Appeal Court, 29th Oct., 1940.

Appeal against a judgment of the High Court allowing an appeal, from the Magistrate's Court-question of res judicata of a matt, previously tried by a Native Court.

Held: The Magistrate was correct in holding that the previous judgment ~ the Native Court established res judicata in the matter before him. Appeal allowed Magistrate's judgment restored.

There is DO Deed to set out the facts.

Wells Palmer (Mbanefo with him) for Appellant.

A. Adeshigbin for Respondents.

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 one disposes of the Appeal.

In 1909 apparently two Leases were executed in favour of t Governor of Nigeria, one being granted by or on behalf of the people (Appellants) and the other by or on behalf of the Amaoza people (Respondents). In 1933 the Lease granted by the 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 0 and Amaozara and that the execution of two Leases was only convenient way of giving each party £5 a year, half of the tot rent of the communal land. Consequently on the termination of their Lease the Ora people claimed half of the £5 rent under t~ subsisting Lease granted by the Amaozara people. This claim w 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 an 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 .t5 rent. The judgment in that case (No. :n (1934) was as follows :-

.. Judgment for Plaintiff. Defendants to bring out the said £5 and ~hare 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 t hem 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.D1 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 :!4th February, 1934 and that judgment stands to-day determining that the rent of £5 must he 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 £:! 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, 19:19 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 belo\\' assessed at five guineas and ill this Court assessed at fifty guineas.