 52.
(4) Akosua Otwiwa and Another v. Adjoa Kwaseho, 3 W.A.C.A. 231.
(5) Henry Ofori v. William Anka, W.A.C.A., 8th March, 1950.
(6) Chapman and Another v. C.F.A.O., 9 W.A.C.A. 181.
(7) Re Clarke, 2. Q.B. 634.; 57 R.R. 741.
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MAIN JUDGMENT
The following Judgment was delivered:
COUSSEY, J. A.
In the course of the plaintiffs’ evidence in this action, in which they claimed, as representing the Ngbelewari family of Okotiama, Brass Division, a declaration of title to three lands and adjoining fishing waters situate at Okotiama and damages for trespass and an injunction, the proceedings and judgment in the Gbaran Native Court in-consolidated suits 64/68 of 1937 entitled Waya Egbebulu for himself and the people of Kaiama v. Amabebe of Okotiama, in which the predecessors of the present defendants-appellants claimed unsuccessfully from the first plaintiff-respondent Chief Amabebe a declaration of title in respect of the same lands and waters, were tendered in evidence.
Objection was taken by counsel for the defendants-appellants to the admissibility of these proceedings, on the ground that the authority of a district officer to preside in the proceedings in the Native Court upon the order of a Resident, first provided for by Order No. 19 of 1934, had been revoked by Order No. 13 of 1942, before October, 1943, when the Resident, in an appeal before him, set aside a previous judgment of the Native Court which had been presided over by another district officer and, by the said order, appointed Mr. Geoffrey Horne, assistant district officer to be president of the Native Court in the re-hearing of the case. The learned trial Judge observed in over-ruling the objection, that the judgment given by Mr. Horne in 1944 appeared to be affected by Order No. 13 of 1942 (to what extent however he did not consider at the time) but, he held “that is not the point I am to decide. The point at issue is, is that judgment which still subsists, admissible in evidence? The question is, is this Court competent to go into the facts of the judgment in a case decided in 1944 which went on appeal and was upheld? Can this Court now declare the proceedings null and void? So long as the document sought to be put evidence is a judgment of a Court, certified as such, my duty is to admit it in evidence”. The proceedings were admitted in evidence as exhibit “B”.
Later in the judgment of the Court, the learned Judge dealt as follows with the admissibility of these proceedings:-
“(2) After the judgment of Mr. Carter in the case in 1943, could the Resident in his appellate jurisdiction order that the case be heard again de novo with another administrative officer, Mr. Horne, as president of the Court in view of No. 13 of 1942 which lays it down that administrative officers are not to sit as president in Native Courts? To my mind the argument that the Resident’s order is invalid is not without weight in view of the law (No. 13 of 1942) subsisting at the time.
“(3) Whether or not the Resident’s order was valid, it was carried out; Mr. Horne sat, and that Court gave judgment against which there was an appeal (not on the matter of jurisdiction); the judgment was affirmed. It was accepted as such by the parties and the judgment subsists till today. That judgment has not been set aside and it has been acted upon up till now. Can I, then, in this action set it aside? I am of the view that as there is no appeal against that judgment (and there was a further right of appeal existing) nor is there a writ of prohibition that the judgment be not acted upon or an order by way of certiorari quashing the judgment, and the judgment still subsists, this Court cannot in another action set it aside or declare it a nullity.” The trial Judge referred facie to Kwesi Kwaa v. Kofi Kwakwa (1) in support of his view.
The admissibility of these proceedings and this passage of the judgment of the Court below are attacked by the defendants-appellants in their appeal to this Court on the grounds of misdirection and error in Jaw. We think it is unfortunate that the learned Judge did not grasp the nettle and hold that the Native Court was not properly constituted and its proceedings a nullity.
In the first place want of jurisdiction is not to be presumed as to a Court of superior jurisdiction; nothing is out of its jurisdiction, but that which special appears to be so. On the other hand an inferior Court, such as a Native Court is not presumed to have any jurisdiction but that which is expressly provided.
Jurisdiction, when used in the context we are considering it, means the power or authority to judge. A court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein. It must be remembered that jurisdiction derives from the Crown and in Nigeria is conferred, so far as affects Native Courts, by ordinances and orders constituting those Courts and giving them powers. Now at the time the resident ordered a re-hearing of the suit in the Gbaram Native Court he had power, by virtue of section 4(2) of the Native Courts Ordinance, to appoint from amongst its members a president and a vice-president of the Native Court which under section 4(1)(a) of that Ordinance shall consist of head chiefs or head chief, chiefs or chief and persons (who may include non-natives) or a combination of any such authorities and persons and sitting with or without assessors. In this context non-native does not include an administrative officer. The Native Court’s constitution and jurisdiction depends on its particular warrant.
The Resident’s order, therefore, in appointing the assistant district officer, Mr. Horne, to be president of the Native Court at a time when the power to do so had been expressly revoked by Order No. 13 of 1942, was ultra vires and the Native Court, so composed with Mr. Horne as its president, was not a Native Court established under section 4 of the Native Courts Ordinance. The proceedings and judgment of that body commencing on the 14th February, 1944, and terminating on the 17th June, 1944, were in our opinion Coram non Judice. It is observed that the judgment is the opinion of Mr. Horne with which the other members of the so-called Gbaram Native Court state they agree entirely and that his finding is chiefs and to be so regarded”. We are unable to accept the mission of learned counsel for the plaintiffs-respondents that Mr. Horne’s taking part in the proceedings without authority may have rendered proceedings irregular but not void. There is a distinction between an order or judgment which a Court is not competent to make and an order which, even if erroneous in law or in fact, is within the Court’s competency. In re Padstow Total Loss and Collision Assurance Association (2) decides that where then, is no jurisdiction the proceedings are void; but where a Court of competent jurisdiction makes an erroneous order, it is appealable.
There is along tine of decisions of this Court commencing with Nana Tawiah III v. Kwesi Ewudsi (3), Akosua Otuwiwa and Another v. Adjoa Kwaseko (4) to Henry Ofori v. William Anka (5) to the effect that where a Native Court is differently constituted on various occasions, the proceedings are a nullity. The present case is a more stilting nuisance, for Mr. Horne came in without authority to form an irregularly constituted body which had therefore no power to adjudicate. For these reasons we hold that the proceedings and judgment in question are void and a mere nullity and of no probative force between the parties.
As to the other ground upon which the learned trial Judge admitted the proceedings and judgment in evidence, namely that it was a subsisting judgment and that the Court below could not set it aside or declare it a nullity, we do not think the decision in Kwan Kwaa v. Kofi Kwakwa (1) supports the view of the learned Judge. There it was held that a judgment of a Native Tribunal in respect of land could not subsequently be impeaching in another action brought in the same inferior court to set aside the judgment on the ground that the land in dispute lay outside the limits of the tribunal’s jurisdiction. The reasoning of the judgment in that case, unlike the present case, is that the judgment had been regularly obtained. The plaintiff-respondent relies also on Chapman and Another v. C.F. 4 .0. (6), a case in which the defendant pleaded as res judicata against the plaintiff’s claim, a judgment of the Native Tribunal. The Court of first instance had held that the plea was not good because the judgment was a nullity in that it was given by a set of councillors all of whom had not heard the evidence. The Appeal Court, on that part of the case, held that the judgment stood as there had not been an appeal from it but that on other grounds it did not operate as res judicata. In that case there was irregularity in the exercise of jurisdiction but not a total lack of jurisdiction.
Chapman’s case (6) is distinguished from the present case where the adjudicating body was so composed that it had no power or authority whatever to hear and determine the suit. The plaintiff tendered the proceedings and judgment, exhibit “B”, as constituting one of his muniments of title to the land. Although the Court below could not set aside the proceedings and judgment of the Native Court, yet when the matter came before the Court in the ordinary course of its jurisdiction und the plaintiffs relied upon them, then in that way, the jurisdiction of the Native Court whose proceedings wore pleaded by the plaintiffs-respondents could be enquired into and pronounced upon. The party against whom it was offered in evidence could establish its invalidity by showing that the Court from which it emanated had no jurisdiction – Re Clarke, (7) and section 52, the Evidence Ordinance (Cap. 63).
If the evidence of a witness were given in proceedings before a magistrate who had no jurisdiction and which was thus pronounced to be coram non judice, we apprehend that such evidence could not be used for any purpose on a re-trial before a competent Court, therefore, holding as we have done that exhibit “B” is a nullity and that the trial Judge should have so ruled it has never existed and could not and should not have been admitted in evidence by the Court below. As to the remaining issues in the appeal the defendants-appellants contend that if exhibit “B” is held to be inadmissible there should be a new trial because exhibit “B” must have influenced the mind of the trial Judge so that without it, as the foundation for the oral testimony of the plaintiffs-respondents, it cannot be said with certainty whether the learned Judge would have exercised a discretion in the plaintiffs’ favour or have dismissed the claim. This submission, which is based on the ground of appeal that the judgment is against the weight of evidence, leads to the enquiry, was the learned Judge influenced in his estimate of the oral evidence and other evidence by a consideration of exhibit “B” which we have held ought not to have been dealt with as part of the plaintiffs-respondents’ case. In other words, how far has exhibit “B” propped up the case?
Early in his judgment the learned Judge observes that the plaintiffs relied on the judgment exhibit “B” and he proceeds,” The case was finally determined in 1944 and the land was awarded to the first appellant (respondent) and his people”. This of course is not the correct effect in law of exhibit “B”. When, however, the learned Judge applied himself more closely to this judgment he said “the judgment declared that they (the present defendants (appellants)) are not the owners of the land but that the defendants (the present plaintiffs (respondents)) are the owners. There was no need it would appear to have made a declaration in favour of the then defendants (present plaintiffs (respondents)) because they did not seek a declaration. All that the judgment has establishing therefore is that the present defendants (appellants) are not owners of the land. It does not necessarily establish ownership in the present plaintiffs (respondents) although it may strengthen greatly their claim to the ownership of the land.
It is clear, we think, from this passage that the trial Judge did not regard exhibit “B” as discharging the onus which lay upon the plaintiffs-respondents of establishing their title to the land. That this is so is borne out by the learned Judge’s approach to the rest of the case. He continues: “I will now consider shortly the case on the evidence laid before me.” In the summary of the evidence that follows exhibit “B” is not reverted to. The judgments in three cases, exhibits “C”, “D” and “E”, which resulted in the plaintiffs-respondents’ favour are reviewed and the learned Judge assesses them in the passage, “Although these judgments do not establish ownership of the land in dispute in the plaintiffs they serve however to show they were in possession all the time and never lost their possession of the land”.
We have not overlooked that exhibit “C1” shows that the judgment in exhibit “C” on appeal resulted in the plaintiffs-respondents being non-suited but that fact does not, in our opinion, affect the only weight the trial Judge attached to it, namely the continued possession of the plaintiffs-respondents.
Not only did the plaintiffs-respondents prove that they had exercised, exclusively, proprietary rights over the land for many years as owners but the neighbouring owners on all sides of the disputed lands testified that their bouundaries are with the plaintiffs-respondents and not with the defendants-appellants, and this Willi accepted by the Court as the truth.
The record shows that at the hearing the first defendant-appellant, S. M. Timitimi, was cross-examined as to certain statements made in the Resident’s Court when the suit in exhibit “B” was on appeal but those isolated answers would not affect the mind of even an ordinary person against the defendants-appellants’ case.
Excluding exhibit “B” from consideration we still have no doubt whatever that there is the amount of proof by the plaintiffs-respondents which would satisfy an unprejudiced mind beyond reasonable doubt that the plaintiffs-respondents did discharge the onus upon them and that they were entitled to the judgment of the Court. The appeal is accordingly dismissed with costs, £34 13s. 0d.
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VERITY, C. J.
I concur.
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DE COMARMOND, S. P. J.
I concur.
Appeal dismissed.
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