Appeal Court. 30 .August, 1934. Appeal from Supreme Court

Title to Native land-Prayer for Title and Injunction-Jurisdiction of Trial Court-" Re.- Judicata" discussed.

The facts of this case are sufficiently set out in the judgment.

 C. W. Clinton for Appellant.

M. Thompson for Respondents.

The following judgment was delivered: DEANE, C.J., GOLD COAST.

This is an appeal from Graham Paul, J. sitting in the Divisional Court. The plaintiffs sued as representing the Odekpe people praying as against the defendant, who represented the Umuoputa Orifite family, a declaration that they were entitled to a parcel of land called lyiowa situate at Onitsha and delineated in red on a plan "F" put in evidence, and an injunction to prevent the defendant, his servants and agents entering on the said land. The learned Judge gave the declaration as asked and also granted the injunction, but the latter in a modified form allowing the inhabitants of the village on the land known as Mbanefo village to continue in the occupation of their houses but providing that any farming on the land should be subject to the permission of the plaintiffs and the customary harvest tribute-he also provided that the cutting of palm nuts or tapping of palm trees by the defendants should be subject to the same restrictions, and that no' new buildings should be erected on the land without the permission of the plaintiffs. From this decision the defendants have appealed. The plaintiffs' case was that the Odekpe people have owned this land and exercised rights of ownership over it from time immemorial, and that they had themselves allowed Mbanefo, who was originally sued as defendant,  having been substituted for him on his death after action brought, to settle on the land as their tenant after which he had by exercising the right to let out the land to others under the claim of being the owner caused them to institute this suit. The defendant on his side claimed that the land, save for a small portion, belonged to the. Umuoputa family of Orifite from time immemorial, and that they had allowed the Odekpe people to settle on the land. The learned Judge, after hearing the witnesses on both sides, for reasons given in his judgment held that he believed the plaintiffs' and disbelieved the defendant's story and gave judgment accordingly

Now although one of the reasons given for appealing is that the decision was against the weight of evidence, no argument was  advanced to us on that point by the appellant's Counsel for the very good reason no doubt that the evidence, as I understand it, is overwhelmingly in favour of the plaintiffs, and I do not therefore propose to discuss this ground of appeal or the reasons given by the learned Judge for arriving at his decision, but will content  with saying that in my opinion the learned Judge had ample material on which to base his conclusions.

I must however examine the reasons put forward on behalf of the defendant why this judgment should be set aside-they are two (1) that the Divisional Court had no jurisdiction to hear the case (2) that the plaintiffs were estopped per rem judicatam from establishing their case.

The appellant's submission as to the first point may be summarised shortly as follows :-This case was listed in the Provincial Court in the name of Okwosa Odua ct another v. Mbanefo: it was transferred to the Divisional Court by an order of the Acting Chief .Justice dated 8th July, 1932, under the name of OJ.~wosa Odua ct another v. Nwanze-the order substituting N wanZ"8 for Mbanefo was only made by Berkeley, J. in the Divisional Court on 19th January, 1933. The order of the Acting Chief Justice therefore was a nullity since at the time it was made there was no such case as Okwosa Odua ~ another v. Nwanze, in existence, and as the jurisdiction of the Divisional Court depends upon the order that Court, it. follows, has no jurisdiction. Now' it.' is obvious that even admitting all the facts as defendant would have them this objection is one of form rather than substance; since there is no question that the case which was transferred from', the Provincial Court to the Divisional Court was the identical case which was meant to be transferred, which was in fact transferred, and which is before us now; from the affidavit filed on behalf of the plaintiffs moreover, and from an examination of the proceedings of the Provincial Court., it is clear that the application to transfer the case under the name of Okwosa Odua- another v. N1ranze was made to the Acting Chief' Justice after the Resident. had, on notice given to him by defendants themselves, substituted Nwanze as defendant for Mbanefo on the death of the latter.

Moreover at the date of transfer the case was actually before the Provincial Court. with the name of Nwanze as defendant, for prior to that date it had first been transferred from the Provincial Court. to the Native Court and then retransferred from the Native Court. to the Provincial Court, and the name in which the order was made for such retransfer was Nwanze and not Mbanefo. The order of transfer, therefore! was a perfectly good and valid order at the time it was made, and the Divisional Court was thereby vested with jurisdiction. The fact that no formal order of substitution was drawn up by the Resident is of no consequence since the proceedings of the Provincial Court need not be formal ­nor can the subsequent order of Berkeley, J. in so far as it purports to substitute Nwanze for Mbanefo have any effect since it was superfluous, purporting to do in fact what had already been done.

There is to my mind nothing in this point.

Then we pass to the contention that the plaintiffs are estopped from succeeding per rem judicatam.-in support of this the defendant points to the results of three cases in the Native Courts.

The first was a case of Ugboma v. Agbmu &- Ors. decided in the Native Court of Onitsha on 4th September, 1929. It was a case of trespass brought on the criminal side of the Native Court and the order made was " case dismissed. If complainant likes he can sue Mbanefo and prove ownership of the land." It is clear, therefore, that the order of the Court settled no question of ownership as between Mbanefo and the complainant in that case whoever he was, and that no estoppel by res Judicata can arise out of these proceedings against the plaintiffs.

The next case was that of Mbanefo Akunn1:a of Orijitev. Ofoni of Sobo decided in the Native Court of Onitsha on 8th September, 1930. It was a claim by Mbanefo against a Sobo man for" (1) £43 rent and damages for plaintiffs' land, occupying two years ago (2) for defendant to quit from the land". The order of the Native Court was that defendant should " quit from the land in three months time, and pay £15 to plaintiff with costs in seven days time" . Now it is clear that in order to succeed on a plea of re.~ :iudicata a defendant. must prove that the same question with regard to the same subject matter as is being sought. to be litigated in the action before the Court, had been previously· litigated between himself (or his privy) and the plaintiff (or his privy  before a Court of competent. jurisdiction and that. plaintiff has been unsuccessful in that litigation. Has the defendant proved that ill these proceedings?

Take first the subject matter of the proceedings-we know in this case that a question is being litigated with regard to a large parcel of land, called Iyiowa, the boundaries of which are clearly defined by plan: in the native case there is nothing on the face of the proceedings to show what is the subject matter of the action. The defendant, however, relies upon the evidence of one Oputa Oneyelengba, a witness for the plaintiffs in this action who gave evidence on behalf of Ofoni in the native suit to supply the deficiency. Oneyelengba, it is true, admitted in cross-examination that the land with regard to which Ofoni was sued was Iyiowa land but there is nothing to show that the land called lyiowa, as understood in that case, is the same as Iviowa in this case: ill fact it is certain that it was a very small portion of Iyiowa land as herein described since Ofoni was said to be one of a number of tenants put on the land the greater part of which is in the occupation of the plaintiffs; so that the subject matter of Odua the two cases is certainly not identical. Nor were the questions & ors. discussed as to the subject matter identical in both cases. In this case the question  is- does lyiowa land belong to plaintiff or defendant ~ In the native case the question was-is Mbanefo entitled to recover £43 rent, and possession of the land on which he was a tenant from one Ofoni. The defendant's Counsel however argued that, even although the question for decision in the two cases appear on the face of the proceedings to be different, they are in reality the same since to decide the question of whether Ofoni had to pay rent to Mbanefo or not the question of ownership of the land had necessarily first to be decided. Now it is clear that in law a tenant cannot dispute his landlord's title, and the question whether or not Ofoni should pay rent to Mbanefo or be evicted from his tenancy did not necessarily depend upon the answer to the question who was the owner of the land. When this point was put to Counsel during the course of his argument his reply was that the £43 claimed was not really claimed for rent but for use and occupation of the land, and that no question Of tenancy was involved although prime facie  it might so appear, but on referring to the proceedings before the Native Court I find that Mbanefo was specially asked by the Court who leased the land to defendant?" and that his reply was" I leased it to him" -which· to my mind shows clearly that the question of the ownership of this land might very well not have been taken into account by the Native Court at all in arriving at their decision, especially as we know from the evidence that Mbanefo was lawfully in possession of a part of Iyiowa lan(l with the consent of the plaintiffs, and so might have been thought by the Native Court to be competent to give a lease on that account.

Nor are the parties in the two cases the same-Mbanefo was suing Ofoni on his own behalf in the native case-Ofoni was a Sobo man of a different tribe to the Odekpes who does not represent them in any way-and was not sued as representing' them-it follows therefore that neither plaintiffs nor defendant in this case are the same as in the native case. Counsel for defendant argued however that inasmuch as Oneyelengba, an Odekpe man, gave evidence in support of Ofoni's defence that he was not a tenant of Mbanefo but of the Odekpes, Ofoni must be held to be a privy of the Odekpe people. I cannot assent to such a proposition-a tenant is necessarily a privy, of his landlord where the title of the land he occupies is in question since he derives his title to be on the land from the landlord, but a landlord's title to his land could not possibly be held to be affected. by the result of any action brought against his tenant, who very probably knows nothing about his title unless possibly it could be shown that the landlord knew his title was to be attacked, identified himself with the tenant and authorised him to defend the title ·t!? the land on his behalf.