William Ude And Others V. Josiah Agu And Others (1961)

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BRETT, F.J

This case raises two short but important questions of interpretation. The appellants, who were plaintiffs in the Court below, brought an action in the High Court of the Eastern Region on behalf of themselves and the entire people of Ngwo claiming against the defendants on behalf of themselves and the people of Ifueke and Okwe-Uwani quarters of Ngwo a declaration that a certain piece of land was the communal property of the entire people of Ngwo and an injunction to restrain the defendants from exercising exclusive rights of ownership over the land.

The defendants pleaded an estoppel by record arising from the decision of the Ukana/Ngwo Native Court in Suit No. 89/56. Counsel for the plaintiffs conceded that if the judgment of the Native Court was still subsisting the plea of res judicata must succeed and the question whether it was subsisting was by agreement, argued as a preliminary point before Sir John Ainley, C.J., and was decided in favour of the defendants. The present appeal is brought against that decision.

A preliminary objection to the competency of the appeal was argued by counsel for the respondents, who submitted that the decision appealed against was an interlocutory one, and that the notice of appeal was invalid first because the leave of the trial Judge was not obtained as, at the material time, was required by section 3 (b) of the Federal Supreme Court (Appeals) Ordinance, and secondly be-cause the notice of appeal was not entered until the time limit of fourteen days for appealing against an interlocutory decision had expired. We overruled the objection but did not at that stage state our reasons. In England, it appears from the notes in the Annual Practice to 0.58 r.4 of the Rules of the Supreme Court that the Court of Appeal has at different times adopted two different tests for determining whether a decision is an interlocutory or a final one for the purposes of an appeal. One, which the editors of the Annual Practice say is generally preferred is that stated by Lord Alverstone, CJ, in Bozson v. Altrincham U.D.C. (1903) 1 K.B. 547

“Does the order as made finally dispose of the rights of the parties? If it does then I think it ought to be treated as a final order; but if it does not it is then, in my opinion, an interlocutory order’.

The other, as stated in Salaman v. Warner (1891) 1 O.B. 734, is that an order is an interlocutory order unless it is made on an application of such a character that whatever order had been made thereon must finally have disposed of the matter in dispute. Thus one test looks at the nature of the proceedings; the other (which is generally preferred) looks at the order made.

In Blay v. Solomon(11947) 12 W.A.C.A. 175 the West African Court of Appeal followed the test which looks at the order made, and in my view it is clearly the proper test for this Court to adopt, particularly having regard to the fact that there is a constitutional right of appeal against a final decision of a High Court sitting at first instance, whereas am appeal against an interlocutory decision is now left to be conferred by legislation and no such legislation has yet been enacted, so that an appeal does not at present lie at all against an interlocutory decision.

I now turn to the point of substance in the appeal itself. The decision of the Native Court was given on the 11th September, 1956. An appeal lay to the District Officer and notice of appeal was duly given on the 22nd September. On the 21st March, 1957, the District Officer delivered his judgment, of which the material part reads-

The proceedings before the Native Court must be set aside and, in accordance with section 28(1)(b) of the Native Courts Ordinance, I therefore set aside the judgment of the Native Court and order that this case be retried before the High Court of Enugu.

If the District Officer had been exercising his powers of review under section 28(1)(b) of the Native Courts Ordinance (herein after referred to as the Ordinance) he would have had jurisidiction to make such an order but irrespective of the question whether a District Officer to whom an appeal has been brought has power to carry out a review instead (as to which I express no opinion) it is common ground that the order was not made until after a period of six months from the termination of the proceedings in the Native Court had expired, and that on the 21st March, 1957, section 28(3) of the Ordinance precluded the District Officer from making any order under section 28(1).

Mr. Aniagolu, for the appellants, submits, however, that the order was, in part at least, one which the District Officer had power to make under section 40(1) of the Ordinance, which deals with powers on appeal, and he cites the decision of the Privy Council in Forfie v. Seifah (1958) 1 All E.R. 289 as authority for saying that the reference to the wrong section does not invalidate the exercise of the power. I agree that the reference to section 28 (1)(b) may be disregarded and that if the District Officer had power to make the order under section 40(1) it was a valid order. The appeal turns, therefore, on the effect of section 40(1), which read at the material time:-

40. (1) A native court of appeal, a magistrate’s court, the High Court, a district officer, a Resident or the Governor, in the exercise of his appellate jurisdiction under this Ordinance, may:-

(a) after rehearing the whole case or not, make any such order or pass any such sentence as the court of first instance could have made or passed in such cause or matter;

(b) order any such cause or matter to be reheard before the court of first instance or before any other native court or before any magistrate’s court.

The District Officer had thus no power, in the exercise of his appellate jurisdiction, to order the case to be retried before the High Court, but Mr. Aniagolu has submitted that even if the second part of the order made by the District Officer was a nullity the District Officer nevertheless had power to set aside the judgment of the Native Court without making any other order, and that he made a valid exercise of that power. Under paragraph (a) of section 40(1) of the Ordinance the District Officer had power, on this submission, to deprive the plaintiff of judgment, just as the court of first instance had power to dismiss the case. Under paragraph (b), the submission is that an order for rehearing involves the setting aside of the judgment of the Native Court and that there may be a valid setting aside of the judgment even If the order for rehearing is invalid.

In my opinion these submissions fail and Sir John Ainley, C.J., was right to reject them. If a judgment is merely set aside and no further order is made, the position is as if the court of first instance had given no judgment at all. The power to make such order as the court of first instance could have made does not include the power to produce such a result as this, and it is quite impossible to derive a power of merely setting aside a judgment from paragraph (a) of section 40(1). As for paragraph (b), it is well settled that an order for rehearing impliedly set aside the judgment appealed against, but the only power expressly conferred by the paragraph is the power to order a rehearing, and I am unable to accept the sub-mission that a power which is merely consequential or ancillary can be exercised independently of the valid exercise of the power conferred expressly. As Sir John Ainley, C.J., put it “A naked power to set aside judgments is not provided for by section 40”.

Mr. Aniagolu argued that the District Officer’s order setting aside the judgment was valid until it was itself set aside on appeal or by order of certiorari, but I agree with Sir John Ainley, C.J., in regarding the order as a nullity, and no formal order is required in order to deprive it of legal effect.

For these reasons I consider that the Court below came to the right decision and I would dismiss the appeal, with costs assessed at 37 guineas.

Other Citation: (1961) LCN/0935(SC)