Ownership of land-judgments by
Native Courts- Was question
Appeal
res judicata in favour of
Appellants ?-Native Court's
from
judgments suspended by Assistant
District Officer-Identity of
J
land had been agreed and should
have been accepted without
court
proof.
Held: Appeal diMl1Iissed as
judgments by Native Courts had
never beer, re-instated.
There is no need to set out the
facts.
S. B. Rhodes
for Respondent.
C.
W.
Clinton
for Appellents.
The following joint judgment was
delivered:-
KINGDON, C J . NIGERIA, PETRIDES,
C.J, GOLD COAST AND GRAHAM PAUL,
C.J., SIERRA LEONE.
In this appeal the appellants'
counsel, after exhaustive
argument, finally confined his
appeal to one ground only namely
t11i!t the question in dispute
between the parties-the
ownership of a. piece of land in
Okigwi District-was
res judicata
in favour of the appellants by
virtue of two judgments of the
Native Court of U ruala given
respectively in cases No.
66/1933 and 67/1933.
In our opinion this contention
fails because, in our view, both
the judgments in question were
suspended by Mr Leeming, the
Assistant District Officer in
charge of the Division, by
orders made on the 29th June,
1933, and have never been
re-instated.
At that time his powers were
prescribed by section 17 of the
Native Courts Ordinance (Cap. 5)
as amended by Ordinance No. 12
of 1930. They included powers to
" suspend .... annul or "
otherwise modify any ....
decision of a Native tribunal."
In order to get a true picture
of the actual proceedings in the
Native Court it is necessary to
refer, as we have done, to_ the
original Native Court Record
Books; the typescript record is
misleading.
The orders Mr Leeming made were
In case No. 66/1933
" Case remitted to the Amala of
Ndizuogu to enquire into •. the
matter and then give evidence in
Court."
and in case No. 67/1933
" Re-open for evidence of Amala
as in case 66/33."
Although it is true that neither
of these orders specifically
suspended the two judgment, it
was, in our view, clearly the
intention and the effect of the
orders to suspend the judgments
pending enquiry and evidence by
the Amala. In pursuance of the
orders the Amala made the
necessary enquiries and the
Court sat to hear their evidence
on the 17th July, 1933, when the
two cases were "combined." The
Amala gave evidence, which was,
with the exception of one,
unanimously in favour of the
respondents in this appeal, and
thereupon the Court made the
following pronouncement.
" If the people of
Ndiogbuonyeoma are not satisfied
with " the evidence of the
Amalas of N dizuogu they may
appeal to " the District
Officer. One man Ekwebara
disagreed with the " evidence of
the Amalas, hence the Court did
not arrive to a " steady
judgment. The whole matter is
still confusing vide " the
evidence of Ekwebara."
That, in our view, is the only
judgment (if it can be called a
judgment) of the Native Court of
U ruala, now standing in regard
to the land in dispute. It
certainly has not the effect of
restoring either of the
suspended judgments and it does
not operate as
res judicata
in the appellant's favour.
Thereafter Mr Jones, another
Assistant District Officer
in the Division, but not in
charge thereof, made a
further order beginning
" Judgment upheld." But by
that word judgment he did
not mean either of the
suspended judgments, nor did
he mean the Court's
pronouncement just quoted.
He meant the opinion of the
majority of the Amala. That
opinion was not a judgment
at all and whatever effect
(if any) Mr Jones' order may
have had it certainly did
not have the effect of
restoring the original
judgments relied upon by the
appellants.
Thereafter again orders were
made by the Acting Resident
of the Province ordering the
two cases to be transferred
from Uruala Native Court to
the Provincial Court to be
heard
de novo,
and this was done, but on
appeal this Court pronounced
these orders to be of no
effect and declared all the
proceedings resulting there
from .to be a nullity. This
Court then stated that the
effect of its order was " to
restore the judgments of the
Native Tribunal in the
combined cases 66/1933 and
67/1933 in the Uruala Native
Court as finally reviewed."
This did not refer to the
original judgments now
relied upon by the
appellants and did not have
the effect of re-instating
them.
For these reasons the appeal
must fail. But before
leaving the matter we think
it desirable to point out
that in our view the learned
trial Judge was wrong to go
into the question of whether
the land now in dispute is
the same as that in dispute
in the Uruala Native Court
in 1933, and to find that
identity was not proved. 'rhe
identity was one of the
agreed facts in the case, it
was relied upon by both
parties in their pleadings,
and since one of the objects
of pleadings is to shorten
proceedings by ascertaining
what facts are agreed so
that evidence need not be
led to prove~ them, the
Court should have accepted
this agreed fact as
established without proof.
We may add that the question
as to the effect of the
orders of Messrs. Leeming
and .Jones was a question of
law which appeared from the
pleadings and in our opinion
it would have been better if
the Court below had decided
the question of law arising
on the
res judicata
£leas of both parties as a
preliminary point before
going into the general
evidence on the merits of
the claim and defence so
that at the outset of the
trial on the merits the
parties and the Court would
have known the exact
position as regards the
pleas of
res judicata
and therefore the exact
issues to be tried.
The appeal is
dismissed with costs
assessed at 100 guineas.
